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2019 DIGILAW 1731 (RAJ)

Ahmad Ali Khan v. State of Rajasthan

2019-06-01

DINESH MEHTA, S.RAVINDRA BHAT

body2019
JUDGMENT : S. Ravindra Bhat, J. 1. In this Public Interest Litigation, direction for quashing changes in the Master Plan of Kuchaman City (Master Plan 2010-2031), by which a bus stand is sought to be constructed, has been claimed. 2. The Kuchaman City Master Plan 2010-2031 (hereafter referred to as "the MP") was framed under the authority of Section 3 of the Rajasthan Urban Improvement Trust, 1959, and the Rules framed thereunder i.e. the Rajasthan Urban Improvement Trust Rules, 1962. By virtue of the provisions of the Rajasthan Municipalities Act, 2009 (hereafter referred to as "the 2009 Act"), the Municipal Board, Kuchaman City (hereafter "the board") prepared the plan. The petitioner relies upon the map designating the land use, especially in khasra Nos. 2782/2372 and 2783/2389 and submits that these were reserved for stadium and playground besides parking place. It is alleged that other uses are expressly barred. The khasra numbers in question, according to the petitioner, are designated in the revenue records as Gair Mumkin Khadda (open depressive land) for the reason they are situated at the end of a slope or lower level resulting in collection of rain water seasonally. Originally the land was reflected, at the time of settlement, as pasture; after settlement it was given a new number i.e. khasra No. 2372. On 30.06.2016, a meeting of the Land Use Change Committee of the Municipal Board was held, in which various proposals were taken up and accepted in the form of resolution. 3. It is submitted that the proposal was to change the use (from the existing purpose, i.e. stadium and playground to bus stand) and the modified proposals permitted construction of a bus stand. It is also alleged that further to the proposal a check list was sent to the Senior Town Planner, Ajmer for necessary action on 23.01.2017, who in turn examined the matter and communicated to the board, by letter dated 01.05.2017, pointing out various issues. It is submitted that on 30.05.2017, the Senior Town Planner, Ajmer wrote to the board drawing attention to the directions of this Court in Gulab Kothari v. State of Rajasthan 2017 (2) RLW 1178 (Raj) to the effect that land use change could be made only with the prior permission of the State Government and in larger public interest. 4. It is submitted that on 30.05.2017, the Senior Town Planner, Ajmer wrote to the board drawing attention to the directions of this Court in Gulab Kothari v. State of Rajasthan 2017 (2) RLW 1178 (Raj) to the effect that land use change could be made only with the prior permission of the State Government and in larger public interest. 4. It is argued by counsel that on 03.07.2017, the proposal was sent by the board to the State Government Land Use Change Committee. The petitioner then states that on 12.03.2018, the Additional Chief Town Planner of the Department of Local Self communicated to the Executive Officer of the Board pointing out that several trees existed at the proposed bus stand site and elicited comments. Thereafter, on 06.06.2018, the Government of Rajasthan permitted the change of land use of khasra No. 2372. 5. It is contended by Mr. Moti Lal on behalf of the petitioner that the proposal to change the land use is contrary to the directions in Gulab Kothari’s case which are that once an area or space is designated for green purposes, its use cannot be changed. In the present case, it is submitted that the original Master Plan published, contemplated use of the open area in khasra No. 2372 for the purposes of playground and the designated and specific recreational use which cannot be used in any circumstances whatsoever. Learned counsel also submitted that the proposal was contrary to the provisions of the Act of 2009, specifically Section 162(2), 162(3) and 162(5). It is stated that Municipal Board, Kuchaman City had to publish a notice- by virtue of Section 162(2), proposing any change or modification in the Master Plan inviting objections and thereafter consider them. Furthermore, a modification, if may, had to be published in the Official Gazette under Section 162(3). It is further stated that no modification- of the published plan could be carried out until and unless it is approved by the State Government under Section 162(5). 6. Mr. Moti Singh also argued that the so-called publication of the proposal said to have been made in this case by the board on 20.04.2016 was, in fact, objected to in writing. It was submitted that the petitioner had even objected to the proposal citing reasons why playground and stadium use could not be changed. 6. Mr. Moti Singh also argued that the so-called publication of the proposal said to have been made in this case by the board on 20.04.2016 was, in fact, objected to in writing. It was submitted that the petitioner had even objected to the proposal citing reasons why playground and stadium use could not be changed. Not only were these objections ignored, there was no mention of this by the Municipal Board in its record or proceedings, nor was the State Government apprised of these points. It was argued, therefore, that the changed Master Plan cannot be made effective, in any event, and constructions commenced as a consequence of the change of Master Plan, alleged modifications are illegal and deserve to be demolished. 