Writ Petition No.1326 of 2001

11th February, 2002

Petitioner Counsel: Mr. R. S. PARSODKAR
Respondent Counsel: G. P., Mr. C. S. KAPTAN, Mr. S. K. MISHRA

JUDGMENT

V. M. KANADE, J. :- This Petition was admitted on 30th July, 2001 and the following order was passed :

Heard.

Rule.

Mrs. Jog, learned A.G.P. waives service for respondent 1 and 2.

Looking to the controversy involved in the writ Petition, we are of the view that it deserves to be heard at an early date.

Office is accordingly directed to post the writ petition for final hearing in the 2nd week of September-2001.

2. The matter is, therefore, taken up for final hearing today.

3. Brief facts giving rise to the present petition are as follows :

The petitioner no.1 is an association of licensed engineers of which the petitioners no.2 to 10 are the members. They have been issued with licenses by the Nagpur Municipal Corporation/Nagpur Improvement Trust and they are entitled to submit all the plans, related information, structural details and calculations of the buildings etc. and they are categorised as Licensed Engineers.

4. The petitioners have filed this petition under Article 226 of the Constitution of India and are challenging the Regulation No.6.4 as also Appendix-C of the Development Control Regulations as per Notification dated 31-3-2001 approved by the respondent no.1 for the City of Nagpur. The petitioners are inter alia challenging the Notification on the ground that the said notification came to be approved by the Government and though there was substantial change made by virtue of the said Notification, no direct objections/suggestions were called from the affected persons and therefore, it is contended that the mandatory provisions of Section 31(1) of the Maharashtra Regional Town Planning Act have not been followed.

5. The petitioner no.1 association has been established for the betterment of its members, who are licensed engineers of the Nagpur Municipal Corporation and the Nagpur Improvement Trust. The Nagpur Improvement Trust is constituted under the Nagpur Improvement Trust Act, 1936 and the said Nagpur Improvement Trust (hereinafter referred to as 'NIT' is working for the development of area of Nagpur and is not under the jurisdiction of the Corporation and the Town Planning Authority since 1936. The N.I.T. Act is recognised as Planning authority under Section 2(15)(c)(iii) of the Maharashtra Regional Town Planning Act, 1936. Section 36 and 37 of the Act, gives an authority to the N.I.T. for framing an improvement scheme in respect of the area falling under its jurisdiction and, therefore, with a view to standardise the Development Control Rules, the Government has directed all the planning authorities including the Nagpur Municipal Corporation to make modification for the final development plan under Section 37 of the Maharashtra Regional Town Planning Act and to adopt standardised building regulation and development control rules and accordingly the Nagpur Improvement Trust has revised the building regulations and development control rules with certain modifications whenever necessary to suit the conditions prevailing in Nagpur and has forwarded proposal alongwith the revised draft development plans of Nagpur to Government for sanction on 11-10-1990. Under the said building regulation framed by the Nagpur Improvement Trust, the qualification and competence is prescribed in Appendix 'C'. Prior to the impugned notification being brought into force earlier in Appendix 'C', the qualification of licensed engineers/Architect for preparation of scheme and building permit and supervision was : person holding AMIE, degree, diploma (3 years) in Civil or Structural Engineering of recognised University or Government, licensed by the Authority. The license which was issued by the Authority was followed for one calendar year ending 31st December after which it was to be renewed annually. The said position regarding the qualification and competence of the Licensed Engineers was the same, right from the inception of the Nagpur Improvement Trust and thus there was no bifurcation in qualification as degree or diploma holder and the competence of work relating to building permit as enumerated in Clause 2.2 was the criteria.

6. The Director of Town Planning was of the opinion that the Regulations require substantial modifications and, therefore, by its modification dated 28-2-2000 published in the Government of Maharashtra Gazette dated 9-3-2000 and objections and suggestions were invited from the public as provided in Section 31(1) of the Maharashtra Regional Town Planning Act. It is the contention of the petitioners that the said objections and suggestions were invited in respect of other clauses and rule but not in respect of qualifications of engineers in any manner.

7. The petitioners submit that however in the final notification in respect of the said Regulations and Rules, in Appendix 'C' the qualification, competence, duties and responsibilities of the licensed technical personnel or architect for preparation of schemes for development, permission and supervision were changed drastically. It is contended by learned counsel appearing on behalf of the petitioners that Appendix 'C' is changed illegally without inviting objections as contemplated under Section 31(1) of the Maharashtra Regional Town Planning Act, 1966 and, therefore, the said notification is illegal and unconstitutional. Section 31(1) of the Maharashtra Regional Town Planning Act, 1966 reads as follows :

"Section 31(1) : Subject to the provisions of this section, and not later than one year from the date of receipt of such plan from the Planning Authority, or as the case may be, from the said Officer, the State Government may, after consulting the Director of Town Planning by notification in the Official Gazette sanction the draft Development plan submitted to it for the whole area, or separately for any part thereof, either without modification, or subject to such modifications as it may consider proper or return the draft Development plan to the Planning Authority or as the case may be, the said Officer for modifying the plan as it may direct or refuse to accord sanction and direct the Planning Authority or the said Officer to prepare a fresh Development plan :

Provided that, the State Government may, if it thinks fit, whether the said period was expired or not, extend from time to time, by a notification in the Official Gazette, the period for sanctioning the draft Development plan or refusing to accord sanction thereto, by such further period as may be specified in the notification :

Provided (further) that, where the modifications proposed to be made by the State Government are of a substantial nature, the State Government shall publish a notice in the Official Gazette and also in local newspapers inviting objections and suggestions from any person in respect of the proposed modifications within a period of sixty days, from the date of such notice".

8. The petitioners have also challenged the said Notification on various other grounds. However, it is not necessary to deal with the other grounds raised by the petitioners, in view of the admitted position that there has been non-compliance of the mandatory provisions of Section 31(1) of the Maharashtra Regional Town Planning Act, 1966. It is an admitted position that the change which is sought to be made in Appendix 'C' is of a substantial nature and as such it was necessary to invite objections and to give hearing to the persons who are affected by the change and, thereafter, to issue the said notification.

9. We have heard the learned counsel appearing on behalf of the petitioners and respondents, perused the petition and Annexure thereto and affidavit in reply filed by the respondents. It is an admitted position that no objections were invited before changing the qualifications and competence of the personnel as required under Section 31(1) of the Maharashtra Regional Town Planning Act, 1966.

10. In our view, at this stage, it is not necessary to go into the other challenges i.e. raised by the petitioners and the petition is liable to be allowed in terms of prayer clause (A) of the petition. Needless to state that the respondents are entitled to follow the procedure as prescribed under Section 31(1) of the Maharashtra Regional Town Planning Act, 1966 by inviting objections and suggestions from the petitioners and other affected persons and after considering the said objections and suggestions amend the said Appendix 'C' in accordance with the law.

11. With the above observations, the Writ Petition No.1326 of 2001 is allowed. Rule made absolute in terms of prayer clause (A). Under the circumstances, there shall be no order as to costs.

Order accordingly.