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Judgment
Abhay Shreeniwas Oka, J.—In view of the Judgment and Order dated 2nd May, 2014 passed by the Apex Court in Civil Appeal No. 5026 of 2014 under which a time-bound schedule has been fixed for the disposal of the Public Interest Litigation, we have given priority to the hearing of these Petitions.
The Navi Mumbai Municipal Corporation, the second Respondent in both the Petitions which is the Planning Authority within the meaning of the Maharashtra Regional and Town Planning Act, 1966 (for short "the MRTP Act") passed a resolution in its General Body Meeting held on 28th March, 2006 for initiating a process under sub-section (1) of section 37 of the MRTP Act for the purposes of grant of approval to the Draft Development Regulations, 1994 (inclusive of amendments made upto the year 2006). The admitted position is that in the draft Regulations which were placed before the General Body of the second Respondent-Municipal Corporation and which were approved in the meeting, the Regulation Nos. 16.4.12 and 16.4.13 were admittedly not included. 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 (for short "the disputed Regulations") in the draft which was actually published in the Official Gazette in accordance with sub-section (1) of section 37 of the MRTP Act. The challenge in this Petition is to the ultimate sanction granted by the State Government in exercise of powers under sub-section (2) of section 37 of the MRTP Act to the disputed Regulations.
FACTS OF THE CASE
With a view to appreciate the submissions made across the bar, it will be necessary to make a reference to the material factual aspects.
On 17th December, 1991, in exercise of powers under the then Bombay Provincial Municipal Corporation Act, 1949 (now known as the Maharashtra Municipal Corporations Act, 1949) (for short "the Municipal Corporations Act), the second Respondent-Municipal Corporation was established. It appears that initially all 44 villages out of the twin city of Navi Mumbai were included in the limits of the Municipal Corporation. On 8th June 2007, 14 villages included in the sanctioned Regional plan of the Mumbai Metropolitan Regional Development Authority (for short "MMRDA") were excluded.
The second respondent Municipal Corporation adopted General Development Control Regulations for Navi Mumbai, 1975 (for short "the GDCR") made by the City and Industrial development Corporation of Maharashtra Limited (for short "CIDCO"). The Municipal Corporation made an exercise of framing its own Draft Development Control Regulations in the year 1994 which were eventually submitted to the State Government on 8th May, 1995 for its approval. It appears that the State Government suggested the modifications to the said Draft for giving effect to various directive issued by it from time to time.
We must note here that the second Respondent-Municipal Corporation is the Local Authority within the meaning of sub-section (15) of section 2 of the MRTP Act. Under sub-section (19) of section 2 of the MRTP Act, a Planning Authority means a Local Authority and that is how the second Respondent-Municipal Corporation is the Planning Authority.
Before the General Body Meeting of the second Respondent held on 28th March, 2006, a proposal in the form of a letter dated 14th March, 2006 of the Commissioner of the said Municipal Corporation was placed for consideration. In the said letter, it was stated that the Draft Development Control Regulations, 1994 as amended upto January, 2006 were being placed before the General Body for its approval and for the purposes of taking a decision for inviting objections and suggestions in accordance with sub-section (1) of section 37 of the MRTP Act. On the basis of the said letter, there was a discussion in the General Body Meeting and the Resolution No. 859 was unanimously passed by the General Body. By the said Resolution, it was resolved that permission is granted to publish the Draft Development Regulations (amended up to January, 2006) in accordance with section 37 of the MRTP Act in the Maharashtra Government Gazette for the purposes of inviting suggestions and objections in writing from the members of the public. It was further resolved that an authority be conferred on the Municipal Commissioner to submit a report to the State Government after taking into consideration the objections and suggestions and after giving an opportunity of being heard to those who have submitted objections and suggestions. The said Resolution was implemented and the Draft Development Regulations were notified on 10th April, 2006. 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. But, the same were incorporated in the draft notified on 10th April, 2006 under the signature of the Commissioner of the Municipal Corporation in accordance with subsection 1 of section 37 of the MRTP Act. On 12th December, 2007, the State Government granted partial approval to the Draft Development Control Regulations. The approval to the disputed Regulations was granted on 21st July, 2008. We must note here that even the Petitioner submitted his own objections and suggestions to the draft published on 10th April 2006.
The PIL No. 110 of 2009 was filed on 6th March, 2009 wherein a Writ of Mandamus is sought for declaring the disputed Regulations sanctioned by the State Government on 21st July, 2008 as null and void. On 14th January, 2010, Rule was issued in the PIL and this Court granted interim relief in terms of prayer clause (b) of the PIL by which the Municipal Corporation was restrained from processing any proposal under the disputed Regulations and from granting benefits thereunder. While granting interim relief, the State as well as the second respondent Municipal Corporation were heard. Subsequently, a Division Bench of this Court vacated the interim relief on 2nd August, 2012. In the Appeal preferred by the Petitioner for challenging the said order, by the order dated 2nd May, 2014 in Civil Appeal No. 5026 of 2014, the Apex Court restored the interim relief and a directed time-bound disposal of the PIL. By a subsequent order of this Court, the fourth Respondent was impleaded as a party Respondent No. 4.
