A.S Oka, J.:— The Petitioner claims to be the owner of the property bearing CTS No. 2814.C/1 in “B” Ward, Kolhapur, admeasuring about 38,268.40 sq. metres which is popularly known as “Jayprabha Studio”. It is pointed out that an area admeasuring 21,889 sq. metres was declared as surplus area under the Urban Land (Ceiling and Regulation) Act, 1976 (for short “ULC Act”). Out of the said surplus area, an order of exemption was granted under section 20 of the ulc act in relation to the area of 18,036.97 sq. metres as disclosed in Paragraph (1) of the Petition. Thereafter, an area of 3376.80 sq. metres, out of the CTS No. 2814.C/1, was designated as “Jayprabha Studio”.
2. According to the case of the Petitioner, the Development Control Regulations for the city of Kolhapur were sanctioned vide Notification dated 15th November 1999 in accordance with Section 31 of the Maharashtra Regional and Town Planning Act, 1966 (for short “the MRTP Act”). The said Development Control Regulations (for short “DCR”) came into force with effect from 18 December 1999. On 30 September 2000, the State Government issued a direction to the third Respondent - Municipal Corporation of City of Kolhapur (for short “the said Corporation”) to initiate proceedings under Sub-Section (1) of 37 of the MRTP Act for the modification of the DCR for incorporating the the Heritage Buildings/Precincts/Natural Features and a list of Heritage Buildings/Precincts/Natural Features. On the basis of the said directions, a resolution was passed by the General Body of the said Corporation on 30 June 2003 proposing the modifications of the DCR as directed by the Government. It was resolved to initiate a modification proposal in accordance with Sub-Section (1) of Section 37 of the MRTP Act. Accordingly, a notice dated 10 September 2003 in accordance with Sub-Section (1) of Section 37 of the MRTP Act was published in the Government Gazette dated 25 September 2003 by the said Corporation. By the said notice, the proposed modifications to the DCR for incorporating the provisions of the Regulations for the conservation of the Heritage Buildings/Precincts/Natural Features and the list of the said Heritage Buildings/Precincts/Natural Features were notified and objections and/or suggestions were invited to the proposed modifications. As per the proposed modifications, the said property (Jayprabha Studio) was included in the list of Heritage Buildings/Precincts/Natural Features (Grade-III).
3. In the Petition, it is pointed out that a Resolution was passed by the General Body of the said Corporation on 18 December 2006 by which it was resolved to reserve a part of the property of the Petitioner for the purposes of garden and cultural center. By an order Regulations for conservation of dated 18 May 2007, in exercise of powers under the provisions of Section 451 of the Maharashtra Municipal Corporation Act, 1949 (for short “the Municipal Corporation Act”), the said resolution was rescinded by the State Government. As stated earlier, an order of exemption under Sub-Section (1) of Section 20 of the ULC Act in respect of an area of 18,036.97 sq. metres was passed on 9 July 2007 by the Deputy Collector and Competent Authority under the ULC Act, Kolhapur. Under the said order, a housing scheme on the area of 14,660.17 sq. metres was approved subject to the terms and conditions incorporated therein. The said order recorded that an area of 3376.80 sq. metres was designated for Jayprabha Studio.
4. An order dated 8 November 2010 was issued by the State Government in exercise of the powers under Sub-section (1) of Section 162 of the MRTP Act. In the said order, it was observed that a direction was issued under Sub-Section (1) of Section 31 of the MRTP Act to the said Corporation to initiate proceedings for the modification of the DCR on the basis of which a notice dated 10 September 2003 under Sub-Section (1) of Section 37 of the MRTP Act was published in the Government Gazette on 23rd September 2003 by the said Corporation. It was observed in the said order that as the said Corporation failed to carry out the modifications as proposed, it was necessary to exercise the powers under Sub-section (1) of Section 162 of the MRTP Act. Therefore, by the said order, the State Government appointed the Deputy Director of Town Planning, Pune Division, Pune, to be an officer for performing the duties of the said Corporation to complete the remaining legal procedure required under section 37 of the mrtp act and to submit a proposal to the State Government for sanction. Accordingly, the said officer appointed under the said order submitted a proposal to the State Government for the modification of the DCR for incorporating the provisions of the Regulations for the conservation of the Heritage Buildings/Precincts/Natural Features and a list of Heritage Buildings/Precincts/Natural Features to the State Government for its sanction. The said proposal was submitted on 1st February 2011. By the order/notification dated 29 February 2012 (the impugned notification/order), the State Government sanctioned the proposed modifications to the DCR. The Jayprabha Studio was included in the list of Heritage Structure (Grade-III) in the list approved by the State Government which was made a part of the DCR.
5. In this Petition under Article 226 of the Constitution of India, the challenge is to the impugned Order/Notification dated 29 February 2012 of the State Government. By amending the Petition as per the order dated 12 December 2014, a challenge was also incorporated to the Government Resolution/Order dated 8 November 2010 by which an officer (the Deputy Director of Town Planning, Pune Division, Pune - the second Respondent) was appointed under Sub-section (1) of Section 162 of the MRTP Act.
6. There is an affidavit-in-reply filed by the second Respondent which is affirmed on 28 February 2015. It is contended in the said affidavit that as there was a negligence and failure on the part of the said Corporation to perform its duties in terms of the directions issued by the State Government on 14 June 2001 to complete the procedure in relation to Sub-Section (1) of Section 37 of the MRTP Act of the modifications of the DCR, by exercising the powers under Sub-section (1) of Section 162 of the MRTP Act, he was appointed to perform the duties and functions of the said Corporation. There is an additional affidavit filed by the same officer which is affirmed by him on 11 September 2015. In the said additional affidavit, it was pointed out that the notice dated 10 September 2003 issued by the said Corporation was published in the Government Gazette dated 25 September 2003 and in the daily newspapers “Dainik Sakal” and “Dainik Pudhari” on 11 September 2003. Reliance is placed on the letter dated 2nd June 2008 addressed by the said Corporation to the Additional Secretary of the Urban Development Department of the State Government. It was stated in the said letter that on the basis of the notice dated 23 September 2003, the action of giving hearing to those who have submitted their objections and suggestions has been completed and necessary proposal has been submitted to the General Body of the said Corporation. It was pointed out that after the approval of the General Body of the said Corporation, the proposal will be submitted to the State Government for approval. It is further stated that as an officer appointed under Sub-section (1) of Section 162 of the MRTP Act, he performed the remaining part of the duties of the Corporation by taking a decision on the objections and suggestions and submitted the proposal to the State Government.
