Janhit Manch vs State of Maharashtra - 2006 Supreme(Bom) 1882

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(Bom) 1882

2007(2) ALL MR 110
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
F. I. REBELLO & Dr. D. Y. CHANDRACHUD, JJ.
Janhit Manch- Petitioner
Versus
State of Maharashtra & Ors.- Respondent
Writ Petition No.637 of 2003
Decided on 20th November, 2006.
Advocates appeared
Mr. ASPI CHINOY, Sr. Counsel, Amicus Curaie, present.
Mr. B. RAYANI, President of Petitioner in person present.
Mr. RAVI M. KADAM, Advocate General with Mr. NIRANJAN PANDIT, Asst. Govt. Pleader for Respondent No.1.
Mr. K. K. SINGHVI, Sr. Counsel with Mrs. P.A. PURANDHARE & Mr. V. MAHADIK, for Respondent No.2.
Dr. VIRENDRA V. TULZAPURKAR, Sr. Counsel, with Mr. S.G. SURANA, for Respondent No.4.
Dr. VIRENDRA V. TULZAPURKAR, Sr. Counsel, with Mr. D. J. KHAMBATTA and Mr. RAHUL DWARKADAS i/by M/s. Wadia Ghandy & Co. for Respondent No.5.
Mr. JANAK DWARKADAS, Sr. Counsel, with Mrs. MADHAVI DIVAN, Mr. PARESH SHAH and Ms. POOJA BHATIA i/by M/s. Shah & Sanghavi for Respondent Nos.6 & 7 and for Applicants in N/M. Nos.469/04 & 540/05 & Ch/S.No.82/06.
Mr. D. J. KHAMBATTA, Sr. Counsel with Mr. RAHUL DWARKADAS i/by Wadia Ghandy & Co. for Respondent No. 10.
Mr. ANIRUDDHA JOSHI i/by T.S. PATWARDHAN, for Applicant in N/M. Nos.535/04 & 562/04.
Mr. J. REIS, with Mr. H.V. GALA, for Applicant in N/M. No.577/04.
Mr. T.N. SUBRAMANIAM, Sr. Counsel i/by Ghanekar & Co. for Applicant in N/M. No.712/04 & Ch/S. No.242/04.
Mr. MILIND SATHE, Sr. Counsel, with Ms. USHA GADAGKAR i/by. M/s. Khona & Kayser, for Applicants in N/M. No.204/05.
Mr. R. S. DESHPANDE, for Applicant in N/M. No.222/05 & Ch/S. No.101/05.
Mr. SNEHAL K. SHAH i/b. Purnanand & Co., for Applicants in N/M. No.451/05.
Mr. ANIRUDDHA JOSHI i/by L.J. Law for Applicant in N/M. NoA73/05.
Mr. T.N. Subramaniam, Sr. Counsel i/b. Purnanand & Co. for Applicants in N/M. Nos.388/05 & 422/05.
Mr. ANIRUDDHA JOSHI i/by Mr. NIVIT SRIVASTAVA, for Applicant in N/M. No.285/05.
Mr. M. S. RANE, i/b. Purnanand & Co., for Applicants in N/M. Nos.481/05 & 481/05.
Mr. S. K. SEN with Mr. R. A. K. NIJAM SANI, for Applicant in N/M. No.401/05.
Mr. F. POONIWALA with Mr. Y. R. SHAH, for Applicant in Ch/S. No.305/05.
Mr. FIROZ ANSARI, for Applicant in N/M. No.477/04.
Mr. ATUL G. DAMLE, for Applicant in N/M. No.537/04.
Ms. DEEPA CHAVAN i/by. Mr. PRASANNA SARPOTDAR, for Applicant in N/M. Nos.67/05 & 68/05.
Mr. M.U. PANDEY, for Applicant in N/M. Nos.100/05 & 53/06.
Mr. J.S. KINI, for Applicant in N/M. No. 136/05.
Mr. RAVAL SHAH, for Applicant in N/M. No.250/05.
Mr. RAJIV NARULLA i/by. Jhangiani Narulla & Associates, for Applicant in N/M. No.330/05.
Mr. NIRANJAN LAPASIA i/by. Niranjan & Co., for Applicant in N/M. No.375/05.
Mr. VIRAL VORA, for Applicant in N/M. No.385/05.
Ms. SNEHAL PARANJPE i/by Little & Co., for Applicant in N/M. No.403/05.
Mr. L. D. SHAH i/by L.D. Shah & Co., for Applicant in N/M. No.423/05.
Mr. D. S. SAKHALKAR, for Applicant in N/M. Nos.521/05 &524/05.
Mr. MANOJKUMAR UPADHYAY, for Applicant in N/M. No.522/05, 523/05 & 545/05.
Mr. GIRISHLODHA, for Applicant in Ch/S. No.219/04.
Mr. SATYAN VORA, for Applicant in Ch/S. No.277/04.
Mr. KETAN R. PARIKH, Applicant-in-person in Ch/S. No. 1/05.
Mr. J. D'SILVA, for Applicant in Ch/S. No. 121/05.
Ms. V. MAHADIK with Ms. NEETAMADHYEN i/by S. M. Associates for Applicant in Ch/S.No.181/05.
Mr. T. N. SUBRAMANIAM, Sr. Counsel, with Mr. KISHORE THAKOREDAS i/by Kishore Thakoredas & Co., for Applicant in Ch/S. No.236/05.
Mr. S. G. SURANA, for Applicant in Ch/S. No.241/05.