An order dated 29th July 2010 was passed in Public Interest Litigation No. 99 of 2005 (Mumbai Citizens Group Vs. The State of Maharashtra and others) by a Division Bench of this Court by which the Note No. 2 to the Regulation No. 38.1 of the Development Control Regulations of the second respondent Municipal Corporation as amended by the notification dated 21st July 2008 was stayed. The fourth Respondent in the PIL No. 110 of 2009 filed Writ Petition No. 5997 of 2012 for seeking a writ of mandamus directing processing of the application for redevelopment made by the fourth respondent in accordance with the aforesaid order dated 29th July 2010 was passed in Public Interest Litigation No. 99 of 2005. By order dated 12th July 2012, the said Writ Petition was ordered to be tagged with the PIL No. 110 of 2009.
SUBMISSIONS
The petitioner appearing in person in PIL pointed out that he had applied for a copy of the draft of the Development Regulations of the year 1994 which was placed before the General Body Meeting held on 28th March 2006 as well as the minutes of the General Body Meeting. He invited our attention to the disputed regulations namely the regulation No. 16.4.12 and 16.4.13. Inviting our attention to the resolution No. 859 dated 28th March 2006, he urged that the resolution does not confer any authority on the Commissioner of the said Corporation or any Officer or the authority to amend the draft of the Development Control Regulations which was approved by the General Body. Inviting our attention to the reply filed by Shri Sanjay Shantaram Banait, Assistant Director of Town Planning of the said Municipal Corporation, he urged that even the said reply does not disclose that the changes were effected by the Commissioner by adding the disputed regulations. Inviting our attention to the information supplied to him under the Right to Information Act, 2005 (for short "the RTI Act"), he urged that the documents relating to incorporation of the disputed regulations before the publication of the draft were not available in the office of the Municipal Corporation and, therefore, the same could not be supplied to him. He pointed out that the Planning Authority-the Municipal Corporation approved the draft Development Regulations to be notified under sub-section (1) of section 37 which admittedly did not include the disputed regulations. He urged that the said two disputed regulations could not have been notified at all for inviting the objections and suggestions. Inviting our attention to the copy of the draft Development Control Regulations approved in the General Body meeting of 28th March 2006, he pointed out that though a footnote has been added below the regulation No. 16.4.13 that the disputed regulations have been suggested and approved in the General Body meeting dated 28th March 2006, admittedly, the said endorsement in the form of the foot note is completely erroneous as it is not established that the disputed regulations were added in the draft in the said meeting. His submission is that the entire procedure followed as regards the incorporation of the disputed regulations is completely illegal and will have to be set aside. He has also made submissions on merits of the disputed regulations by contending that the same show non-application of mind. His submission is that there is a complete non-application of mind by the State Government. He invited our attention to the report submitted by the Committee appointed by the Municipal Corporation to give hearing to the suggestions and objections. He pointed out that even the said Committee did not recommend the incorporation of the disputed regulations. He pointed out that perhaps the Director of Town Planning was aware that the footnote below the disputed regulation No. 16.4.13 was completely false in as much as the disputed regulations were never incorporated in the draft Development Control Regulations in the meeting held on 28th March 2006. Instead of making further enquiry as to how the disputed regulations were incorporated, the Director simply recommended the removal of the foot note. Inviting our attention to the report submitted by the Municipal Commissioner and other members of the Committee appointed to hear the objections under sub-section (1) of section 37 of the MRTP Act, he pointed out that the Committee was of the view that the FSI of 1.5 should not be provided for the plots which are originally allotted for residential purposes. He pointed out that the Committee observed that it was not against the mixed use as provided in the disputed regulation 16.4.13, but the Committee was of the view that the FSI of 1.5 should not be allowed for the plots originally allotted for residential purposes. He urged that the disputed regulations are arbitrary for various reasons. He, therefore, urged that on account of blatant illegalities, impugned regulations deserve to be quashed and set aside.
The learned senior counsel for the second respondent-the Navi Mumbai Municipal Corporation submitted that it is the Resolution No. 859 which confers power on the Municipal Commissioner to submit a draft for approval of the State Government. He urged that under sub-section (1) of section 37, the Planning Authority while submitting the draft for approval can always modify the original draft which is notified for inviting the objections and suggestions. He urged that though the Municipal Corporation is unable to produce the record to show that it was the Municipal Commissioner who carried out modifications in the approved draft by incorporating the disputed regulations, there is nothing illegal about the incorporation of the said disputed regulations in the draft which was published. He urged that the disputed regulations could have been always incorporated while submitting the draft Regulations for approval of the State Government. He urged that there is nothing arbitrary or illegal about the disputed regulations.