7. There is a reply filed by Shri Ramesh Krishnakant Maskar, the Deputy City Planner of the said Corporation. It is pointed out that it is not correct to state that an area of only 3376.80 sq.meters held by the Petitioner was included in the list of Heritage Sites and in fact total area of 1.40 Hectares has been included. It is pointed out that on the basis of the notice published in the Government Gazette on 25 September 2003 and the notice published in the daily newspapers “Dainik Sakal” and “Dainik Pudhari” on 11 September 2003, several persons have submitted their objections and suggestions. He has relied upon the notice dated 10 July 2010 issued to the Manager of Jayprabha Studio by the said Corporation in which it is stated that the said property has been classified as “Heritage Grade-III”. It is further pointed out that in the reply dated 13 July 2010 issued by the Manager of Jayprabha Studio to the said notice dated 10 July 2010, it is accepted that the said property has been classified as “Heritage Grade-III”. It is contended in the reply that the Petitioner was aware of the the notice dated 10 September 2003 issued under Sub-Section (1) of Section 37 of the MRTP Act at least from 11 September 2003. It is pointed out that the Petitioner did not raise any objection to the said notice.
8. There is a rejoinder filed by the Petitioner herself after the original file was produced by the State Government in relation to the order issued under Sub-section (1) of Section 162 of the MRTP Act. It is pointed out that there is no opinion recorded either in the order or in the file that there was any neglect or failure on the part of the said Corporation in performing its duties. It is contended that the reasons cannot be subsequently supplied by filing affidavits. It is contended that the Petitioner was not heard. Reliance was placed on various decisions in the said affidavit.
SUBMISSIONS OF THE PETITIONER
9. The learned counsel appearing for the Petitioner has made detailed submissions. He has also filed written submissions. He urged that if the State Government was of the view that the Municipal Corporation was not taking any steps to amend the DCR, the State Government could have exercised the powers under Sub-Section 1AA of Section 37 of the MRTP Act. He invited our attention to section 162 of the mrtp act and urged that unless there is a formation of an opinion by the State Government that the Planning Authority has neglected or failed to perform its duty imposed by the provisions of the MRTP Act or has neglected or failed to exercise any of its powers conferred under the MRTP Act, the powers under Sub-section (1) of Section 162 of the MRTP Act cannot be invoked. He urged that firstly a direction ought to have been issued under Sub-Section (1) of Section 154 of the MRTP Act to the Planning Authority to perform its duty and only if there was a failure on the part of the Planning Authority to perform its duty that the order under Sub-section (1) of Section 162 of the MRTP Act could have been passed. He submitted that the said Corporation ought to have been called upon to furnish a report/return under Sub-section (1) of Section 155 of the MRTP Act before exercising the powers under Sub-section (1) of Section 162 of the MRTP Act. He urged that in any case, the powers under Sub-section (1) of Section 162 of the MRTP Act has been exercised after a lapse of seven years from 25 September 2003 when a notice under Sub-Section (1) of Section 37 of the MRTP Act was published in the Government Gazette.
10. The further submission of the learned counsel appearing for the Petitioner is that even assuming that the powers under Sub-section (1) of Section 162 of the MRTP Act have been validly exercised, the officer nominated could have been authorized only to publish a notice and invite objections and suggestions. He urged that the power of giving hearing in terms of Sub-Section (1) of Section 37 of the MRTP Act could not have been delegated to the officer appointed under Sub-section (1) of Section 162 of the MRTP Act. He urged that after giving notice to the persons who are likely to be affected by the said modifications, hearing ought to have been conducted by the said Corporation being the Planning Authority. He also invited our attention to the provisions of Sub-Section (2) of Section 28 of the MRTP Act and urged that the the procedure prescribed by Sub-Section (2) of Section 28 will have to be read as incorporated in section 37 of the mrtp act by necessary implication. He urged that if the said Corporation is bypassed in the process of the modification to the DCR, the same would clearly violate the mandate of Sub-clause (i) of Clause (a) of Article 243W of the Constitution of India. He urged that a personal notice as required by Sub-Section (1) of Section 37 of the MRTP Act has not been served to the Petitioner. He urged that in any event, the change effected by the impugned notification in the DCR results into a change in the character of the Development Plan and, therefore, such a modification is not covered by section 37 of the mrtp act. He urged that such amendment can be made only by taking recourse to section 38 of the mrtp act.
11. The learned AGP urged that even going by the affidavit-in-reply filed by the said Corporation, the neglect and failure on the part of the said Corporation in performing its duty under section 37 of the mrtp act becomes virtually an admitted position. The learned AGP urged that once the power is exercised under Sub-section (1) of Section 162 of the MRTP Act, the officer appointed in exercise of the said powers can perform all the duties of the Planning Authority and can exercise all the powers of the Planning Authority.
12. The learned counsel representing the said Corporation urged that the Petitioner always had a knowledge about the notification published in the Government Gazette dated 25 September 2003. He pointed out that the notices inviting objections to the proposed modifications were published in the daily newspapers “Sakal” and “Pudhari” on 11 September 2003 which are having a very wide circulation in Kolhapur and different parts of Maharashtra. He pointed out the contents of the reply dated 13 July 2010 sent by the Manager of Jayprabha Studio to the said Corporation in which it is clearly stated that the said property was categorized as “Heritage Grade-III”. He urged that the Petitioner could have always raised objections to the proposed modifications of the DCR and admittedly no such objections are raised.
