Writ Petition No.1980 of 2005

17th October, 2005

Petitioner Counsel: Mr. KALSEKAR,Ms. NAMRATA JAYKAR,M. V. Jaykar & Co.
Respondent Counsel: Mr. RAVI KADAM,Ms. MEENA DOSHI,Mr. ROHIT KAPADIA,Mr. PERCY GHANDY,S. KANTHAWALA,Federal & Rashmikant
Other Counsel: Mr. J. J. BHATT,Rashmikant

JUDGMENT

S. C. DHARMADHIKARI, J.:- By this petition under Article 226 of the Constitution of India, the petitioners pray for issuance of a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ, order or directions declaring Section 37(1AA) of the Maharashtra Regional & Town Planning Act 1966 as violative of the 74th Constitutional Amendment to the Constitution of India (Article 243(W)) and Schedule XII items i) and ii) thereto as also Maharashtra Metropolitan Planning Committees Act 1999. It is not necessary to make a reference to other reliefs sought in this petition because it is common ground that they are identical to those claimed in Public interest Litigation/Writ Petition No.482 of 2005. Our judgment and order in that petition would, therefore, govern those reliefs. The challenge to the constitutional validity of Section 37(1)(AA) of the Maharashtra Regional and Town Planning Act, 1966 arises in the following factual background.

2. Petitioners before us are public spirited citizens. They are concerned with reduction of open spaces and public amenities as well as areas earmarked for public housing, by Planning Authority and State of Maharashtra, in Greater Mumbai. It is their case that if lung space as also the areas earmarked for public housing are reduced then the constitutional mandate enshrined in Articles 14, 21 and 48A would be defeated and frustrated. The reason which has prompted them to come to this Court is because of an amendment to the Development Control Regulations for Greater Mumbai and more particularly Regulation 58 thereof.

3. For brevity's sake Constitution of India shall be referred to as the Constitution, Maharashtra Regional and Town Planning Act, 1966 shall be referred to as MRTP Act, Development Control Regulations for Greater Mumbai as D. C. Rules, Mumbai Municipal Corporation as BMC, National Textile Corporation as NTC and Maharashtra Housing and Area Development Authority as MHADA.

4. Petitioner No.1 is a Doctor by profession and was a Member of Parliament. He is a trustee of Bombay Port Trust and Jawaharlal Nehru Port Trust. Petitioner no.2 was Municipal Councillor and ex-mayor of Mumbai. He is an active social worker. Similarly petitioner nos.3 and 4 were at one time Municipal Commissioner, BMC and Chief Secretary of State of Maharashtra. They have taken special efforts in studying several aspects of planning and public housing and have been in-charge of committees set up in that behalf.

5. Petitioner nos.5 and 6 are also eminent public spirited citizens inasmuch as petitioner no.5 is ex-Education Minister in the Government of Maharashtra, apart from being a very active Member of Maharashtra Legislative Assembly and Council. Petitioner no.6 is a Management Consultant and social activist.

6. Petitioners are senior citizens and have at one time or the other contributed to the growth and development of the City of Mumbai. It is their grievance that the respondents herein namely State, BMC, MHADA, NTC and other respondents are depriving the residents of Mumbai and specifically those belonging to lower middle class and poorer sections, of valuable amenities, open areas and housing accommodation.

7. The grievance centres around the lands belonging to Cotton Textile Mills in Central Mumbai (known as 'Girangaon'). The lands belonging to these Mills are at a prime and central location. Cotton Textile Mill was once a flourishing business. It appears that the Cotton Textile industry suffered on account of several acts of omissions and commissions on the part of authorities as well as owners. NTC had to step in as a result of these acts since the mills faced closure and/or became sick. NTC tried revival of some of these mills by taking them over under Nationalised Act and related statutes. However, considering the over all market condition it was not possible for NTC to revive them completely and fully. The Textile Strike of 1982 worsened the situation further. The mills suffered serious set back on account of aforesaid reasons. Apprehending that closure of textile business would enable the Mill owners to trade in Real Estate, a provision was made to regulate and control the development and redevelopment of lands belonging to Cotton Textile Mills by introducing Regulation 58 in the D. C. Rules.