7. It was lastly argued that the real purpose of the modified Master Plan is not to sub-serve any public interest but is rather motivated to cater to the private interests because about 86 shops are to be built and auctioned. It was, therefore, submitted that the modified Master Plan is not only contrary to law, has been opposed to the prescribed procedure as well as the judgment in Gulab Kothari’s case, but also conceived with mala-fide intention to enrich private third parties. 8. The Municipal Board is represented by Senior Counsel Mr. Ravi Bhansali; the board filed its reply in these proceedings. The State Government is represented by Ms. Rekha Borana, the Additional Advocate General. Both these official respondents have resisted the Public Interest Litigation. 9. The Municipal Board has filed an affidavit which states that the decision to establish a new bus stand by modifying the impugned land use was in view of the larger interest of the travelling public and to solve the traffic problems. Counsel highlighted essentially the policy matters where the Court would be slow in exercising discretion under Article 226 of the Constitution. Furthermore, pursuant to the modification, Rs. 3 crores were sanctioned towards the work approved, part of which has been executed already. Further, Mr. Bhansali submitted that construction of the new bus stand was undertaken due to the directions of this Court dated 24.08.2016 and 15.05.2018 in Kuchaman Bus Operators v. State & Ors. (S.B. Civil Writ Petition No. 9728/2016). 10. Furthermore, pursuant to the modification, Rs. 3 crores were sanctioned towards the work approved, part of which has been executed already. Further, Mr. Bhansali submitted that construction of the new bus stand was undertaken due to the directions of this Court dated 24.08.2016 and 15.05.2018 in Kuchaman Bus Operators v. State & Ors. (S.B. Civil Writ Petition No. 9728/2016). 10. It is submitted that the old bus stand at Kuchaman City was situated right in the middle of the City and was inadequate to cater to the interests of the large travelling public, keeping in mind endless traffic jams and severe traffic congestion within the city. It is further submitted that keeping in mind the Building Bye-Laws of 2010, objections were invited, to the proposal for change of land use and construction of a bus stand, in addition to the stadium. 11. Learned Senior Counsel highlighted with the aid of the map produced in Court and the photographs, that the stadium originally conceived of, has not been shifted and a specific site has continued to be earmarked for it and that the bus stand- on account of the changed land use has been approved in a different area i.e. khasra No. 2372. It is submitted that in compliance with Section 162, after the resolution was made by the Municipal Board, the proposal was published on 20.04.2016. This specifically earmarked 22500 sq. meters land, for which the existing land use was "Abadi Bhumi", into development of a bus stand as the proposed use. It is stated than when an application was made by the citys Municipal board, on 23.01.2017, the specific format of the application, in fact, disclosed to the effect that modification proposal had been published in the newspaper in accordance with law. 12. The counsel also placed reliance upon the letters received by the Municipal Board dated 01.05.2017 and 30.05.2017 from the Assistant Town Planner and Senior Town Planner respectively in connection with the proposal for modified land use seeking details, such as particulars of the location through satellite map; number of trees existing on the site etc. The Municipal Board also relies upon the letter dated 12.03.2018, issued by the Directorate, Local Bodies, Department of Local Self, Government of Rajasthan in this connection. The Municipal Board also relies upon the letter dated 12.03.2018, issued by the Directorate, Local Bodies, Department of Local Self, Government of Rajasthan in this connection. The State Level Committee of the Rajasthan Government examined the proposal and on 06.06.2018 the Directorate, Local Bodies, Government of Rajasthan wrote to the Municipal Board, Kuchaman City after discussing the proposal for modification, granting its approval. The relevant extract of the permission reads as follows:- "The proposal has been examined. The use of the concerned land, according to the Kuchaman Master Plan-2031 is "stadium cum occupation". According to the site inspection conducted, of the bus stand by the Municipal Board the land is situated near the 60 feet wide Padamburi Bye-pass road. The land on which the bus stand is proposed is situated opposite to a 60 feet approach road. The area of the land is 22500 square meters. The land is available; in front of the land is a stadium developed by the Municipal board and about 200 meters away from the land is a colony developed by the Board. There were babool trees and shrubs on the proposed land and the same were removed by the Municipal Board, and therefore, currently, no plantation exists there. In relation to the issue in question, according to the letter dated 29.11.2017 by the Director, Municipal Board, Kuchaman City, the present location is a quite small space within the city where there is a constant problem of traffic. Due to this reason, it has been proposed to construct a bus stand on the Municipal land near the stadium. According to the letter dated 30.05.2017 of the Regional Senior Town Planner, Ajmer Zone, Ajmer, the concerned land is situated in Khasra No. 2782/2372 and 2783/2389. According to the Master Plan, the land in question is reserved for residential/stadium purpose, and the right of way is 60 feet. Colonies are being developed for residential purposes in the vicinity of the land in question. Therefore, in