13. The learned counsel appearing for the Petitioner relied upon decisions of the Apex Court in the case of Commissioner of Police, Bombay v. Gordhandas Bhanji AIR 1952 SC 16, Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi 1978 1 SCC 405, State of Punjab v. Sanjeet Singh Grewal 2007 6 SCC 292, Raja Anand Brahma Shah v. State of Uttar Pradesh AIR 1967 SC 1081, Maneklal Chhotalal v. M.G Makwana AIR 1967 SC 1373, K.L Gupte v. Municipal Corporation of Greater Bombay AIR 1968 SC 303, Mohan Singh v. International Airport Authority of India 1997 9 SCC 132, Govindlal Chhaganlal Patel v. The Agricultural Produce Market Committee, Godhra 1975 2 SCC 482 and Falcon Tyres Ltd. v. State of Karnataka 2006 6 SCC 530. He also relied upon a decision of this Court in the case of Brahma-Siddheshwar Co-operative Housing Society Ltd. v. State of Maharashtra 2009 4 Mh.L.J 62. The learned counsel appearing for the said Corporation relied upon a decision of the Apex Court in the case of Pepsu Road Transport Corporation, Patiala v. Mangal Singh 2011 11 SCC 702.
14. We have given careful consideration to the submissions. Firstly, it will be necessary to consider the scope of section 37 of the mrtp act. section 37 of the mrtp act as it existed on the date on which the impugned notice dated 10 September 2003 reads thus:
“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 2[shall, within ninety days from the date of such direction, publish a notice] in the Official Gazette 3[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.
4[(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.]
5(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 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.] 6[(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 (with amendments, if any), to the State Government to sanction.].
(2) The State Government may, 7[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 8[* * *] 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.”
15. Under the MRTP Act, in Chapter III, there are elaborate provisions made dealing with the preparation, submission and sanction of a Development Plan. The said provisions are found in sections 21 to 31 of the mrtp act. section 31 provides for grant of sanction to a Draft Development Plan prepared by the Planning Authority. On plain reading of Sub-Section (1) of Section 37, there is a power vesting in the Planning Authority to initiate modification of any part of a Final sanctioned Development Plan provided the modification is of such a nature that it will not change the character of such Development Plan. In a case where the Planning Authority desires to make such modification, the Planning Authority has to 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 and not later than one month from the date of publication of such notice. Sub-Section (1) of Section 37 further provides that the Planning Authority shall also serve notices to all the persons affected by such modification. It is further provided that after giving a hearing to any such persons, the Planning Authority has to submit the proposed modification with amendments, if any, to the State Government for sanction. Sub-Section (1) also makes it clear that there is a power vesting in the State Government to issue a direction to the Planning Authority to initiate a proposal for modification of the sanctioned Development Plan. If such a direction is issued, the Planning Authority has no option and it is obligatory for the Planning Authority to publish a notice as contemplated by Sub-Section (1) of Section 37 of the MRTP Act within a period of 90 days from the date on which such a direction is issued by the State Government. Sub-Section (1A) provides that if the Planning Authority fails to issue the notice as directed by the State Government within the stipulated period of 90 days, the State Government is empowered to publish a notice as contemplated by Sub-Section (1) of Section 37 of the MRTP Act. It provides that once such a notice is published by the State Government, for all purposes, it is a notice published by the Planning Authority in accordance with Sub-Section (1) of Section 37 of the MRTP Act. On the basis of such notice, the Planning Authority is required to follow further steps as provided in Sub-Section (1) of Section 37 of the MRTP Act. Sub-Section (1AA) of Section 37 confers independent power on the State Government to modify a sanctioned Development Plan. The said power can be exercised in a case where the State Government is satisfied that in public interest, it is necessary to carry out urgently a modification of final Development Plan of such a nature that it will not change the character of the Development Plan. When such satisfaction is recorded, the State Government is entitled on its own to publish a notice in the Official Gazette inviting objections and suggestions to the proposed modification which can be submitted within a period of one month from the date of the notice. It is provided that the State Government shall serve notices on all the persons affected by the proposed modification as well as on the Planning Authority. The suggestions and objections received by the State Government are required to be forwarded to the Planning Authority for its consideration. Within one month from the date of receipt of the copies of the objections and suggestions to the proposed modification, the Planning Authority is required to submit its say to the State Government. Thereafter, the State Government is required to give hearing to the affected persons as well as to the Planning Authority and after making an inquiry, the State Government is empowered to publish by a notification in the Official Gazette the approved modification with or without any changes. In a case where Sub-Section (1) and Sub-Section (1A) of Section 37 of the MRTP Act are applicable, in exercise of the power conferred by Sub-Section (2) of Section 37, after considering the proposed modification submitted by the Planning Authority and after making such inquiry as may be necessary and after consulting the Director of Town Planning, the State Government may sanction the modification with or without any changes or may refuse to accord sanction to the proposed modification. In case the proposed modification is sanctioned with or without any changes, the same is required to be published in the Official Gazette and on its publication, the Development Plan shall be deemed to have been modified accordingly.
16. A submission was canvassed by the learned counsel appearing for the Petitioner that the provisions of Sub-Section (2) of Section 28 of the MRTP Act will have to be read into Section 37 thereof. Section 28 of the MRTP Act reads thus:
“28. Objections to draft Development plan:- (1) Subject to the provisions of this Act, if within the time allowed under Sub-Section (1) of Section 26 any person communicates in writing to the Planning Authority or the said officer any suggestions or objection relating to the draft Development plan, the Planning Authority or the said officer may, after considering the report of the Planning Committee under Sub-Section (2) and the suggestions or objections received by it or him, modify or change the plan in such manner as it or he thinks fit.