8. The first attempt was made in 1991. D. C. Rules are framed for the purposes of controlling and regulating land use and development in the City of Mumbai. Various regulatory provisions are made therein with a view to check construction of buildings and structures thereby hampering development as a whole and taking away valuable open spaces and public amenities. The provisions in the D. C. Rules pertaining to other lands are insufficient and inadequate to deal with the lands belonging to Cotton Textile Mills and, therefore, special provisions were introduced. Even otherwise, lands belonging to these Mills are a class by themselves. After introduction of special provisions it was noticed that the intent and purpose of regulated development as also revival and rehabilitation of the industry, is not being achieved. In these circumstances, amendments were made to D. C. Regulation 58 in 2001.

9. It is common ground that MRTP Act is an Act providing for development and redevelopment of towns and cities by preparing development plans and implementing them through schemes framed by the Authorities set up and established thereunder. The BMC being local authority, is designated as Planning Authority for the purpose of this statute. The concept of development plan emanates from this statute and it's contents are set out in Section 22. Section 22 of MRTP Act reads as under:-

"22. CONTENTS OF DEVELOPMENT PLAN :- A Development plan shall generally indicate the manner in which the use of land in the area of the Planning Authority shall be regulated, and also indicate the manner in which the development of land therein shall be carried out. In particular, it shall provide so far as may be necessary for all or any of the following matters, that is to say:-

(a) Proposals for allocating the use of land for purposes, such as residential, industrial, commercial, agricultural, recreational;

(b) proposals for designation of land for public purposes, such as school, colleges and other educational institutions, medical and public health institutions, markets, social welfare and cultural institutions, theaters and places for public entertainment, or public assembly, museums, art galleries, religious buildings and government and other public buildings as may from time to time be approved by the State Government;

(c) proposals for designations of areas for open spaces, play grounds, standia, zoological gardens, green belts, nature reserves sanctuaries and dairies;

(d) transports and communications, such as roads, high-ways, parkways, railways, water-ways, canals and airports, including their extension and development;

(e) water supply, drainage, sewerage, sewage disposal, other public utilities, amenities and services including electricity and gas;

(f) reservation of land for community facilities and services;

(g) proposals for designation of sites for service industries, industrial estates and any other development on an extensive scale;

(h) preservation, conservation and development of areas of natural scenery and landscape;

(i) preservation of features, structures or places of historical, natural, architectural and scientific interest and educational value (and of heritage buildings and heritage precincts);

(j) proposals for flood control and prevention of river pollution;

(k) proposals of the Central Government, a State Government, Planning Authority or public utility undertaking or any other authority established by law for designation of land as subject to acquisition for public propose or as specified in a Development plan, having regard to the provisions of section 14 or for development or for securing use of the land in the manner provided by or under this Act;

(l) the filling up or reclamation of low lying, swampy or unhealthy areas or levelling up of land;

(m) provisions for permission to be granted for controlling and regulating the use and development of land within the jurisdiction of a local authority including imposition of conditions and restrictions in regard to the open space to be maintained about buildings, the percentage of building area for a plot, the location, number, size, height, number of storyes and the character of buildings and density of population allowed in a specified area, the use and purposes to which buildings or specified areas of land may or may not be appropriated, the sub-division of plots, the discontinuance of objectionable users of land in any area in reasonable periods, parking space and loading and unloading space for any building and the sizes of prejections and advertisement signs and boardings and other matters as may be considered to be necessary for carrying out the objects of this Act."

10. The provisions of this statute contemplate making of Draft Development Plan and after incorporating suggestions and views of the planning authority it's ultimate sanction by the State Government. A sanctioned development plan remains in force until it is revised according to the statute. The statute contemplates 20 years life of a development plan after which a revision has to be undertaken by the authorities. A final sanctioned development plan is capable of being varied and modified in certain circumstances. The provisions pertaining to them are contained in the very Chapter which provides for making of a development plan. The contents of development plan include regulations and restrictions for land use and development and that is how the D.C. Rules are made and thus form part and parcel of the development plan.

