Mihir Yadunath Thatte vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(Bom) 1890

2007(1) ALL MR 537
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R. M. LODHA & S. A. BOBDE , JJ.
Shri. Mihir Yadunath Thatte - Petitioner.
Vs.
State of Maharashtra & Ors. - Respondents.
Public Interest Litigation No.66 of 2003
Decided on 21st November, 2006.
Advocates Appeared
Mr. D. A. NALA WADE, for the Petitioner.
Mr. R. M. KADAM, Advocate General with Mr. N. P. DESHPANDE, Assistant Government Pleader for the Respondent No.1.
Mr. K. K. SINGHVI, Sr. Counsel with Mr. R. G. KETKAR and Mr. R. M. PETHE, for the Respondent Nos.2.
Dr. VIRENDRA TULZAPURKAR, Sr. Counsel with Mr. T. N. SUBRAMANIAN and Ms. C. S. RADIA for the Respondent Nos.3 to 23.

Headnote:Constitution of India - Articles 47 and 48-A - Protection of environment - Duty of Government - To protect and improve environment - To safeguard forests and wildlife - Constitutional imperative on State Government and Municipalities - To ensure and safeguard proper environment - To take adequate measure to promote, protect and improve environment. - Article 47 imposes the duty on the State to improve public health as it is its primary duty. Article 48-A enjoins that the State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environment. It needs no emphasis that there is constitutional imperative upon the State Government and the Municipalities not only to ensure and safeguard proper environment but also to take adequate measures to promote, protect and improve the environment.
Maharashtra Regional and Town Planning Act, 1996 - Section 37 - Mumbai Municipal Corporation Act, 1888, Section 4 - Municipal Corporation - Executive powers of - Vests in Commissioner - Commissioner can authorise his subordinate officers/officials to perform his executive acts. - There cannot be any exception to the legal position that the person to whom the function is delegated cannot be further delegated to another. However, asking the City Engineer to hear the objections of the persons affected by modification, it cannot be said for the purposes of Section 37(1), that the Municipal Commissioner delegated any power to the City Engineer. There is no delegation of authority by the Municipal Commissioner to the City Engineer. Rather, the Municipal Commissioner has got the executive act done through the City Engineer not as a delegated authority but like any other administrative work by have such work done through the subordinate officials.
Maharashtra Regional and Town Planning Act, 1996 - Section 37 - Town planning - Development plan - Modification in - Permissible - Modification must not lead to change in character of plan - Modification minor or major - Immaterial - Change of a zone cannot be said as change in character of Development Plan. - The modification in the development plan is permissible is clear from Section 37 of the Town Planning Act. However such modification must not change the character of the development plan. If every modification in the development plan is to be construed as a change in the character of the development plan then Section 37 of the Town Planning Act may be rendered otiose and of no avail. That is not the scheme of Section 37. The validity of the modification in the development plan has to be tested on the touchstone of the alteration in the character of the development plan. Once there is no alteration in the character of the development plan by the modification, it is not material whether such modification is minor or major. It is for this reason that the word ’minor’ was deleted in Section 37 by Act 39 of 1994. Even the fundamental or significant changes in the development plan which do not change the character of the development plan is permissible under Section 37.

R. M. LODHA, J.:- By means of this writ petition, in the nature of Public Interest Litigation, the petitioner challenges the action of the State Government (Respondent No.1) under section 37 of the Maharashtra Regional and Town Planning Act, 1966 (for short, 'the Town Planning Act') in excluding the plot bearing Survey No.86 (Part) Parvati admeasuring 1.75 hectares from Hill Top Hill Slope Zone (HTHS Zone) and inclusion of the same in the Residential Zone of the city of Pune.

2. The petitioner claims to be renowned freelance Journalist. He is Trustee Secretary of a Trust named Rashtra Seva Pratisthan. He also claims to be a Trustee of Acharya Anand Rishiji Blood Bank at Pune. He claims to be the member of the Managing Committee of an organization "Hridayankit" founded to help cardiac patients from amongst down trodden. According to him, he has all along been in the forefront in Mr. Anna Hazare's drive against corruption and has, on his behalf, led several agitations in Pune. He is resident and tax payer of the Pune Municipal Corporation.

3. The petitioner has set up the case that the development plan for Pune city was published in the month of September, 1982 under the Town Planning Act. That development plan provides for preservation, conservation and development of the areas of natural scenery and landscape amongst other provision; while doing so, it has made special provision in respect of HTHS Zone. The Development Control Rules (DCR) dated 5th January, 1987 stipulate that the HTHS Zone should be reserved in favour of the various department of the government for afforestation and creating recreational places. By the Government notification dated 5th June, 1997, modified DCR were made operational for Pune Municipal Corporation and thereby the additional uses like swimming pools, sports and games, health clubs, cafeteria canteen, amusement park were made permissible in the HTHS Zone providing further that the maximum floor space area shall not exceed 4% of the total plot with ground floor structure without stilts.

4. The petitioner has averred that survey No.86 (Part) Parvati comprises of an area of approximately 22 acres. It also comprises various plots viz. survey No.86/1/1, survey No.86/1/1/2, survey No.86/1/2, survey No.86/2, survey No.86/3, survey No.86/4 and survey No.86/47.

5. The State Government, on 22nd August, 2000, suo motu issued direction to the Pune Municipal Corporation (PMC) under section 37(1) of the Town Planning Act to initiate proceedings for conversion of survey No.86 (Part) admeasuring 1.75 hectares from HTHS Zone to the residential zone. According to the petitioner, the aforesaid directive was issued on the ostensible ground that since survey No.87(Part) as well as survey No.86(Part) are situated at the same height and further that survey No.87(Part) has already been included in the residential zone under section 37 of the Town Planning Act and that it was desirable that survey No.86(Part) is also included in the residential zone.

6. Pursuant to the letter dated 22nd August, 2000, the Additional Municipal Commissioner vide letter dated 28th November, 2000 directed the Municipal Secretary of the PMC to table a resolution before the City Improvement Committee and the General Body to seek sanction to invite objections and suggestions from the citizens for excluding survey No.86 (Part) Parvati from the HTHS Zone and including the same in the residential zone and to issue public notice in the local newspapers and after receiving objections and suggestions from the citizens and after going through the same to prepare a report thereof under section 37(1) of the Town Planning Act and submit the same to the Government for its final approval.

7. Accordingly, the Municipal Secretary included the aforesaid subject in the agenda of the meeting of the City Improvement Committee dated 28th November, 2000 as subject No.537/536. The City Improvement Committee on that very day viz. 28th November, 2000 passed the resolution N

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2006 Supreme(Bom) 1890

Cases Referred (9)