The learned counsel for the fourth respondent has made detailed submissions for opposing the PIL as well as in support of the Writ Petition No. 5997 of 2012 filed by the said respondent. Her submission is that the object of issuing a notification in official Gazette of the proposed modification under sub-section (1) of section 37 is to put the members of the public to a notice. She urged that the disputed regulations were included in the draft published along with the notice. She pointed out that even the petitioner filed objections to the draft published in accordance with sub-section (1) of section 37. Her contention is that even assuming that the disputed regulations were not the part of the draft Regulations approved by the General Body of the Municipal Corporation, while submitting the draft for approval to the State Government, the Municipal Corporation being the Planning Authority could always have included the disputed regulations in the draft Regulations. She urged that even while exercising the power of granting approval/sanction under sub-section (2) of section 37, the State Government could have incorporated the disputed regulations.
The submission of the learned counsel for the fourth respondent is that the alleged defect of not including the disputed regulations in the draft Regulations approved by the Municipal Corporation in the General Body Meeting is merely a procedural defect which will not invalidate any further steps taken. She relied upon the various decisions in support of her submission. The said decisions are in the case of Municipal Board, Sitapur Vs. Prayag Narain Saigal and Firm Moosaram Bhagwan Das, , B.K. Srinivasan and Others Vs. State of Karnataka and Others, and State of U.P. Vs. Harendra Arora and Another, .
She submitted that in any event, the incorporation of the disputed regulations in the sanctioned Development Control Regulations is a matter of policy. She pointed out various decisions of the Apex Court which lay down that the scope for interference for a writ Court in the matters of policy is very limited. She submitted that even otherwise, the function of sanctioning a Development Plan partakes character of a legislative function. Relying upon the decisions of the Apex Court, she urged that in any event, considering the plight of the members of the fourth respondent, grant of additional FSI up to 1.50 is in the public interest and surely in a PIL, this Court cannot interfere in the decision taken in the larger public interests. She relied upon the decisions of the Apex Court in the cases of the Pune Municipal Corporation and Another Vs. Promoters and Builders Association and Another, as well as the Promoters and Promoters and Builders Association of Pune Vs. Pune Municipal Corporation and Others, . Inviting our attention to the averments made and the reliefs sought in Writ Petition No. 5997 of 2012, she urged that the order dated 29th July 2010 in PIL 99 of 2005 holds the field. She submitted that she has sought an amendment for incorporating the prayer in the alternative directing the second respondent-Municipal Corporation to consider the pending development proposal of the petitioner in the said Writ Petition under regulation 38(1) of the sanctioned Development Control Regulations. In support of this prayer, she relied upon the aforesaid order of the Division Bench in PIL 99 of 2005. We must note here that as the Apex Court has fixed the time bound programme for disposal of the PIL, we did not grant time to the petitioner to carry out the amendment as aforesaid, but we had put the parties to the notice that the Court will consider on merits the said prayer made in the alternative of directing the Municipal Corporation to consider the pending development proposal of the petitioner in the said Writ Petition in accordance with DCR 38(1) of the Development Control Regulations.
We must also note here that the learned senior counsel for the Municipal Corporation tried to supplement his arguments by relying upon the powers of the Commissioner under section 68 of the Municipal Corporations Act read with the power of delegation under section 151 of the MRTP Act. The submission is that the Municipal Commissioner by virtue of section 68 is empowered to exercise the powers of the Corporation even under the provisions of the other enactments such as MRTP Act. The learned counsel for the intervenor in the PIL supported the submissions made by the learned counsel representing the fourth respondent.
CONSIDERATION OF SUBMISSIONS IN PUBLIC INTEREST LITIGATION
We have given careful consideration to the submissions. It will be necessary to make a reference to section 37 of the MRTP Act which reads thus:
Modification of final Development Plan-
(1) Where a modification of any part of or any proposal made in a final Development Plan is of such a nature that it will not change the character of such Development Plan, the Planning Authority may, or when so directed by the State Government [shall, within ninety days from the date of such direction, publish a notice] in the Official Gazette [and in such other manner as may be determined by it] 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 notice on all persons affected by the proposed modification and after giving a hearing to any such persons, submit the proposed modification (with amendments, if any), to the State Government for sanction.
(1A) If the Planning Authority fails to issue the notice as directed by the State Government, the State Government shall issue the notice, and thereupon, the provisions of sub-section (1) shall apply as they apply in relation to a notice to be published by a Planning Authority.]
(1AA) (a) Notwithstanding anything contained in sub-sections (1), (1A) and (2), where the State Government is satisfied that in the public interest it is necessary to carry out urgently a modification of any part of, or any proposal made in, a final Development of such a nature that it will not change the character of such Development Plan, the State Government may, on its own, publish a notice in the Official Gazette, and in such other manner as may be determined by it, 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 notice on all persons affected by the proposed modification and the Planning Authority.
(b) 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 the copies of such objections and suggestions from the Government.
(c) The State Government shall, after giving hearing to the affected persons and the Planning Authority and after making such inquiry as it may consider necessary and consulting the Director of Town Planning, by notification in the Official Gazette, publish the approved modification with or without changes, and subject to such conditions as it may deem fit, or may decide not to carry out such modification. On the publication of the modification in the Official Gazette, the final Development Plan shall be deemed to have been modified accordingly.]
