2009(4) ALL MR 119
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

S.B. MHASE AND D.B. BHOSALE, JJ.

Brahma-Siddheshwar Co-Operative Housing Society Ltd. & Ors.Vs.State Of Maharashtra & Ors.

Writ Petition No.2529 of 2009

31st March, 2009

Petitioner Counsel: Mr. K. K. SINGHVI,Mr. A. K. JALISATGI,Rahul Oak
Respondent Counsel: Mr. VINAY MASURKAR,Mr. N. R. BUBNA

Maharashtra Regional and Town Planning Act (1966), S.37 - Modification of final development plan - Notice - All affected persons should be served with notices and they should be given an opportunity of hearing and thereafter the State Government shall take decision either to sanction or not to sanction the proposed modification.

State Government is expected to publish a notice in the official gazette as prescribed in the rules inviting objections and suggestions from the persons with respect to the proposed modification and, that too, providing a period of 30 days from the date of such notice. All affected persons should be served with notices and they should be given an opportunity of hearing and thereafter the State Government shall take decision either to sanction or not to sanction the proposed modification. Nothing has been produced on record by the respondent to demonstrate that the procedure as stated under section 37(1) has been followed while rejecting the proposal submitted by respondent nos.2 and 3 for modification under section 37(1) and, therefore, it is crystal clear that the petitioners-societies who are affected as a result of non-sanction of the modification in the final Development Plan, had no opportunity to persuade the respondents to accept the modification so that after converting the said land into a residential zone the petitioners can construct their houses in the said area. Similarly, since the land which was shown under the final Development Plan as lake, is suggested to be converted into a residential zone, there will be an environmental problem wherein all citizens in the vicinity of the said lake or the corporation area may be interested. This lake may operate as a source of oxygen window to the city and therefore every citizen in the Thane city may be interested and may be affected as a result of the sanction of the plan. But all this is required to be considered after giving an opportunity to the citizens of lodging objections and suggestions in respect of the proposed modification in the final Development plan including the petitioners. Since that has not been done, the order suffers from an illegality and, therefore, Court set aside the order dated 13.7.2007. [Para 5]

JUDGMENT

JUDGMENT:- Heard learned counsel for the parties.

1A. Rule returnable forthwith with consent of parties.

2. The petitioners have approached to this Court under Article 226 of the Constitution of India challenging a decision of the State Government dated 13.7.2007, rejecting a proposal submitted by respondent nos.2 and 3 under section 37 of the Maharashtra Regional and Town Planning Act, 1966, thereby, proposing a modification in the final Development Plan, more specifically of a piece of land bearing No.424-A, which has been shown in the final Development Plan as a lake.

3. The petitioners are the various societies, members of which have encroached upon the land marked as "lake" or "tank" bearing No.424-A, located within the Corporation area of Thane. It appears that the said lake is known as "Siddheshwar Talao or tank". The petitioners have encroached upon the land of the said lake and it appears that nearabout half of the portion has been encroached upon. The petitioners state that they are protected persons so far as that area is concerned and, therefore, they have formed a society so as to construct their houses at the same site and, therefore, the site, which was reserved for the tank, is being suggested to be converted into a residential zone and accordingly a proposal was made by respondent nos.2 and 3, which was submitted to the State Government. In turn, the State Government, by the above referred order, has rejected it. We need not go, at this stage, into the main merit of the case, namely, whether the modification suggested is of such nature that it will not change the character of the final Development Plan. At this stage, only grievance made by the learned counsel for the petitioners is that while rejecting the proposal, the procedure, as prescribed under sub-section (1) of Section 37 of the Maharashtra Regional and Town Planning Act, 1960, has not been followed by the State Government. The learned counsel for the petitioners submitted that section 37 contemplates for calling of objections and suggestions from any persons in respect of the proposed modification by issuing notice and providing a period of one month. According to him, it also contemplates that the persons who are affected by the proposed modification shall be served with notices and hearing opportunity should be given to them.

4. As against this, the learned Government Pleader, Mr. Masurkar, submitted that no such notice is contemplated, and hearing is contemplated under the law and, therefore rejection by the State Government is justified.

5. We find a substance in the contentions raised by the learned counsel for the petitioners. Section 37(1) reads thus:

"37(1) 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."

Therefore, on plain reading of the section it is contemplated that the State Government is expected to publish a notice in the official gazette as prescribed in the rules inviting objections and suggestions from the persons with respect to the proposed modification and, that too, providing a period of 30 days from the date of such notice. It further contemplates that all affected persons should be served with notices and they should be given an opportunity of hearing and thereafter the State Government shall take decision either to sanction or not to sanction the proposed modification. Nothing has been produced on record by the respondent to demonstrate that the procedure as stated under section 37(1) has been followed while rejecting the proposal submitted by respondent nos.2 and 3 for modification under section 37(1) and, therefore, it is crystal clear that the petitioners-societies who are affected as a result of non-sanction of the modification in the final Development Plan, had no opportunity to persuade the respondents to accept the modification so that after converting the said land into a residential zone the petitioners can construct their houses in the said area. Similarly, since the land which was shown under the final Development Plan as lake, is suggested to be converted into a residential zone, there will be an environmental problem wherein all citizens in the vicinity of the said lake or the corporation area may be interested. This lake may operate as a source of oxygen window to the city and therefore every citizen in the Thane city may be interested and may be affected as a result of the sanction of the plan. But all this is required to be considered after giving an opportunity to the citizens of lodging objections and suggestions in respect of the proposed modification in the final Development plan including the petitioners. Since that has not been done, the order suffers from an illegality and, therefore, we set aside the order dated 13.7.2007. The petition is allowed to the limited extent. The State Government is directed to follow the procedure as stated under section 37 and thereafter take a final decision in this respect.

All observations, which have occurred in the order, are only to show as to how the procedure, contemplated under section 37 of MRTP Act, had not been followed. There is no consideration by us on merit. The concerned authority shall follow the procedure and take appropriate decision without being influenced by the observations made in this order. It is also open to the concerned authority to reject the proposal on merits after following the due procedure.

The petition is accordingly disposed of. Rule absolute as stated above.

Petition allowed.