(2) The Planning Authority or the said Officer shall forward all objections and suggestions received by it to a Planning Committee 1[consisting of three members of the Standing Committee of the Planning Authority and such additional number of persons, not exceeding four, appointed by the State Government having special knowledge or practical experience of matters relating to town and country planning or environment or relating to both] for consideration and report:
Provided that, where a Planning Authority is not a local authority, the Planning Committee shall consist of such members as the Planning Authority 2[* * *] may determine:
3[Provided further that, where any officer appointed under Sub-Section (4) of Section 21 exercises the powers and performs the duties of a Planning Authority, then the Planning Committee may consist of the officer so appointed:]
4[5[Provided also that], where the State Government or any person or persons appointed under Section 162, exercise the powers and perform the duties of a Planning Authority or Development Authority, then the Planning Committee may consist of the State Government or the person so appointed:] 6[Provided also that, the Planning Committee contemplated in the preceding provisos shall also consist of such additional number of persons, not exceeding four, appointed by the State Government having special knowledge or practical experience of matters relating to town and country planning or environment or relating to both].
(3) The Planning Committee, 7[***] shall on receipt of objections and suggestions, make such inquiry as it 8[***j may consider necessary, and give a reasonable opportunity of being heard to any person including representatives of Government departments who may have filed any objections or made any suggestions in respect of the draft Development plan, and after considering the same, the Planning Committee shall submit its report to the Planning Authority or as the case may be, the said Officer not later than two months from the date of its appointment, or such further time as may for adequate reasons be fixed by the Planning Authority or the said Officer in this behalf.
(4) Not later than three months, after the receipt of the report of the Planning Committee, the Planning Authority or the said Officer shall consider the report including the objections and suggestions received by it or him and make such modifications or changes in the draft Development plan, as it or he may consider proper.
9[The draft Development Plan so modified shall be published in the Official Gazette and in such other manner as may be prescribed, not less than one month prior to the submission of the same to the State government for sanction.]”
17. The submission is that the objections and suggestions submitted in accordance with Sub-Section (1) of Section 37 are required to be considered by the Planning Committee constituted under the provisions of the MRTP Act. The Planning Committee is required to give an opportunity of being heard to the persons who have filed objections and suggestions and thereafter, the Planning Committee is under an obligation to submit its report to the Planning Authority or an officer appointed by the Planning Authority. After considering the report of the Planning Committee and the objections and suggestions are received, the Planning Authority is empowered to make modifications or changes in the Draft Development Plan. We do not agree with the aforesaid submissions which proceed on the premise that the provisions of Sub-Section (2) of Section 28 are applicable to the process of modification under Sub-Section (1) of Section 37.
18. As stated earlier, sections 21 to 31 of the mrtp act lay down an elaborate procedure for preparation, submission and sanction of the Development Plan. Under Sub-Section (3) of Section 28 of the MRTP Act empowers the Planning Committee to hear objections and suggestions to the Draft Development Plan. Sub-Section (1) of Section 37 of the MRTP Act makes it obligatory for the Planning Authority to give hearing to the persons concerned on the proposed modifications. Section 37 does not provide that either the provisions of section 28 are applicable to the proceedings under Section 37 or that procedure provided in Section 28 can be read into Section 37. As Sub-Section (1) of Section 37 of the MRTP Act specifically makes it obligatory for the Planning Authority to give hearing to the persons concerned on the proposed modifications, it is apparent that the legislature never intended to apply Section 28 to the process of the modifications as provided under section 37 of the mrtp act. Obviously, the legislature has made a distinction between the preparation and sanction of full-fledged Development Plan and a modification made to the sanctioned Development Plan which is of such a nature that it will not change the character of a sanctioned Development Plan.
19. Therefore, requirement incorporated in Sub-Section (2) of Section 28 of the MRTP Act cannot be imported in Section 37 thereof. Hence, the submission that the objections and suggestions received in accordance with Sub-Section (1) of Section 37 should be placed before the Planning Committee of the Planning Authority cannot be accepted.
20. Till the amendment was made by the maharashtra act no. 43 of 2014 with effect from 29 December 2014, there was no time limit provided under Sub-Section (1) of Section 37 of the MRTP Act to submit the proposed modification to the State Government. Even if the law did not provide for an outer limit for submitting the proposal to the State Government for sanction, it follows that a Planning Authority is always under an obligation to submit the proposed modification to the State Government for its consideration within a reasonable time from the date of its publication in Official Gazette. If the Planning Authority is of the view that the proposal for modification should be dropped, even the said decision should be taken within a reasonable time after hearing the persons concerned on the objections and suggestions. Sub-Section (1A) of Section 37 of the said Act can be invoked, if notwithstanding the direction issued by the State to issue a notice under Sub-Section (1), the Planning Authority fails to issue a notice. In such event, the State Government is empowered to issue the notice. Apart from the powers of the State Government under Sub-Sections (1) and (1A) of Section 37 of the MRTP Act, there is an independent power conferred under Sub-Section (1AA) of Section 37 of the MRTP Act wherein the State Government can itself publish a notice under Sub-Section (1) of Section 37 of the MRTP Act without issuing a direction to the Planning Authority. This power can be exercised only if the State Government is satisfied that in public interest, it is necessary to urgently carry out a modification to the sanctioned Development Plan. In the present case, the power under both Sub-Sections (1) and (1AA) of Section 37 of the MRTP Act has not been admittedly invoked.
21. The question arises as to whether the State Government is powerless if on the basis of the directions of the State Government, the Planning Authority publishes a notice under Sub-Section (1) of Section 37 of the MRTP Act but refuses to submit the proposed modification to the State for its sanction within a reasonable time from the date of the publication of the notice inviting suggestions and objections. subsection (1a) of section 37 applies when a Planning Authority fails to publish a notice notwithstanding the direction of the State Government under Sub-section (1). It does not deal with a case where after the publication of the notice under Sub-section (1), the Planning Authority fails to take further steps. sub-section (1aa) of section 37 applies only when there is an urgent need to modify final Development Plan.
22. Now it will be necessary to make a reference to sections 154 and 162 of the mrtp act which read thus:
“154. Control by State Government:- (1) Every Regional Board, Planning Authority and Development Authority shall carry out such directions or instructions as may be issued from time to time by the State Government for the efficient administration of this Act. (2) If in, or his connection with, the exercise of its powers and discharge of its functions by the Regional Board, Planning Authority or Development Authority, under this Act, any dispute arises between the Regional Board, Planning Authority, and the State Government, the decision of the State Government on such dispute shall be final.