(1B) Notwithstanding anything contained in sub-section (1), if the Slum Rehabilitation authority appointed under section 3A of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, is satisfied that a modification of any part of, or any proposal made in, a final Development Plan is required to be made for implementation of the Slum Rehabilitation Scheme declared under the said Act, then, it may publish a notice in the Official Gazette, and in such other manner as may be determined by it, 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 notice on all persons affected by the proposed modification, and after giving a hearing to any such persons, submit the proposed modification, and after giving a hearing to any such persons, submit the proposed modification (with amendments, if any), to the State Government to sanction).
(2) The State Government may, [make such enquiry as it may consider necessary] and after consulting the Director of Town Planning by notification in the Official Gazette, sanction the modification with or without such changes, and subject to such conditions as it may deem fit, or refuse to accord sanction. If a modification is sanctioned, the final Development Plans shall be deemed to have been modified accordingly.
We have already noted the admitted position that the second respondent-Navi Mumbai Municipal Corporation is the Planning Authority within the meaning of the MRTP Act. At this stage, we must note that as per section 5 of the Municipal Corporations Act, a Municipal Corporation under the Municipal Corporations Act is a body corporate having perpetual succession and a common seal. Subsection (2) of section 5 provides that a Municipal Corporation shall consist of elected Councillors elected directly at the ward elections and nominated Councillors. Thus, a Municipal Corporation comprises of the elected as well as the nominated Councillors and therefore, all the powers of the Municipal Corporation or the things which are required to be done by the Municipal Corporation are required to be normally exercised or done by the elected as well as the nominated Councillors in the meeting of the Corporation which is popularly called as a General Body meeting of the Municipal Corporation.
Section 37 provides for the modification of the final Development Plan of such a nature which will not change the character of such Development Plan. The Development Control Regulations form a part of the Development Plan. On plain reading of subsection (1) of section 37, it provides that either the Planning Authority may initiate a proposal for modification of the final Development Plan or the State Government can direct the Planning Authority to initiate the proceedings for modification of the final Development Plan. In the event there is a direction issued by the State Government to initiate a procedure under sub-section (1) of section 37 and if the Planning Authority fails to issue a notice in terms of sub-section (1) of section 37, the State Government can issue the notice by exercising powers under sub-section 1(A) of section 37. Sub-section (2) confers power on the State Government to sanction the modification proposed with or without such changes and subject to such conditions as it may deem fit. It also confers a power on the State Government to refuse to accord sanction. The State Government is required to exercise the power under sub-section (2) after consulting the Director of Town Planning.
In the present case, the procedure for the modification of the final Development Plan for incorporating the Development Control Regulations in the final Development Plan was admittedly initiated by the Municipal Corporation which is the Planning Authority and the same was initiated by passing the Resolution No. 859 dated 28th March 2006. Sub-section (1) of section 37 mandates that the Planning Authority must publish a notice in Official Gazette inviting objections and suggestions from any person with respect to the proposed modification. Thus, the Planning Authority is firstly required to decide that a proposal needs to be initiated for modification of final Development Plan. Mandate of sub-section (1) of section 37 is that a notice is to be published in Official Gazette inviting objections and suggestions from any person with respect to the proposed modification. Thus, what is contemplated is that even the proposed modification should be notified. Unless the proposed modification is notified along with the notice, it is not possible for any one to submit objections and suggestions to the proposed modification. What should be the proposed modification is the decision of the Planning Authority unless there is a specific direction issued by the State Government to initiate proceedings under sub-section (1) of section 37 for a particular modification. After the proposed modification is notified for inviting the objections and suggestions, after considering the objections and suggestions, the Planning Authority is required to submit the proposed modification with amendments, if any, to the State Government for sanction. The second part of sub-section (1) of section 37 authorises the Planning Authority to modify the proposed draft notified along with a notice under sub-section (1) of section 37 while submitting the same for sanction under sub-section (2) of section 37.
Now, it will be necessary to make a reference to the resolution No. 859 passed on 28th March 2006. The resolution was passed on the basis of the letter dated 14th March 2006 addressed by the Municipal Commissioner to the Planning Authority. The letter specifically refers to the Draft Development Regulations, 1994 (modified up to 2006). The letter of the Commissioner records that the objections and suggestions are required to be invited with reference to the Draft Development Regulations, 1994 (modified up to January 2006). The letter records that as a part of the action under section 37 of the MRTP Act, approval/sanction of the General Body of the Planning Authority was necessary to the Draft Development Regulations. Thus, the draft of the Development Regulations of the year 1994 which was modified up to 2006 was placed before the Planning Authority. It is true that in the minutes it is recorded that a suggestion was made by the Mayor that Councillors may submit their suggestions to the draft which should be considered by the concerned department. However, what is material is the Resolution No. 859. The gist of the Resolution No. 859 which is in Marathi language is as under:
(a) New Bombay Municipal Corporation has prepared draft Development Control Regulations, 1994 (inclusive of the amendments up to January 2006).
(b) An approval is granted for inviting objections and suggestions to the said draft Development Control Regulations as per section 37 of the MRTP Act.
(c) An authority was conferred on the Municipal Commissioner to give an opportunity of being heard to those who have submitted objections and suggestions and to submit a final report to the State Government.