view of the development near the proposed land, it has been proposed to make a change and make a bus stand near the residential/stadium area. Colonies are being developed for residential purposes in the vicinity of the land in question. Therefore, in view of the development near the proposed land, it has been proposed to make a change and make a bus stand near the residential/stadium area. Now, after taking into account, all the above considerations and the directions of the High Court in Gulab Kothari v State of Rajasthan WP No. 1554/2004 in its judgment dated 12-1-2017 and the Urban Development departments letter dated 20-07-2017, the proposed modification is approved and consequential steps can be taken..." ************* ***************" 13. Section 162 of the Act of 2009 reads as follows:- "162. Subsequent modification of Plans.- (1) At any time after a Plan has come into operation according to provisions of Section 161, the Municipality may, with the prior approval of the State Government, make any modification to the Plan as it thinks fit, the modifications, which in its opinion, do not affect material alterations in the character of the Plan and which do not relate to the extent of land uses or the standards of population density. (2) Before making any modification to the Plan, the Municipality shall publish a notice, inviting objections before such date as may be specified in the notice and shall consider all objections and suggestions that may be received by the Municipality. (3) Every modification made under the provisions of this Section shall be published and the modification shall come into operation either on the date of publication or on such date as the Municipality may fix by notice published in the Official Gazette whereupon the modified Plan shall come into operation to all intents and for all purposes of this Act. (4) Upon coming into operation of any modified Plan, any reference in any other Section, except in the foregoing Sections of this Chapter, to the Mater Development Plan or any other plan, shall be construed as a reference to the Master Development Plan or, as the case may be other plan, as modified under the provisions of this Section, (5) No modification of the Plan shall be made under this Section until and unless it is finally approved by the State Government." 14. The judgment in Gulab Kothari (supra) inter alia, observed as follows: "80. The judgment in Gulab Kothari (supra) inter alia, observed as follows: "80. Coming to the provisions of Act No. 18 of 2009, the said Act incorporates specific chapter i.e. Chapter XI, which deals with urban development and town planning within the municipal area. Section 159 thereof, empowers the Municipality to carry out detailed survey of the city and prepare a Master Development Plan and other statutory plans specified i.e. Execution Plan for five years period and Annual Municipal Action Plan for one year period. The procedure provided for preparation and sanction of the plan as laid down under Section 160 of the Act No. 18 of 2009, is not different than the procedure as provided for the preparation and sanction of the Plan under the Act No. 25 of 1982 or the UIT Act and other relevant statutes. Section 162 of the Act No. 18 of 2009, which deals with subsequent modification of the Plan, sub-section (1) thereof, empowers the Municipality to make modification to the Plan as it thinks fit which in its opinion do not affect the material alteration in the character of the Plan and which does not relate to the extent of the land uses or standards of the population density. Thus, like the Authority under the Act No. 25 of 1982, the Municipality is also not empowered to make modification in the Plan on its own which affects material alteration in the character of the Plan. But then, Section 162 does not incorporate any provision permitting the Municipality to make any other modifications not referred to under sub-section (1) of Section 162 with the approval of the State Government. Rather, as per the mandate of provisions of subsection (5) of Section 162, no modification of the Plan even which is referred to under sub-section (1), is permissible to be made unless and until it is finally approved by the State Government. Suffice it to say that during the operative period of the Plan under Section 162 of the Act No. 18 of 2009, no modification other than those referred to under sub-section (1) of Section 162 discussed hereinabove, is permissible to be made. 81. Suffice it to say that during the operative period of the Plan under Section 162 of the Act No. 18 of 2009, no modification other than those referred to under sub-section (1) of Section 162 discussed hereinabove, is permissible to be made. 81. Further, it is relevant to notice that by virtue of provisions of Section 164, any Master Development Plan prepared under the provisions of any other law for time in force, prior to commencement of the Act No. 18 of 2009, shall be deemed to have been prepared under the Act No. 18 of 2009 and the provisions incorporated as aforesaid for sanction, modification and operation of the Master Plan/Master Development Plan shall mutatis mutandis apply, however, the same shall cease to operate as soon as Plan is sanctioned under the provisions of the Act No. 18 of 2009. In this view of the matter, except in respect of the urban areas in respect whereof Improvement Trust has been constituted under Section 8 of the UIT Act and the Jaipur Region, Jodhpur Region and Ajmer Region, the development planning whereof is governed by the provisions of Act No. 25 of 1982, Act No. 2 of 2009 and Act