162. State Government or person appointed by it may exercise power to perform duty conferred or imposed on Planning Authority and disbursement of expenses:-
(1) If in the opinion of the State Government, any Regional Board, Planning Authority or Development Authority is not competent to exercise or perform, or neglects or fails to exercise or perform, any power conferred or duty imposed upon it by or under any of the provisions of this Act, State Government or any person or persons appointed in this behalf by the State Government may exercise such power or perform such duty.
(2) Any expenses incurred by the State Government or by such person in exercising such power or performing such duty shall be paid out of the funds of such Board or Authority; and if the Board or Authority fails to pay the expenses, then the State Government may make an order directing any person who for the time being has custody of any such funds to pay such expenses from such funds, and such person shall be bound to obey such order.”
23. The powers vesting in the Government under sections 154 and 162 of the mrtp act are independent and distinct powers. The powers under section 162 of the mrtp act can be invoked by the State Government when in the opinion of the State Government, the Planning Authority or the Development Authority has neglected or has failed to exercise or perform any power conferred or duty imposed upon it by or under any of the provisions of the MRTP Act. If the State Government finds that there is a delay on the part of the Planning Authority in forwarding the modification to the State Government in accordance with Sub-Section (1) of Section 37 of the MRTP Act, by exercising the powers under Sub-Section (1) of Section 154, a direction can be issued to the Planning Authority to submit a proposal within a specified time. However, when the Government is of the opinion that the Planning Authority has failed or neglected to perform its duty or failed and neglected to exercise its powers under Sub-Section (1) of Section 37 of the MRTP Act, an action under section 162 of the mrtp act can be initiated and the State Government or any person appointed by it can exercise such powers of the Planning Authority or perform such duty of the Planning Authority. Issuance of a direction under Sub-Section (1) of Section 154 of the MRTP Act is not at all a condition precedent for the exercise of the powers under Sub-section (1) of Section 162 of the Act. Therefore, in a given case, without taking recourse to Sub-Section (1) of Section 154, the State Government can lawfully exercise the powers under Sub-section (1) of Section 162 of the MRTP Act. The requirement of calling for a report under Sub-section (1) of Section 155 of the MRTP Act cannot be read into Section 162 thereof.
24. After the objections and suggestions are submitted to the proposed modifications published in accordance with Sub-Section (1) of Section 37 of the MRTP Act, hearing has to be conducted in terms of Sub-Section (1) of Section 37 within a reasonable time and a decision has to be taken by the Planning Authority within a reasonable time after completion of the hearing on objections and suggestions. If the Planning Authority decides to submit proposed modification to the State Government with or without amendments, even the said action has to be taken in a reasonable time. If actions contemplated under Sub-Section (1) of Section 37 of the MRTP Act on the part of the Planning Authority are not taken within a reasonable time, in a case where a notice is published on the basis of the directions of the State Government, for such neglect or failure on the part of the Planning Authority in performance of its duties and/or exercise of its powers under the MRTP Act, action can be taken under Sub-section (1) of Section 162 of the MRTP Act.
25. Before we deal with the legal and factual submissions made by the learned counsel appearing for the parties, it will be necessary to consider as to what is the character of the function performed by the State Government when the exercise of making DCR or modification of DCR is undertaken in exercise of powers under section 37 of the mrtp act. The said issue is no longer res integra. The Apex Court in the case of Pune Municipal Corporation v. Promoters and Builders Association 2004 10 SCC 796 has already decided the said issue. Paragraph 5 of the said decision reads thus:
“5. Making of DCR or amendment thereof are legislative functions. therefore, Section 37 has to be viewed as repository of legislative powers for effecting amendments to DCR. That legislative power of amending DCR is delegated to State Government. As we have already pointed out, the true interpretation of Section 37(2) permits the State government to make necessary modifications or put conditions while granting sanction. In Section 37(2), the legislature has not intended to provide for a public hearing before according sanction. The procedure for making such amendment is provided in Section 37. Delegated legislation cannot be questioned for violating principles of natural justice in its making except when the statute itself provides for that requirement. Where the legislature has not chosen to provide for any notice or hearing, no one can insist upon it and it is not permissible to read natural justice into such legislative activity. Moreover, a provision for ‘such inquiry as it may consider necessary’ by a subordinate legislating body is generally an enabling provision to facilitate the subordinate legislating body to obtain relevant information from any source and it is not intended to vest any right in anybody. (Union of India v. Cynamide India Ltd. [1987] 2 SCR 841. See generally HSSK Niyami v. Union of India: [1990] 3 SCR 862 and Canara Bank v. Debasis Das (2003) IILLJ 531 SC. While exercising legislative functions, unless unreasonableness or arbitrariness is pointed out, it is not open for the Court to interfere. (See generally ONGC v. Assn. of Natural Gas Consuming Industries of Gujarat [1990] 3 SCR 157 therefore, the view adopted by the High Court does not appear to be correct”.
(emphasis added)
26. Hence, while considering the submissions made across the bar, it will have to be borne in mind that the challenge in this Petition is to the exercise of the legislative power.
27. A submission was made that the modification made to the DCR by the impugned notification is such that it changes the character of the Development Plan. section 22 of the mrtp act deals with the contents of the Development Plan which reads thus:
“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 purpose, such as schools, 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 designation of areas for open spaces, playgrounds, stadium, zoological gardens, green belts, nature reserves, sanctuaries and dairies;
(d) transports and communications, such as roads, high-ways, park ways, 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 1[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 purpose 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 storeys and 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 projections and advertisement signs and boardings and other matters as may be considered necessary for carrying out the objects of this Act.”