On plain reading of the said resolution, what was approved by the General Body of the Planning Authority was the Draft Development Regulations, 1994 (inclusive of amendments effected up to January 2006). The Resolution does not authorise any other Authority or Officer to modify the Draft Development Regulations, 1994 (inclusive of amendments effected up to January 2006) approved by the General Body before its publication in accordance with subsection (1) of section 37. The authority conferred on the Commissioner is limited to giving hearing to those who would submit objections and suggestions to the draft published in accordance with sub-section (1) of section 37 and to submit a final report. We must note here that the said Resolution does not authorise the Commissioner to make any amendment to the draft approved by the General Body before publishing it in accordance with sub-section (1) of section 37. As per the mandate of the sub-section (1) of section 37, only the proposed modification as approved by the General Body could have been published for inviting suggestions and objections.
The disputed regulations read thus:
"16.4.12: Mixed Use:
Plots allotted for Residential, Commercial (Business and/or Mercantile), institutional, Service Industry etc purposes may be allowed to utilise up to a maximum of 10% of the built up area for certain compatible uses other than the originally allotted use, as per Appendix-X subject to clearance from CIDCO, being the lessor of the land and payment of premium as may be determined by the Corporation from time to time.
16.4.13: Change of use
The plots allotted exclusively for Residential or Commercial (Business and/or Mercantile) uses which are situated on 20.0 m or wider roads and having 1000 sq. m or more plot area may be allowed to change the use to Residential + Commercial subject to payment of premium as may be determined by the Corporation from time to time and clearance from CIDCO being the lessor of the land provided further than, the Corporation while permitting change of use may stipulate any other conditions it may deem fit. After the institution of change of use, the changed use is entitled for the corresponding F.S.I. and other provisions applicable to such use, including parking facilities."
The perusal of the disputed regulations show that the same are of drastic nature having consequences. It will be necessary to make a reference to the footnote added below the disputed Regulation No. 16.4.13 which reads thus:
"These additional rules have been suggested and approved in the General Body Meeting of the Navi Mumbai Municipal Corporation dated 28.3.2006"
The specific contention of the petitioner as reflected from the petition is that the disputed regulations were never a part of the draft Development Control Regulations approved by the General Body vide Resolution No. 859 of 2006. It will be necessary to make a reference to reply filed on the behalf of the Municipal Corporation. The paragraphs 2 and 3 of the reply filed by Shri Sanjay Shantaram Banait, Assistant Director of Town Planning, Navi Mumbai Municipal Corporation read thus:
"2) I say that with respect to the contents of Para No. 5, the contention of the petitioner is incorrect and hence denied. It say that the General Body of Respondent Corporation, vide Resolution No. 859 dated 28/3/2006, had given powers to consider the various written suggestions made by the Hon''ble Members of the General Body and then to publish the proposed modifications for calling suggestions and/or objections from General public, to hear them and take decision and thereafter to submit final proposed modifications to the Draft Development Control Regulations to Government for sanction. I say that no written suggestions were made by the Hon''ble Members of the General Body. However, considering the essence of the discussions in the General Body the provisions regarding mixed use and change of use in consonance with the already existing policy of CIDCO, had been included though the same had not been reflected in the proceeding of the said General Body to avoid the contradiction between the provisions of CIDCO and Navi Mumbai Municipal Corporation.
I say that, subsequent to the discussion in the General Body meeting held on 27th and 28th March 2006, the respondent Corporation has included the provisions regarding mixed use and change of use vide Rule No. 16.4.12 and 16.4.13 respectively and published the Draft Development Control Regulations to invite suggestions and/or objections from general public, within stipulated period of 30 days, as per provisions of section 37 of the M.R.& T.P. Act, 1966. Hereto annexed and marked as Exhibit ''A'' is the notice published in the newspaper and Draft Development Control Regulation''s published in Official Gazette."
(Emphasis added)
What is sought to be contended is that the Resolution No. 859 gives power to the Commissioner to consider various written suggestions made by the Councillors of the General Body and then to publish the proposed modifications in accordance with subsection (1) of section 37. It further records that no written suggestions were made by any of the Councillors but "after considering the essence of the discussions" in the General Body, the disputed regulations were included though the same are not reflected in the proceedings of the General Body. The stand taken by the Municipal Corporation is far from being true. As noted earlier, the resolution does not authorise the Commissioner to modify the draft which was approved by the General Body. The affidavit itself records that the changes effected by incorporating the disputed regulations are not reflected in the proceedings of the General Body. Conveniently, in paragraph 2, the Officer has not disclosed the name or names of Officer/s who actually took a decision to incorporate the disputed regulations in the draft Regulations approved by the General Body. It is not the case made out in the affidavit that the Commissioner has himself done it. On this aspect, it will be necessary to make a reference to the information supplied to the petitioner under the Right to Information Act, 2005. The petitioner made an application on 3rd June 2009 seeking copies of the documents/records of the Planning Authority leading to the incorporation of the disputed regulations. The specific reply to the said application issued by the Public Information Officer of the Municipal Corporation is that the documents/records regarding the incorporation of the disputed regulations before the publication of the draft DCR could not be found in the records of the office and hence, could not be supplied. That is the reason why in the affidavit filed by the Municipal Corporation, it is not set out which Officer or which authority incorporated the disputed regulations in the draft to be published. It is merely stated that considering "the essence of the discussions", provisions regarding mixed use and change of use in consonance the policy of CIDCO have been included in the draft. Thus, it is not the stand taken by the Corporation that this act was done by the Commissioner himself or by any specified Officer. Thus, it follows that the subsequent incorporation of the disputed regulations in the Draft Regulations duly approved by the General Body is completely unauthorized.
