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IN THE HIGH COURT OF BOMBAY
B.P. Singh, C.J. S. Radhakrishnan, J.
Bombay Environmental Action Group another .... Petitioners.
Versus
State of Maharashtra others.... Respondents.
Civil Application Nos. 2826, 4750, 3945 of 2000 in Writ Petition No. 1344 of 2000, Civil
Application Nos. 1299, 447 of 2001 in W.P. No. 1344 of 2000 alongwith W.P. No. 656 of 2000, alongwith Civil Application Nos. 2828 3944 of 2000 in W.P. No. 656 of 2000, Civil Application No. 4849 of 2000 in W.P. No. 656 of 2000 alongwith W.P. Nos. 3691 of 2000 923 of 1992, 5710 of 1991, 227 of 1992, decided on 12-10-2001.
Advocates appeared :
N.H. Seervai, Shiraz Rustomjee, Mustafa Doctor i/b. Federal, Rashmikant, in W.P. No. 1344 of 2000, for petitioners.
P. Janardhan, A.A.g., V.P. Malvankar, A.G.P., in W.P. No. 1344 of 2000, for respondent Nos. 1 to 3.
V.B. Naik i/b. Shah Sanghvi, in W.P. No. 1344 of 2000, for respondent No. 7.
A.V. Anturkar, A.S. Gadekar, in W.P. 1344 of 2000, for respondents 4, 8 to 11 13.
Shyam Mehta, i/b., U. Udeshi, Berjis, in W.P. No. 1344 of 2000, respondent No. 12.
R.G. Ketkar, in W.P. No. 1344 of 2000, for respondent No. 2.
Virag Tulzapurkar, Sr.A., R.P. Sabban, in W.P. No. 1344 of 2000, for respondent No. 5.
V.P. Sawant, in C.A. No. 2826 of 2000 in W.P. No. 1344 of 2000, for applicant-intervener.
Y.S. Jahagirdar, Vinit Naik, Ms. C. Salgaonkar Radia, in C.A. No. 1299 of 2001 in W.P. 1344 of 2000, for applicant.
V.P. Sawant, in C.A. No. 447 of 2001 in W.P. No. 1344 of 2000, for applicants.
R.D. Soni, in W.P. No. 656 of 2000, for petitioners.
R.G. Ketkar, in W.P. No. 656 of 2000, for respondent Nos. 1 2.
A.V. Anturkar, Ajay Gadkari, in W.P. No. 656 of 2000, for respondent Nos. 6, 7 to 12.
P. Janardhan, A.A.G., V.P. Malvankar, A.G.P., in W.P. No. 656 of 2000, for respondent Nos. 3 to 5.
N.H. Gursahani, Sr.A., in W.P. No. 656 of 2000, for respondent No. 15.
N.H. Seervai, Shiraz Rustomjee, Mustafa Doctor, i/b. Federal Rashmikant, in W.P. No. 656 of 2000, for respondent No. 6.
V.P. Sawant, in C.A. No. 2828 of 2000 in W.P. No. 656 of 2000, for applicant.
A.S. Gadkari, in C.A. No. 3944 of 2000 in W.P. No. 656 of 2000, for applicant.
R.D. Soni, in C.A. No. 4849 of 2000 in W.P. No. 656 of 2000, for applicant.
A.V. Anturkar, Ajay Gadkari, in W.P. No. 3691 of 2000, for petitioners.
P. Janardhan A.A.G., V.P. Malvankar, A.G.P. in W.P. 3691 of 2000, for respondent 1.
N.H. Seervai, Mustafa Doctor i/b. Federal and Rashmikant, in W.P. No. 3691 of 2000, for respondent Nos. 3 4.
Shiraz Rustomji, H.M. Seervai, Mustafa Doctor i/b. Hariani and Co., in W.P. No. 923 of 1992, for petitioners.
Arif Bookwalla, Tushar Bhavsar, Vibha Salvi Sawant i/b. Little Co., in W.P. No. 923 of 1992, for respondent Nos. 6, 7 8.
P.K. Shroff, i/b. P.K. Shroff Co., in W.P. No. 923 of 1992, for respondent No. 5.
R.G. Ketkar, in W.P. No. 923 of 1992, for respondent Nos. 1 2.
V.P. Malvankar, A.G.P., in W.P. No. 923 of 1992, for respondent No. 3.
Wadia Ghandy Co., in W.P. No. 923 of 1992, for respondent No. 4.
Shiraz Rustomji, N.H. Seervai, Mustafa Doctor i/b. Purohit and Purohit, in W.P. No. 5710 of 1991, for petitioners.
Arif Bookwalla, T. Bhavsar, Vibha Salvi Sawant, i/b. Little Co., in W.P. No. 5710 of 1991, for respondent Nos. 9, 10 11.
P.K. Shroff, i/b. P.k. Shroff Co., in W.P. No. 5710 of 1991, for respondent 8 8-A.
R.G. Ketkar, in W.P. No. 5710 of 1991, for respondent Nos. 1 2.
P. Janardhan, Addl.A.G., V.P. Malvankar, A.G.P., in W.P. No. 5710 of 1991, for respondent Nos. 3 to 6.
Wadia Ghandy Co., in W.P. No. 5710 of 1991, for respondent Nos. 7 7-A.
A.V. Anurkar, in W.P. No. 227 of 1992, for petitioner.
R.G. Ketkar, in W.P. No. 227 of 1992, for respondent No. 4.
V.P. Malvankar, A.G.P., in W.P. No. 227 of 1992, for respondent Nos. 1, 7 to 9.