28. Thus, from section 22 of the mrtp act, it is apparent that a Development Plan contains several aspects. It deals with the overall planning of a municipal area. It contains proposals for providing several amenities such as water supply, drainage, sewage disposal, etc. It contains proposals for land use. It contains provisions for preventing floods. It is a comprehensive blue print of overall development of a municipal area. The Development Control Regulations (DCR) is only a small part of it. The modification made by the impugned notification to the DCR will apply only to the Heritage Structures of Grades-I, II and III in the city of Kolhapur as defined in the the impugned notification. In the impugned notification, there are 43 Heritage Structures (Grade-I), 20 Heritage Structures (Grade-II) and 11 Heritage Structures (Grade-III) notified. Thus, the Regulations which are incorporated in the DCR by the impugned notification will apply only to the total 74 buildings/structures in the entire city of Kolhapur. Out of the said 74 structures, 21 are vesting in the State Government. 10 structures are either public structures or semi public structures. Thus, the Regulations incorporated in the DCR by the impugned notification will apply to only 74 Heritage structures in the entire city of Kolhapur out of which 21 are vesting in the State Government. By no stretch of imagination, the Regulations incorporated by the impugned notification under Sub-Section (2) of Section 37 of the MRTP Act can affect or change the character of the Development Plan which applies to the entire city of Kolhapur. Therefore, the argument that the modification could have been made only by taking recourse to section 38 of the mrtp act while revising the entire Development Plan cannot be accepted and the same deserves to be rejected.
29. Now the next argument is of breach of the principles of natural justice on the ground that an individual notice on the Petitioner was not served by the Planning Authority as contemplated in the second part of Sub-Section (1) of Section 37 of the MRTP Act. It is contended that the Petitioner was a person affected by the proposed modification. There is no difficulty in accepting the submission that the Petitioner will be affected by the proposed modification. An opportunity of being heard on the objections and suggestions submitted is provided only under Sub-Section (1) of Section 37 of the MRTP Act. The opportunity of being heard is required to be given by the Planning Authority before submitting the proposed modifications to the State Government for its sanction.
30. In the case of Pune Municipal Corporation v. Promoters and Builders Association, the finding of the High Court was that apart from the opportunity of being heard which is provided in Sub-Section (1) of Section 37 of the MRTP Act, while exercising the power of sanction under Sub-Section (2) of Section 37 of the MRTP Act, the State Government is required to give hearing to the affected parties. The Apex Court disapproved the said view taken by the High Court by holding that since making of the DCR or amendments thereto are the legislative functions, it is not mandatory for the State Government to give hearing as Sub-Section (2) of Section 37 of the MRTP Act does not provide to give hearing. In any event, Sub-Section (2) of Section 37 does not provide for giving a hearing before a decision is taken by the State Government on the modifications proposed by the Planning Authority.
31. As far as Sub-Section (1) of Section 37 of the MRTP Act is concerned, it is in two parts. The first provides for publishing a notice in the Official Gazette and in such other manner as may be determined by the Planning Authority inviting objections and suggestions from any person with respect to the proposed modifications. It provides that the notice will provide for submitting objections and suggestions on proposed modification not later than one month from the date of such notice. After the words “one month from the date of such notice”, there is a semi colon and it followed by the words “and shall also serve notice on all persons affected by the proposed modification”. The learned counsel appearing for the Petitioner is right to the extent that Sub-Section (1) of Section 37 contemplates that apart from publishing a notice in the Official Gazette and in such other manner as may be determined by it, the Planning Authority is required to serve notice on all the persons who are affected by the proposed modification. Hence, it is not necessary to specifically consider several decisions relied upon him on this aspect. The last part of Sub-Section (1) of Section 37 of the MRTP Act provides for giving a hearing to “any such persons”. It will be necessary to make a reference to the affidavit-in-reply filed by Shri Prakash G. Bhukte, the Joint Director of Town Planning, Pune Division, Pune, who was appointed by the State Government under Sub-section (1) of Section 162 of the MRTP Act. To his affidavit-in-reply dated 28 February 2015, he has annexed a copy of the letter dated 2 June 2008 addressed by the Assistant Director of Town Planning of the said Corporation to the Urban Development Department in which it is stated that even the action of giving hearing to the concerned persons on the objections and suggestions has been completed. There is a rejoinder filed by the Petitioner dealing with the said affidavit-in-reply. In the said rejoinder dated 6 April 2015, the contents of the said letter have not been disputed.
32. In the Writ Petition, in Clause (ii) of Paragraph 3, a specific stand has been taken that no notice of the proposed modification set out in the notification published in the Official Gazette dated 25 September 2003 was served to the Petitioner. It is specifically contended that it was necessary for the said Corporation to issue a notice to the owners of the buildings which are included in the list of Heritage Buildings and to provide an opportunity of being heard to such owners/the affected persons. It is specifically alleged that the hearing has not been given.
33. As pointed out earlier, in exercise of the powers under Sub-section (1) of Section 162 of the MRTP Act, by an order dated 8 November 2010, the Deputy Director of Town Planning, Pune Division, Pune, was appointed as an officer to perform the functions of the said Corporation on the basis of the notice published in the Official Gazette dated 25 September 2003. There are two affidavits in reply filed by Shri P.G Bhukte, the Joint Director of the Town Planning, Pune Division, Pune. In the first affidavit dated 28 February 2015, it is contended that the Deputy Director of Town Planning submitted the modification proposal to the State Government for its sanction after following necessary procedure and legal formalities stipulated in the MRTP Act. We must note here the stand taken by the said officer in Paragraph 10 of the said affidavit. The paragraph 10 of the said affidavit reads thus:
“10. I state that the Government in Urban Development Department vide letter dated 10 July, 1995 has issued directives to Kolhapur Municipal Corporation to initiate the modification proposal under Section 37 of the Act to incorporate the regulations in respect of conservation of historical and architectural buildings. Accordingly, Municipal Corporation, Kolhapur vide resolution no. 40, dated 30.10.2003 resolved to initiate the procedure under Section 37 of the said Act. The notice for inviting suggestions and objections was published in the Government Gazette dated 25.09.2003 and in Newspapers. However, Kolhapur Municipal Corporation had not completed further procedure under Section 37 and had not submitted the proposal to the Government for sanction.”