We must note here that an attempt was made by the learned counsel for the fourth respondent to submit that none of the Councillors raised any objection to the incorporation of the disputed regulations in the published draft. Firstly, there is nothing on record to show that even the Municipal Councillors were made aware of the subsequent incorporation of the disputed regulations in the draft which was duly approved by the General Body. It is neither the case of the Municipal Corporation nor of the fourth respondent that while confirming the resolution dated 28th March 2006 in the next General Body meeting, the attention of the Councillors was invited to the fact that a change has been effected in the draft approved in earlier said meeting. It is not the case that the said change has been ratified in the next General Body meeting. It is not the case made out in the affidavit that the Municipal Councillors were made aware about the fact that the draft which was unanimously approved by the General Body has been modified before its publication. Moreover, there is nothing on record to show that while submitting the draft for approval of the State Government, it was never brought to the notice of the State Government that the disputed regulations were never a part of the resolution of the Planning Authority which proposed the modification to the sanctioned Development Plan by incorporating the Development Control Regulations.
Therefore, the admitted position which emerges is that the disputed regulations were never lawfully made a part of the draft Regulations duly approved by the General Body of the Planning Authority. There is nothing on record to show that the Municipal Commissioner incorporated the said disputed regulations in the draft Regulations which were unanimously approved by the General Body. At this stage, we may repeat that the resolution does not provide for any delegation in favour of the Municipal Commissioner to modify the Draft before its publication. The disputed regulations are not of formal nature. The same are substantive regulations. Thus, incorporation of the disputed regulations in the draft Regulations which were unanimously approved by the General Body is nothing but a gross illegality.
Hence, the argument of the learned senior counsel for the Municipal Corporation based on various provisions of the Municipal Corporations Act regarding the delegation of powers to the Municipal Commissioner need not be gone into as in the affidavit filed by the Municipal Corporation, it is not the case made out that it is the Commissioner who has purportedly exercised the delegated power by incorporating the disputed regulations in the draft sanctioned by the General Body. Nevertheless, we are dealing with the said submissions essentially based on section 68 of the Municipal Corporations Act:
Commissioner to exercise powers and perform duties of Corporation under other laws.
(1) Any powers, duties and functions conferred or imposed upon or vested in the Corporation by any other law for the time being in force shall, subject to the provisions of such law and to such restrictions, limitations and conditions as the Corporation may impose, be exercised, performed or discharged by the Commissioner.
(2) The Commissioner may with the approval of the Standing Committee by order in writing, empower any municipal officer to exercise, perform or discharge any such power, duty or function under the control of the Commissioner and subject to his revision and to such conditions and limitations, if any, as he shall think fit to prescribe."
On plain reading of sub-section (1) of section 68, powers, duties and functions conferred or vested in the Corporation by any other law for the time being in force can be exercised, performed or discharged by the Commissioner subject to said provisions of law. Therefore, it will be necessary to make a reference to the power to delegate conferred by the MRTP Act in the form of section 151 which reads thus:
Power to delegate: -
(1) The State Government may, by a notification in the Official Gazette, delegate any power exercisable by it under this Act, or rules made thereunder to any officer of the State Government [in such case and subject to such conditions, if any, as may be specified in such notification].
(2) The Director of Town Planning may, by an order in writing, delegate any power exercisable by him under this Act or rules thereunder to any officer subordinate to him in such case and subject to such conditions, if any, or may be specified therein.
(3) Any Regional Board, Planning Authority or Development Authority may, by a resolution, direct that any power exercisable by it under this Act, rules or regulations thereunder (Except the power to prepare any Regional plan, Development Plan, town planning scheme or the plan of the New Town or to make regulations) may also be exercised by any officer of the State Government with the previous consent of the State Government, the Regional Board, Planning Authority or local authority or Development Authority as may be mentioned therein, such cases and subject to such conditions, if any, as may be specified therein.
(4) The Town Planning Officer of any Regional Board, Planning Authority or Development Authority may, by an order in writing delegate any power exercisable by him under this Act, or rules or regulations thereunder to any officer of the Regional Board, Planning Authority or local authority or Development Authority in such cases and subject to such conditions, if any, as may be specified therein."