11. Section 22-A speaks of substantial modification to a draft plan whereas Section 37 provides for modifications to a final development plan. Both these provisions are reproduced hereinbelow:-

"22-A - MODIFICATIONS OF A SUBSTANTIAL NATURE:- In section 29 or 31, the expression "of a substantial nature" used in relation to the modifications made by the Planning Authority or the officer appointed by the State Government under sub-section (4) of section 21 (hereinafter referred to as "the said Officer") or the State Government, as the case may be, in the draft Development Plan means:-

(a) reduction of more than fifty per cent, or increase by ten per cent in area of reservation provided for in clauses (b) to (i) of section 22, in each planning unit or sector of a draft Development Plan, in sites admeasuring more than 0.4 hectare in the Municipal Corporation area and "A" Class Municipal area and 1.00 hectare "B" Class and "C" Class Municipal areas;

(b) all changes which result in the aggregate to a reduction of any public amenity by more than ten per cent of the area provided in the planning unit or sector in a draft Development Plan prepared and published under section 26 or published with modifications under section 29 or 31, as the case may be;

(c) reduction in an area of an actually existing site reversed for a public amenity except for marginal area upto two hundred square meters required for essential public amenity or utility services;

(d) change in the proposal of allocating the use of certain lands from one zone to any other zone provided by clause (a) of section 22 which results in increasing the area in that other zone by ten per cent in the same planning unit or sector in a draft Development Plan prepared and published under section 26 or published with modifications under sections 29 or 21, as the case may be;

(e) any new reservation made in a draft Development Plan which is not earlier published under section 26, 29 or 31, as the case may be;

(f) altercations in the Floor Space Index beyond ten per cent, of the Floor Space Index prescribed in the Development Control Regulations prepared and published under section 26 or published with modifications under section 29 or 31, as the case may be."

"37. 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 sixty 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.

[(1-A) 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-section (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 Plan 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."

[(1-B) Notwithstanding anything contained in sub-clause (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 (with amendments, if any), to the State Government to sanction.]

(2) The 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 plan shall be deemed to have been modified accordingly."

12. The case of the petitioners is that Regulation 58 of 1991 (unamended provision) provided that if the Cotton Textile Mill owners are desirous of developing the lands, then they were required to surrender one third portion to BMC for public spaces/public amenities, one third to MHADA for public housing and one third portion was available for development by the mill owner. According to them, the basic purpose being revival and rehabilitation as well as modernisation of Cotton Textile Mills pursuant to schemes framed in that behalf, the said Regulation provided incentives to Mill Owners to fulfil the same. Regulation 38 falling under Development Control Regulations being part and parcel of the Development Plan sanctioned by the State, according to the petitioners, any amendment thereto can be made only if permissible in law and without violating the constitutional mandate referred to above. In other words, the development plan incorporating such regulations having attained finality, the only mode provided for modification therein was by resorting to provisions contained in that behalf.

13. According to the petitioners, the aforesaid situation continued until Parliament enacted 73rd and 74th Constitutional Amendment. By constitutional amendments, Part IX-A has been introduced in the Constitution of India. Part IX-A deals with Municipalities. According to the petitioners, this constitutional amendment envisages conferring more powers on the Municipalities so as to make them effective and complete institutions of local government. The 74th Amendment requires the State Government enacting a law for constitution of Metropolitan Planning Committee for preparing development plans for metropolitan region. This is necessitated because by virtue of the powers conferred vide Article 243-W appearing in part IX-A Economic and Social Planning as also comprehensive development, is the responsibility of the Municipalities. In this context, reliance being placed on Article 243-W and 243-ZE, the same are required to be reproduced hereinbelow:-

"ARTICLE 243-W:- POWERS, AUTHORITY AND RESPONSIBILITIES OF MUNICIPALITIES ETC.

Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow -

(a) the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to -

(i) the preparation of plans for economic development and social justice;

(ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelth Schedule;

(b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelth Schedule."

"ARTICLE 243-ZE:- COMMITTEE FOR METROPOLITAN PLANNING:-

(1) There shall be constituted in every Metropolitan area a Metropolitan Planning Committee to prepare a draft development plan for the Metropolitan area ..... a whole.

(2) The Legislature of a State may, by law, make with respect to -

(a) the composition of the Metropolitan Planning Committees;

(b) the manner in which the seats in such Committees shall be filled;

Provided that not less than two-third of the members of such Committe shall be elected by, and from amongst, the elected members of the Municipalities and Chairpersons of the Panchayats in the Metropolitan area in proportion to the ratio between the population of the Municipalities and of the Panchayats in that area;

(c) the representation, in such Committees of the Government of India and the Government of the State and of such organisations and institutions as may be deemed necessary for carrying out the functions assigned to such Committees;

(d) the functions relating to planning and co-ordination for the Metropolitan area which may be assigned to such Committees;

(e) the manner in which the Chairpersons of such Committees shall be chosen.

(3) Every Metropolitan Planning Committee shall, in preparing the draft development plan,-

(a) have regard to -

(i) the plans prepared by the Municipalities and the Panchayats in the Metropolitan area;

(ii) matters of common interest between the Municipalities and the Panchayats, including co-ordinated spatial planning of the area, sharing of water and other physical and natural resources, the integrated development of infrastructure and environmental conservation;

(iii) the overall objectives and priorities set by the Government of India and the Government of the State;

(iv) the extent and nature of investments likely to be made in the Metropolitan area by agencies of the Government of India and of the Government of the State and other available resources whether financial or otherwise;

(b) consult such institutions and organisations as the Governor may, by order, specify.

(4) The Chairperson of every Metropolitan Planning Committee shall forward the development plan, as recommended by such Committee, to the Government of the State."

14. In the light of the abovementioned statutory as well as constitutional provisions, the question posed for determination is whether Section 37(1AA) of MRTP Act is ultra vires Part IX-A of the Constitution and more particularly Article 243-W.

15. For the reasons indicated hereinbelow, it is not necessary to decide this question.

16. The contention of Mr. Kalsekar - learned counsel for the petitioners is that while amending the D. C. Rules of 1991, the Government has issued a notification inter-alia, directing the BMC to modify Regulation 58 by following the procedure laid down under section 37 of the MRTP Act. It is his case that while issuing such directions the Government has taken recourse to the amended sub-section (1AA) of Section 37 of MRTP Act. In his submission, the amended sub-section, therefore, is clearly empowering the Government to interfere with the working of local government, namely BMC. As the interference by the Government is contrary to the constitutional mandate referred to above and is otherwise arbitrary and unreasonable, therefore, the provision empowering the Government to do so, must be struck down as unconstitutional and void.

17. Since the petition involves constitutional validity of a State Legislation, notice was issued to the Advocate General for the State of Maharashtra. Learned Advocate General has appeared before us.

18. Mr. Kadam - learned Advocate General has invited our attention to the affidavit which is filed on behalf of the State Government in this petition. He submits that the contentions of Mr. Kalsekar proceed upon a total misconception inasmuch as the State Government had taken recourse to Section 37 of the MRTP Act, 1966 only to expedite the procedural requirements contemplated thereunder. In other words, the argument proceeds upon a misreading of the Notification dated 20th March, 2001 by which Regulation 58 has been amended. Inviting our attention to the notification, Mr. Kadam submits that the State Government has taken a decision under section 37(1) of MRTP Act, 1966. He submits that power flows from that provision. It is only when a direction issued under that provision is not carried out or implemented, that the State Government can take recourse to Section 37(1AA) of the MRTP Act. He submits that the petitioners proceed on the footing that Section 37(1AA) is the sole repository of the power to issue directions to the Municipalities. He submits that if Section 37 is read as a whole together with other provisions of MRTP Act and more particularly Sections 31 and 154 thereof, then, it is clear that in a planning statute, the State Government has been conferred with superior and higher powers. This is not a case of any interference with the administration of Municipalities. It is not proper to urge that in all cases proposals for modifications must emanate from the Municipalities and that the State Government has no power at all in that regard. He submits that powers such as those conferred by Section 37 and more particularly Section 37(1AA) are exercised for meeting emergent needs and purposes. They are exceptional and not to be exercised as a matter of course.