MRTU & PULP Act, 1971 - Section 31 - Amendment to Regulation 68 - Minor modification - Construction of fly over - Commercial use of space below fly over - Original use indicated in development plan not totally changed - Commercial use of space below fly over permissible. - The original Regulation 68 was introduced by treating it as substantial change in terms of Section 31 by following procedure prescribed by the MRTP Act as a result thereof, underground parking and shopping below existing proposed Development Plan road below land reserved for recreational ground, play ground, garden/park and open space both existing and proposed are permissible. It appears that the State Government thought that the minor additions to the existing Regulation 68 would necessary since there was no provision for permitting such use below any such road which was elevated i.e. fly over. Hence, directive under Section 154 of the MRTP Act was given. As a matter of fact, the said directive was not at all necessary as the then existing Regulation 68 was capable of taking care to meet the situation faced by the State Government in this case. The amendment to the Regulation 68 was not at all necessary. At any rate this amendment was a minor modification to the existing Regulation 68.
The designated area of the Development Plan is highway or road and there is, therefore, no change in user. The area is mainly used for road. The original use is indicated in the Development Plan and when coupled with some other use making the original use of designated area possible is not a total change or not a totally different use. Therefore, commercial use of the space below fly over is permissible under MRTP Act.
Constitution of India, 1950 - Article 226 - Public Interest Litigation - Policy decisions of Government challenged - After commencement of execution of project - Not maintainable on the ground of laches - Importance of matter - Challenge restricted to propose commercial use of space before Andheri Fly over. - Any challenge to such a policy decision must be before the execution of the project is undertaken. Any delay in the execution of the project means over run in costs and the decision to undertake a project, if challenged after its execution has commenced, should be thrown out at the very threshold on the ground of laches if the petitioner had the knowledge of such a decision and could have approached the Court at that time. Just because a petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them. The petition in question could have been thrown out at the very threshold on the ground of laches. The vigilant environmentalist like petitioners ought to have approached this Court well before the commencement of project in question. It was not that the project was undertaken secretly. However, considering the importance of the matter having considerable impact involving the substantial issue relating to the environment, this Court vide order dated 7th May, 1999 thought it fit to restrict this petition to the proposed commercial use, if any of the space below Andheri Fly over.
S. RADHAKRISHNAN, J.:---The main Writ Petition No. 1344 of 2000 filed by Bombay Environmental Action Group is a public interest litigation impugning various permissions and sanctions granted by respondents 1 to 3 for construction of buildings to respondents 4 to 13 in Koregaon Park area, Pune. In this petition the petitioners are challenging the building permissions and sanctions granted with regard to 7 plots viz. plot Nos. 2, 19, 27, 35, 62, 92, 93 and 122/1.
2. Basically the petitioners are challenging the building permissions and sanctions as violative of the following :—
(a) The “building rules” specially framed for construction, for Koregaon Park area by the Collector of Pune known as “Collector's Rules”;
(b) Appendix “S” to the Development Control Rules of Development Plan Pune (Revised) Final and
(c) The terms of the lease deed by which the Collector of Pune on behalf of the State of Bombay had granted the said plots on a long term lease to each of the plot owners by a lease deed.
3. The petitioners contend that the aforesaid Collector's Rules, Appendix “S” and the provisions in the lease deed provide for a regulated development for Koregaon Park area, and the said area is treated as a special area from the point of view of its development. Koregaon Park is spread over an area of approximately 194 acres and is divided into 122 plots. In fact in the year 1920 this area was earmarked as a “Model Colony” and has been preserved as a “park area” and as a prominent residential area in Pune. Here there are some of the most old and residential bungalows are situated and there are four wide parallel lanes between the North Main and South Main Roads, the lanes are thickly wooded with Citrea and other tree like Gulmohar, Neem and Mango giving the parts of the area the appearance of a “park”, the lanes are relatively far from the heavy traffic and noise which one generally associates with urban areas situate in the heart of a growing city like Pune, the lanes are designed as and given the impression of being leafy, thickly planted avenues, the area has the general character of a park with residential bungalows.
4. As far as Appendix “S” was concerned there was a strong objection by the respondents that the same was not in fact, factually included in the Development Control Rules which was sanctioned on 5-1-1987. In that behalf the petitioners had pointed out that in fact Appendix “S” was part of Development Control Rules and was factually a part of the same. In that behalf of the petitioners had pointed out that as mentioned in (Meherbai Karl Khandalawala and others v. The Competent Authority under Urban Land Ceiling and Regulation Act, 1976 and others)1, 1988(2) Bom.C.R. 127 : 1988 Mh.L.J. 543, objections were raised by many members for non-inclusion of the Collector's Rules submitted by State Government and the petitioners had also objected to this and had requested that the Collector's Rules should be incorporated in the sanctioned plan. They had also pointed out that the correspondence between the State Government and B.E.A.G. also shows that the State Government was actively considering to include the Collector's Rules in the D.C. Rules. The petitioners had also relied on the affidavit of Assistant Director of Town Planning wherein in paras 5 and 8 there is a statement that Appendix “S” was part of D.C. Rules which was sanctioned on 5-1-1987. The petitioners had pointed out that in Development Control Rules 2.20 in the copy of the sanctioned Rules reference is made to Appendix “T” to the Rules, if that be so Appendix “S” was already incorporated otherwise there would not have been a reference to Appendix “T”. The index copy of the sanctioned Rules also mentions Appendix “S”. Over and above Appendix “S” has been authenticated by Mr. Pantbalkundri on 18-9-1986 that was before the sanction of the plan. The learned Counsel for the petitioners also pointed out a letter of the Ministry of Environment to the petitioners dated
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