Sub-section (3) of section 151 is relevant which empowers the Regional Board, Planning Authority or the Development Authority to direct that any power exercisable by it under the MRTP Act, rules and regulations thereunder may be exercised by an Officer of the State Government. However, the said power of delegation does not extend to making regulations. The power conferred on the Commissioner under section 68 is subject to provisions of the MRTP Act which confers power of delegation on the Planning Authority to delegate powers to any Officer of the State Government. The power to delegate can be exercised with the consent of the Government. It specifically excludes the power to make regulations. On conjoint reading of section 68 of the Municipal Corporations Act and section 151 of the MRTP Act, the power to modify the Development Control Regulations could not have been exercised by the Municipal Commissioner. Therefore, an argument that the Commissioner exercised power of delegation has no basis and the same deserves to be discarded.
Thus, the scenario which emerges is that the Planning Authority while approving the proposed modification of the Development Plan by incorporating the Development Control Regulations did not provide for the inclusion of the disputed regulations. Someone has illegally and unauthorisedly incorporated the disputed regulations in the draft Development Control Regulations unanimously approved by the General Body of the Planning Authority. It is shocking to note that there is no record available with the Municipal Corporation as regards the incorporation of the two disputed regulations in the draft unanimously approved by the General Body. The Municipal Corporation is unable to throw any light on the question who has indulged in this illegality. The illegality does not stop here. In the true copy of the draft Development Regulations approved by the General Body on 28th March 2006 which was supplied to the petitioner under the RTI Act, below the disputed regulation No. 16.6.13, there is a footnote added which we have already quoted above. Blatant illegality has been committed by adding the footnote of two lines to the effect that the disputed regulations have been approved on 28th March 2006. The said footnote is completely false. Again it is not known as to who is the Author of the said illegality.
Thus, only conclusion which can be drawn is that some unknown person illegally and unauthorisedly inserted the disputed regulations in the draft which was unanimously approved by the General Body of the Municipal Corporation.
Before dealing with the submission made by the learned counsel for the fourth respondent that illegality is nothing but a procedural defect, it will be necessary to make a reference to the well settled legal principle which is restated by the Apex Court in the in its well known decisions in the cases of State of Uttar Pradesh Vs. Singhara Singh and Others, and Meera Sahni Vs. Lt. Governor of Delhi and Others, . In the case of Mira Sahni, in paragraph 35, the Apex Court has held thus:
"35 It is by now a certain law that an action to be taken in a particular manner as provided by a statute, must be taken, done or performed in the manner prescribed and in no other manner. In this connection, we may appropriately refer to the decision of this Court in Babu Verghese and Others Vs. Bar Council of Kerala and Others, wherein it was held as under: (SCC pp. 432033, paras 31-32)
"31 It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor (1875) 1 Ch D 426 which was followed by Lord roche in AIR 1936 253 (Privy Council) who stated as under: (IA pp. 381-82)
''where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.''
This rule has since been approved by this Court in Rao Shiv Bahadur Singh and Another Vs. The State of Vindhya Pradesh, and again in Deep Chand Vs. The State of Rajasthan, . These cases were considered by a three-Judge Bench of this Court in State of Uttar Pradesh Vs. Singhara Singh and Others, and the rule laid down in Nazir Ahmad case (supra) was again upheld. This rule has since been applied to exercise of jurisdiction by courts and has also been recognized as a salutary principle of administrative law."
(emphasis added)
The law laid down by the Apex Court will squarely apply to the facts of the present case.
As noted earlier, a proposal for modification of the final Development Plan can be initiated only in accordance with sub-section (1) of section 37. Going by sub-section (1) of section 37, the proposal can be initiated only by the Planning Authority either on its own or under the directions issued by the State Government. The State Government is empowered to issue directions to notify a proposal for modification of the final Development Plan. At this stage, we must note that the power of the State Government under Sub-section (1AA) of section 37 to require modification of the Development Plan is completely different which can be exercised in public interests where there is an urgency. It is neither the case of the State nor any of the respondents that the power has been exercised under sub-section (1AA) of section 37. The power is admittedly exercised under sub-section (1) of section 37. In the present case, there is no direction issued by the State Government to Planning Authority. As held earlier, the Planning Authority is the General Body which consists of elected Councillors and nominated Councillors. Therefore, only the General Body of the Planning Authority can decide what should be the proposed changes which are required to be notified. What can be notified by the Planning Authority is only the proposed change as may be approved by the General Body. When the proposal is initiated by the Planning Authority, only such modification as approved by the Planning Authority can be notified for inviting objections and suggestions. In the present case, these two disputed regulations were never approved by the Planning Authority and hence, the same could not have been notified and, hence, there was no occasion for any one to submit any objection or suggestion as regards the disputed regulations. It is pertinent to note that it is not the case of any of the respondents that the proposed modifications were incorporated by exercising the power of modification of the proposal which can be exercised again by the Planning Authority only after hearing all the objections and suggestions to the notified proposal. It is pertinent to note that it is not the case of both the State Government and the Municipal Corporation that the State Government was made aware of the fact that the disputed regulations were never approved by the General Body of the Planning Authority. In fact, there are averments made in the petition that only after the sanction was published by the State Government that the petitioner made enquiries and found that the disputed regulations were never approved by the Planning Authority. It is not at all the case of the State Government that the disputed regulations were included by exercising the power under subsection (2) of section 37 by consciously modifying the draft approved by the General Body of the Planning Authority.