19. In any event, Mr. Kadam submits that there is no question of Section 37(1AA) being unconstitutional of part IX-A inasmuch as part IX-A of the Constitution of India provides for establishment of Municipalities. It deals with their functions and duties. It does not conflict or collide with statutes like MRTP Act. He submits that constituting Municipalities, conferring powers and enlisting their functions and duties, is what is contemplated by the Constitutional provisions, whereas, MRTP Act does not deal with any of these aspects. Two statutes operate in separate areas and fields. Therefore, a provision like Section 37 in planning statute can never over-ride the constitutional provisions.

20. That apart, he submits that the State is duty bond to implement the constitutional mandate. The State has enacted a statute for metropolitan planning in terms of the constitutional mandate and in that behalf he invites our attention to the Maharashtra Metropolitan Planning Committees (Constitution and Functions) (Continuance of Provisions) Act, 1999. He submits that the Metropolitan Planning Committees formed under this statute have to be broad based and should consist of representatives from all sections of the society. He submits that the Committee consists of elected members also. He submits that for the purposes of holding elections, rules will have to be framed and such rules have indeed been framed by the State Government. They have been laid before the Legislative Assembly and upon the same being approved, immediate steps would be taken to complete the election process. He submits that the State desires completion of the process namely framing of rules, laying them before the House, seeking approval thereof and also holding elections, as expeditiously as possible. In any event, he submits that by April, 2006 the State Government would be able to complete the elections. He submits that even in the Metropolitan Planning Committees Act power has been conferred on the State Government to issue directions. He submits that neither the Maharashtra Metropolitan Committes Act, 1999 nor the other provisions contained in the planning statute conferring wide powers on the State Government, have been challenged in this petition. Therefore, it would not be proper to decide the wider question. In any event, he submits that the Maharashtra Municipalities Act, Maharashtra Zilla Parishads and Panchayat Samittees Act, The Bombay Provincial Municipal Corporation Act and the Mumbai Municipal Corporation Act have all been amended in tune with this constitutional mandate. He submits that planning statute is not a law relating to Municipalities and therefore, it is not necessary to either amend or delete provisions such as Section 37 of the MRTP Act. For all these reasons, he submits that the constitutional challenge must fail.

21. There is much substance in the contentions of learned Advocate General about absence of pleading and particulars with regard to the constitutional challenge. A perusal of the relevant provisions of the MRTP Act as also Maharashtra Metropolitan Planning Committees Act leaves us in no manner of doubt that if contentions of Mr. Kalsekar have to be examined and the wider constitutional challenge adjudicated upon, then merely challenge to Section 37(1AA) of the MRTP Act would not be enough. The petitioners will have to lay a proper foundation in the pleadings as to how merely challenging this provision would suffice when power to issue directions is also conferred by other provisions of MRTP Act and the Planning Committes Act. Municipal Administration is not without control and supervision of the State Government. The State Government in the scheme of Municipal Laws as well, has been conferred with power to issue directions and exercise control over Municipalities/Municipal Corporations. Therefore, it is not as if elected bodies at local level are not subject to any supervision and control of the State Government.

22. It is not necessary to go into this aspect any further because in the absence of a comprehensive challenge of the nature aforestated, it is not possible to arrive at any conclusion as to whether power conferred on the State Government to issue directions under a planning law would violate the mandate of part IX-A of the Constitution and Article 243-W in particular. It is well settled that there is a presumption about the constitutionality of an enactment, and the burden is upon the person who challenges it. The question about the validity cannot be decided lightly and without proper foundation or pleadings. We leave the challenge to Section 37(1AA) and other provisions open for decision in an appropriate case.