34. There is another affidavit filed by the same officer Shri Bhukte which is dated 11 September 2015. In Paragraph 1 of the said affidavit, it is stated that apart from the publication in the Government Gazette dated 25 September 2003, the notice of the proposed modification was published in two daily newspapers “Dainik Sakal” and “Dainik Pudhari” on 11 September 2003. In Paragraph 3, a new stand has been taken which reads thus:
“3. I say that pursuant to the letter dated 02/06/2008 received by this Respondent from the Respondent No. 4, the Officer appointed under Section 162 of the Maharashtra Regional and Town Planning Act, has proceeded with the remaining legal procedure required to be performed under Section 37 of the said Act and was therefore, required to submit the proposal to the Government for sanction. I say that pursuant to the Notification dated 08/11/2010, the Officer appointed under Section 162 of the Maharashtra Regional and Town Planning Act has performed only the remaining work i.e has taken decision on the objections and suggestions received from the Respondent No. 3 and processed the proposal for further necessary action and finally submitted the proposal to the Government. I say that except this procedure, the Officer appointed under Section 162 of the said Act has not performed any other duty.” (emphasis added)
35. On the conjoint reading of Paragraphs 1 and 3 of the said affidavit, it appears that the stand of Shri Bhukte, the Joint Director of the Town Planning, Pune Division, Pune, is that the hearing of objections and suggestions was conducted by the Municipal Corporation and the officer appointed under Sub-section (1) of Section 162 of the MRTP Act took a decision on the objections and suggestions and submitted the proposal to the State Government for sanction.
36. As pointed out earlier, there is an affidavit filed by Shri Ramesh Krishnakant Maskar, the Deputy City Planner of the said Corporation on 15 September 2015. In the said affidavit, the contentions in both the affidavits of Shri Bhukte are not disputed. As stated earlier, in the second affidavit-in-reply of Shri P.G Bhukte, in Paragraph 2, he has specifically stated that the said Corporation completed the procedure of giving hearing of the suggestions and objections and as stated in the letter dated 2 June 2008, the matter was to be placed before the General Body of the said Corporation to enable the said Corporation to forward the said proposal to the State Government. A copy of the said letter dated 2 June 2008 has been also annexed to the first affidavit dated 28 February 2015 of the same officer. It appears that after 2 June 2008, the proposal was never placed before the General Body of the said Corporation and consequentially not forwarded to the State Government. As stated in one of the earlier paragraphs, though there is a rejoinder filed by the Petitioner, the said statement in Paragraph 2 is not disputed. Even the contents of the said letter dated 2 June 2008 in which the Assistant Director of the Town Planning stated that the hearing of the objections and suggestion was completed by the said Corporation is not disputed. Therefore, we will have to proceed on the footing that all the steps up to and inclusive of the stage of hearing of the objections and suggestions have been completed by the said Corporation itself.
37. Now the issue is what is the effect of the failure of the said Corporation of giving a personal notice to the Petitioner in terms of the second part of Sub-Section (1) of Section 37 of the MRTP Act. Perusal of the averments made in the Petition shows that it is not the case of the Petitioner that she was not aware of the notice dated 10 September 2003 published in the Government Gazette dated 25 September 2003. Neither in the Petition nor in the rejoinder, a case is made out by the Petitioner that she was not aware of the said notice dated 10 September 2003 published in the daily newspapers “Sakal” and “Pudhari” of 11 September 2003. It is not the case of the Petitioner that she made an attempt to file objections and suggestions. To the affidavit of Shri Ramesh Maskar, a copy of the notice dated 10 July 2010 addressed by the City Planner of the Corporation to the Manager of the Petitioner is annexed. In the said notice, it was stated that Jayprabha Studio is a part of the list of Heritage Grade-III structures and, therefore, the action of pulling down the structure was illegal. Therefore, the Manager of the Petitioner was called upon to restore the structure. In reply to the said notice as well as earlier notice dated 9 June 2010, Shri A.S Patil, the Manager of the Jayprabha Studio addressed a letter to the said Corporation. In the first Paragraph of the said letter, he has specifically stated that he was addressing the said letter on behalf of the Petitioner. In the said letter, the Petitioner has not disputed that Jayprabha Studio is a part of the list of the Heritage structures. On the contrary, the said fact is accepted.
38. We may state here that in the second affidavit of Shri P.G Bhukte, in Paragraph 1 itself, the reliance has been placed on the public notice dated 10 September 2008 published in daily newspapers “Sakal” and “Pudhari” on 11 September 2003. Even in the first affidavit dated 28 February 2015, in Paragraph 2, it is stated that the notice inviting suggestions and objections was published in the Government Gazette dated 25 September 2003 and in the daily newspapers “Sakal” and “Pudhari” on 11 September 2003. These are the leading Newspapers having wide circulation in the area of Kolhapur. In the rejoinder of the Petitioner which is dated 6 April 2015, she has dealt with the first affidavit of Shri P.G Bhukte. It is not her case that as she was not aware of the notice, she was prevented from filing suggestions and objections. The Petitioner was aware that the Jayprabha Studio has been proposed to be designated as a Heritage Structure of Grade III as evident from the reply sent by her Manager. The only inference which can be drawn is that the Petitioner was always aware of the notice of the proposed modification. But, she did not file any objections. Therefore, there is no prejudice caused to the Petitioner though personal notice was not served to her.
39. We have already adverted to the decision of the Apex Court in the case of Pune Municipal Corporation v. Promoters and Builders Association. In the case of Amit Maru v. State of Maharashtra, through the Secretary, Urban Development Department and the Commissioner of the Mumbai Corporation of Greater Mumbai 2010 4 Bom.C.R 568, a Division Bench of this Court considered section 37 of the mrtp act. After considering what is held in Paragraph 5 in the case of Pune Municipal Corporation v. Promoters and Builders Association, the Division Bench held thus:-
“From the above judgment it is clear that making of DCR or amendment thereof are legislative functions which power is delegated to the State Government. The enquiry contemplated is an enabling provision to facilitate the subordinate legislating body to obtain relevant information from any source and it is not intended to vest any right in anybody. As observed in Indian Express (Bombay) Pvt. Ltd. v. Union of India, 1985 (1) SCC 641 wherein the Court held that subordinate legislation cannot be questioned on the ground of violation of principles of natural justice or on the ground that certain matter was not taken in to consideration.”