Thus, the illegality committed goes to the root of the matter in as much as the disputed regulations could not have been a part of the draft of the Regulations approved by the General Body for notifying the same for inviting objections and suggestions. The second aspect which is very relevant is the failure of the Municipal Corporation to inform the State Government while submitting the draft in accordance with sub-section (1) of section 37 that the disputed regulations were never a part of the regulations approved by the General Body of the Planning Authority. It vitiates the decision making process of the State Government.
Therefore, it is impossible to accept the submissions canvassed across the bar that the illegality is purely of a procedural nature. In fact, the illegality is substantive in nature which directly affects the entire decision making process contemplated under sub-section (1) of section 37. As stated earlier, the said action is completely bad in law as per the law laid down by the Apex Court. The power of notifying the draft modifications proposed to the final Development Plan could have been exercised only in accordance with sub-section (1) of section 37 and not otherwise. An argument is canvassed that it is in public interest to tolerate the illegality on the ground that the disputed regulations are in public interest. We have already held that it is shocking to note that unanimous resolution passed by the General Body approving the draft Development Control Regulations has been illegally tampered by some unknown persons by incorporating the disputed regulations which are of drastic nature. Therefore, the entire process adopted under section 37 of the MRTP Act in relation to the disputed regulations will have to be held as completely illegal. It will be in the public interests not to tolerate such gross acts of blatant illegalities.
Therefore, it is not necessary for us to consider the other objections raised by the petitioner appearing in person in PIL on merits of the disputed regulations. We make it clear that either the Planning Authority or the State Government, notwithstanding this Judgment and Order, can always exercise powers under sub-section (1) of section 37 of the MRTP Act and initiate proceedings for incorporating the disputed regulations. If that is done, the Petitioner appearing in person can always raise the said objections at appropriate stage which are bound to be considered in accordance with law.
CONSIDERATION OF SUBMISSIONS IN WRIT PETITION
Now, we turn to the merits of the Writ petition filed by the fourth respondent in PIL. Reliance is placed by the petitioner in the said Writ Petition on the order dated 29th July 2010 passed by the Division Bench of this Court in PIL 99 of 2005. The said order extensively relies upon the disputed regulations. It appears from the said order that the fact that interim relief in terms of prayer clause (b) was granted in PIL on 14th January 2010 by another Division Bench was not brought to the notice of the said Division Bench. In the earlier part of this Judgment, we have referred to the said interim relief which prevented the Municipal Corporation from processing any proposal under the disputed regulations and from granting benefits under the disputed regulations. Now, we have held that the disputed regulations are illegal. Hence, the direction as sought above cannot be issued.
The submission of the learned counsel for the petitioner in the Writ Petition is that under the regulation 38 (1) of the Development Control Regulations, the petitioners are entitled to benefit of additional FSI. The same is submission made by the learned counsel for the Intervenor in the PIL.
In exercise of writ jurisdiction under Article 226 of the Constitution of India, this Court cannot issue a writ of mandamus directing the Planning Authority to decide the application under section 44 of the MRTP Act in a particular manner. It is ultimately for the Planning Authority to decide which regulations out of the Development Control Regulations are applicable to the development permission sought by an individual applicant. Therefore, we are unable to issue a writ directing consideration of pending application of the Petitioner in the said Writ Petition in accordance with Regulation No. 38(1) and it is for the Planning Authority to take an appropriate decision whether the said regulation 38 (1) is applicable.
As far as prayer clause (a) of the Writ Petition is concerned, it virtually seeks implementation of the order dated 29th July 2010 in Writ Petition No. 99 of 2005. As noted earlier, when the said order was passed, the interim relief granted in PIL No. 110 of 2009 was not brought to the notice of the concerned Division Bench which prevented the Planning Authority from processing any application under the disputed regulations and from granting benefits under the said regulations. Hence, the prayer (a) cannot be granted.
Therefore, we pass the following order:
In PIL No. 110 of 2009
(I) Rule issued in PIL 110 of 2009 is made absolute in terms of prayer clause (a). We, however, make it clear that we have made no adjudication on the merits of the disputed regulations subject matter of prayer clause (a) and it will be open for the Authorities to initiate a fresh action under sub-section (1) of section 37 for incorporation of the disputed regulations in the sanctioned Development Control Regulations in accordance with law and all contentions of the parties on that aspect are kept open;
(ii) There will be no order as to costs.
In Writ Petition No. 5997 of 2012
(i) We direct the Navi Mumbai Municipal Corporation to process the application under section 44 of the MRTP Act for grant of development permission made by the Petitioner in Writ Petition No. 5997 of 2012 in accordance with law;
(ii) We direct the Municipal Corporation to decide the said application as per the prevailing Development Control Regulations as expeditiously as possible and in any event within a period of three months from today;
(iii) We make it clear that the pending application of the Petitioner in Writ Petition No. 5997 of 2012 for grant of development permission will be processed by the concerned Authority of the Planning Authority which is empowered in law to do so; (iv) The Writ Petition is disposed of in terms of these directions;
(v) There will be no order as to costs.
(vi) All pending Civil Applications are disposed of.