23. We have no hesitation in accepting the statement of the learned Advocate General. Now, that the State is fully aware of it's constitutional obligation and the need to empower Municipalities so as to enable them to effectively and properly carry out their duties in as per the XIIth Schedule, we have no doubt that all necessary steps and measures in that behalf would be taken expeditiously.

24. There is one more reason why we should refrain from deciding the wider question as enumerated above. From a perusal of the Notification dated 20th March, 2001 amending Regulation 58 it is clear that the direction to do so was issued under section 37(1) of the MRTP Act. Section 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. It is the expediency of the matter and interest of the public which prompted the Government to issue a public notice on it's own. However, the fact remains that the power to issue directions conferred by Section 37(1) was exercised in the present case. That is clear from a reading of clause (1) of the order/notification dated 20th March, 2001. In these circumstances, the issue as to whether the Government has taken recourse to the amended provisions of Section 37 need not be gone into and no final decision need be rendered on the legality and validity of the said provisions.

25. As far as challenge to the amendment to D. C. Regulation 58 made in 2001 is concerned, Mr. Kalsekar has more or less adopted the submissions of the petitioners in Writ Petition No.482 of 2005. Additionally, he has contended that while amending and/or modifying the regulations, the Government could not have taken recourse to Section 37 because amending D. C. Regulation 58, which is part and parcel of the Development Plan, means changing the character of the plan itself. Therefore, such a modification and/or amendment is impermissible in law. He submits that keeping open spaces and making provisions for public amenities and public housing are prominent and distinct features of the development plan. Ultimately, the word "Character" appearing in Section 37(1) means such distinct features and prominent aspects which are forming part of the development plan. They cannot undergo a change. They can be marginally altered or re-arranged when the plan is being revised. Therefore, according to him, the action is, per se, illegal. He has taken us through the other provision namely Sections 22(1)(a), clause (c) and Section 22(A) in this behalf. He submits that the areas carved out for amenities and public housing now undergo a drastic change and are reduced considerably. Therefore, this is nothing but altering the basic character of the plan. This is not a minor modification but a substantial modification and that too changing the character of the plan itself. He has relied upon several decisions rendered by the Supreme Court and this Court.

26. In our view, these aspects are also covered by the Public Interest Litigation/Writ Petition No.482 of 2005. They have been elaborately considered by us in our judgment rendered in that writ petition. The judgment and order passed in that petition would govern the issue of legality and validity of the amended D. C. Regulations as raised in the present petition also. We need not record separate reasons in that behalf in this petition.

27. In the result, the writ petition is disposed of by the following order:-

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

B) Development Control Regulation 58 as amended does not mean that there is no obligation to surrender the portions earmarked vide sub-clause (b) thereof in the proportion set out therein. The expression "open lands and balance FSI" shall mean land becoming open even upon demolition of existing structures and unutilised and unconsumed Floor Space Index (FSI).

C) In the light of this interpretation, the issue as to whether Development Control Regulation 58 as amended in 2001, is ultra vires Articles 14, 21 and 48-A of the Constitution of India and the underlying policy of Maharashtra Regional and Town Planning Act, 1966 need not be considered and decided.

D) The issue as to what is the ambit and scope of Section 37(1) of Maharashtra Regional and Town Planning Act, 1966 vis-a-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.

P.C. :-

After pronouncement of judgment, the learned counsel for National Textile Corporation and the learned counsel for all the Mill Owners apply for stay of this judgment and order. We do not find any ground to grant stay of this judgment and order, as all the constructions are in standstill position in view of the Stop Work Notices issued by the Mumbai Municipal Corporation and the Maharashtra Pollution Control Board. Hence, application for stay is rejected.

Issue of certified copy of the judgment and order is expedited.

Order accordingly.