No. 39 of 2013 respectively, the urban development and town planning in other municipal areas shall be governed by the provisions of Chapter XI of the Act No. 18 of 2009. ******************** ************* 115. Coming to the use of the land falling within the peripheral control belt for the purposes other than those specified, during the operative period of the Master Plan of the city, as discussed hereinabove, the basic purpose of the constitution of statutory authority to undertake the urban development planning is to promote healthy growth and development of the city so as to achieve the ultimate object of promotion and enhancement of quality of life for the citizens. Undoubtedly, while notifying the urban area and undertaking the development in the urban sable area, as per the land use plan depicted in the Master Development Plan, the peripheral control belt has been provided so as to control the development in surrounding areas inasmuch as, unplanned and un-authorised development in the peripheral control belt is bound to affect the quality of life of the inhabitants in the urbanised and urbanisable area. In this view of the matter, this court is firmly of the opinion that during the operative period of the Master Plan, the land use in the peripheral control belt for the purposes other than those specified generally should not be permitted. But if the change of the land use in the peripheral control belt is considered to be inevitable, the subsequent alteration or modification of the plan must sub-serve the legislative intent of planned development for promotion and enhancement of the quality of life of the citizens and therefore, any isolated change in the land use of the land falling within the peripheral control belt without inclusion thereof in the land use plan of urbanisable area shown in the Master Development Plan, the development wherein has to be further regulated by Zonal Development Plans notified, in accordance with the procedure laid down, should not be permitted. That apart, any change in the land use plan in the peripheral control belt during the operative period of the plan must be in the larger public interest and not to serve the interest of individuals. 116. There is yet another aspect of the matter, which requires consideration of this court. Indisputably, as the city grows, adequate open spaces, green spaces such as parks, woodlands and rolling country sides accessible to all the inhabitants must be reserved and preserved which by all means would contribute in large measure to quality of life, the citizens are entitled for and therefore, the population growth and migration to the city may necessitate modification in the planning but then, under the pressure of population growth and migration, the land use plan cannot be permitted to be changed in such a manner that it converts the city into just a cluster of buildings frustrating the very object of the planned development undertaken under the statutory scheme so as to ensure healthy and peaceful environment for the citizens. It needs to be emphasised that whenever modification of the Master Plan is undertaken so as to include the land forming part of the peripheral control belt within the scheme of urban development, the authorities entrusted with the duty to ensure the quality of life for the citizen through planned development, are under an obligation to take into consideration the requirement of the lung spaces for the existing population of the city and reserve the adequate land for that purpose in the close vicinity inasmuch as, if the urbanised area in the city go on expanding and the further inclusion of the surrounding villages is made within the urbanisable area, the lung spaces required for existing population in the close vicinity cannot be done away with or shifted to a remote place and therefore, whenever the modification, alteration or revision of the Master Development Plan is undertaken, the green spaces required for the existing population must be reserved by providing buffer zone. To put in other words, any development activity within the peripheral control belt for the purposes other than those specified under the peripheral control belt should not be permitted without ensuring the fulfillment of requirement of open spaces/green spaces for the existing population settled in different zones of the city. ******************** *************" 15. There certainly are some observations in the judgment which suggest that spaces reserved for public use, such as play grounds and green areas should be preserved and not subjected to the vagaries of change or modification in the master plan. However, this court is of the considered view that those observations have to be considered in the context of each case, rather than viewed as dogmatic, carved in stone precepts; it is an aphorism that judgments should not be read as statutes. 