(emphasis added)
40. The Division Bench observed thus:
“The challenge to delegated legislation, we may reiterate, can only be on the ground of manifest arbitrariness, unreasonableness, ultra vires or being violative of the fundamental rights.” (emphasis added)
41. As stated earlier, the only inference which can be drawn from the affidavits and the rejoinder is that all the relevant time, the Petitioner was aware of the notice dated 10 September 2003. It is not stated as to why the Petitioner did not file any objections and suggestions. The Planning Authority is not the decision making authority under Section 37. The Planning Authority has to simply forward the proposal for modification along with the suggestions and objections to the State Government. The object of the hearing by the Planning Authority is to facilitate collection of the material to enable the State to perform its legislative function of amending the DCR. As held earlier, while exercising the powers under Sub-Section (2) of Section 37 of the MRTP Act, it is not necessary for the State Government to give an opportunity of being heard to any one. The nature of the function is legislative in character. Therefore, in view of the law laid down in the case of Amit Maru v. State of Maharashtra, unless a manifest arbitrariness, unreasonableness, ultra vires or violation of the fundamental rights is established, the challenge to the delegated legislation cannot be entertained. The challenge cannot be entertained on the ground of the breach of principles of natural justice.
42. At this stage, we must also deal with the decision of the Division Bench of this Court in the case of Brahma-Siddheshwar Cooperative Housing Society Ltd. v. State of Maharashtra. The finding recorded by the Division Bench of this Court in Paragraph 5 is that nothing has been produced on record by the Respondents to demonstrate that the procedure under Sub-Section (1) of Section 37 of the MRTP Act has been followed. The Division Bench has not taken into consideration the binding decision in the case of Pune Municipal Corporation v. Promoters and Builders Association. Moreover, the said decision of the Division Bench is in the facts of the case before it. In the case in hand, the procedure contemplated by Sub-Section (1) of Section 37 up to the stage of giving hearing of the objections and suggestions has been completed by the said Corporation. As the Petitioner did not file objections and suggestions despite of the knowledge of the notice published, the Petitioner cannot claim that any prejudice was caused to her as the individual notice was not served to her. Therefore, in our considered view, the impugned action cannot be interfered with on the ground of breach of principles of natural justice.
43. Now we turn to the arguments advanced by the Petitioner on Sub-section (1) of Section 162 of the MRTP Act. The first argument was that neither in the order under Sub-section (1) of Section 162 nor on the file, the opinion of the State Government regarding the neglect or failure on the part of the Municipal Corporation has been recorded. The second argument was that the officer appointed under Sub-section (1) of Section 162 of the MRTP Act can do only a ministerial job and he cannot form any opinion after hearing the suggestions and objections. We have already quoted section 162 of the mrtp act. We have already referred to the letter dated 2 June 2008 addressed by the Assistant Director of the Town Planning of the said Corporation to the State Government. As assured in the said letter, after 2 June 2008, the proposal was never considered by the General Body of the said Corporation and no further steps were taken on the basis of the notice dated 10 September 2003. The Corporation did not act within a reasonable time and failed to discharge it duty by completing the procedure contemplated by Sub-Section (1) of Section 37 of the MRTP Act. At page 60 of the first affidavit of Shri P.G Bhukte, it is stated that vide letters dated 2 June 2008, 9 June 2009 and 31 July 2009, the State Government directed the said Corporation to complete the process. This statement in the affidavit is not disputed either by the Petitioner or by the said Corporation. After publishing the notice dated 10 September 2003, nothing was done by the said Corporation for a period of seven years. Thus, the neglect or failure to perform its duty on the part of the said Corporation appears on the face of it. Hence, the order passed under Sub-Section (1) of the Section 162 is not bad in law only on the ground that it does not record an opinion that there is a neglect or failure to perform its duty on the part of the said Corporation. The order under Sub-section (1) of Section 162 has been made on 8 November 2010 was published. Thus, the said power is exercised after a lapse of seven year after the notice dated 10 September 2003. By subsequent amendment, the legislature has provided time of one year from the date of notice to complete the procedure under Sub-Section (1) of Section 37 of the MRTP Act. The neglect on the part of the Municipal Corporation to perform its duty under Sub-Section (1) of Section 37 is obvious and there cannot be any debate on this aspect.
44. Sub-section (1) of Section 162 of the MRTP Act clearly provides that the person appointed under the orders of the State Government can exercise all such powers under the MRTP Act of the Planning Authority and perform all the duties of the Planning Authority which are not performed by the Planning Authority. Thus, in short, to everything which was required to be done by the Planning Authority under the provisions of the MRTP Act could have been done by the officer appointed by the State Government. He can exercise all the powers of the Corporation. Therefore, the argument that the officer appointed under Sub-section (1) of Section 162 of the MRTP Act can do ministerial job cannot be accepted. As stated earlier, the stage up to the hearing of the objections and suggestions was completed by the said Corporation and further part of forwarding proposal along with the suggestions and objections was performed by the said officer. It was a duty of the said Corporation to forward the proposal to the State Government to enable it to take a decision under the provisions of Sub-Section (2) of Section 37 of the MRTP Act.
45. Another contention raised is that the officer could not have been appointed under Sub-section (1) of Section 162 of the MRTP Act only for the purposes of publishing notice and inviting objections and suggestions. Even the said argument deserves to be rejected on the plain language used in the said provision and for the reasons recorded above. As the officer appointed under Sub-section (1) of Section 162 of the MRTP Act can exercise all the powers of the Municipal Corporation, the constitutional mandate of Clause (a) of Article 243W of the Constitution of India would not apply.
46. Therefore, in our view, there is no merit in the challenge in this Petition and accordingly, the Petition deserves to be rejected.
47. Accordingly, we pass the following order:
ORDER:
(a) The Writ Petition is rejected;
(b) There will be no order as to costs.
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