16. In the present case, the boards proposal was first published on 20-4- 2016; the public notice invited objections. This, in the opinion of the court, satisfies the requirement of Section 162 (2) which requires that any modification should be preceded by publication of the proposed notification, for awareness to members of the public. The scheme of Section 162 is such that Section 162 (1) spells out the general power to modify a Master Plan; Sections 162 (2) to Section 162 (5) prescribe the procedure that is to be followed before a master plan is modified. The scheme of Section 162 is such that Section 162 (1) spells out the general power to modify a Master Plan; Sections 162 (2) to Section 162 (5) prescribe the procedure that is to be followed before a master plan is modified. According to Section 162 (3), no modification to a Master plan can be carried out, without approval of the State Government. This approval, in the present case, was the one granted on 6th June, 2018; it was preceded by consultation and submission to the Senior Town Planner; the format submitted to that official disclosed that the modification proposed was published for information and eventually, the state level committee granted its approval. This step fulfils the requirement under Section 162 (5) of the Act. In these circumstances, it is held that the approval of the government was sought by the board; the approval was also granted. As far as the argument that the modification is not bona fide, because the board has taken steps to construct shops, this court notices that this is part of the proposal to modify the Master Plan; the bus stand complex includes building of some shops; the court does not consider the move as mala fide or contrary to the modification; it was always part of the proposal. 17. The last question is whether there was compliance with Section 162 (3) inasmuch as the modification was published in the Official Gazettee. Here, the board was unable to satisfy the court about compliance with that requirement. In ITC Bhadrachalam Paper Board v Mandal Revenue Officer 1996 (6) SCC 634, the Supreme Court emphasized the mandatory nature of publication wherever the condition is spelt out in a statute, as follows: "The object of publication in the Gazette is not merely to give information to public. Official Gazette, as the very name indicates, is an official document. It is published under the authority of the government. Publication of an order or rule in the Gazette is the official confirmation of making of such an order or rule. The version as printed in the Gazette is final. The same order or rule may also be published in the newspaper or may be broadcast by radio or television. It is published under the authority of the government. Publication of an order or rule in the Gazette is the official confirmation of making of such an order or rule. The version as printed in the Gazette is final. The same order or rule may also be published in the newspaper or may be broadcast by radio or television. If a question arises when was a particular order or rule was made, it is the date of Gazette publication that is relevant and not the date of publication in a newspaper or in the media Pankaj Jain Agencies v Union of India [1994 (5) S.C.C.198]. In other words, the publication of an order or rule is the official irrefutable affirmation that a particular order or rule is made, is made on a particular day [where the order or rule takes effect from the date of its publication] and is made by a particular authority; it is also the official version of the order or rule. It is a common practice in courts to refer to the Gazette whenever there is a doubt about the language of, or punctuation in, an Act, Rule or Order. Section 83 of the Evidence Act says that the court shall presume the genuineness of the Gazette. Court will take judicial notice of what is published therein, unlike the publication in a newspaper, which has to be proved as a fact as provided in the Evidence Act. If a dispute arises with respect to the precise language or contents of a rule or order, and if such rule or order is not published in the Official Gazette, it would become necessary to refer to the original itself, involving a good amount inconvenience, delay and unnecessary controversies. It is for this reason that very often enactments provide that Rules and/or Regulations and certain type of orders made thereunder shall be published in the Official Gazette. To call such a requirement as a dispensable one-directory requirement-is, in our opinion, unacceptable" 18. The learned senior counsel for the board had argued that the modification in the present case was preceded by publication of the final approved, modified plan, in the boards notice board, which was in compliance with Section 162 (3). To call such a requirement as a dispensable one-directory requirement-is, in our opinion, unacceptable" 18. The learned senior counsel for the board had argued that the modification in the present case was preceded by publication of the final approved, modified plan, in the boards notice board, which was in compliance with Section 162 (3). This court is of the opinion that the specific reference to the Official Gazettee and the categorical stipulation that a modification would not be effective, if not published in the gazettee, is couched in imperative terms. In the absence of such publication, as stated in ITC Bhadrachalam, the modification has no effect in the eyes of law. 19. As a result of the above discussion, it is held that the modified proposal, which sought to alleviate the acute traffic congestion in the town of Kuchaman, is in conformity with law; the court is also satisfied that the original playground in the form of a stadium, which was in the unamended Master Plan, has not been disturbed. However, till the publication of the modification (as approved by the government) it cannot be deemed to have come into force. In the peculiar circumstances, the respondents are hereby required to ensure publication of the modified Master plan, in the Official Gazette as expeditiously as possible. The state government is directed to ensure that this final step is taken at the earliest possible opportunity. 20. Subject to the above observations and directions, the writ petition has to fail and is dismissed but without order on costs.