Headnote:Constitution of India - Articles 14, 21 and 226 - Development Control Regulations for Greater Bombay, 1991, Regulation 34, Appendix VII- B - Public interest litigation - Applicability of procedural law - Attracted but not strictly - Res judicata - Review of Development Control Regulation sought - Petitioner an N.G.O. - Challenge to Regulations permissible - Principles of res judicata cannot prevent Constitutional Court for examining real issue in controversy. - The law as to a challenge to a legislation in public interest litigation would require that if a challenge is made to a legislation on the ground of violation of fundamental right and such a challenge was not raised in the earlier petition and if raised not answered and or even on a new ground not raised earlier, considering the test of public interest, it will be still open to the Constitutional Court, to entertain a fresh petition challenging the legislation as being violative of fundamental rights. The principle of res judicata ought not to be a weapon in the hands of a put up or ill informed petitioner to prevent a Constitutional Court from examining the real issues in controversy likely to affect ecology and environment or the fundamental right of a deprived section of society unable to ventilate their rights.
Constitution of India - Articles 32 and 226 - Public interest litigation - Challenging Development Control Regulations - Adequacy of infrastructure - Judicial re view - Right to life - Human dignity - Mumbai suburbs over crowded, seriously congested - Infrastructure inadequate - Town planning process must have clear nexus with civil amenities - Must consider infrastructure providing clean environmental conditions - Remedial measures for decongestion must be considered - Review limited to determining breach of constitutional prohibition. - The law is clear that the planning process must have a clear nexus with the civil amenities which in Mumbai City are inadequate, even if the on-going projects are completed on time. The State cannot affect the quality of life of its citizens who believe in the rule of law, by releasing additional FSI. Any additional release of FSI by further extending the cut-off date of 1st January, 1995 is bound to affect the quality of life and living conditions of those who believe in the rule of law. Financial inability of the State to provide free housing to encroachers on public lands cannot be, by depriving the law abiding citizens of their rights to a clean environment. Any Development Plan framed has to take into account infrastructural facilities including providing clean environmental conditions to the citizens and remedial measures for decongestion of population.
Constitution of India - Article 226 - Public interest litigation - Locus standi to file - Allegations of mala fide and ulterior motive - Court entertained petition as PIL - Appointed amicus curiae - Heard matter on merits - Another petition on similar points pending - Petition disposed of with certain directions. - However, considering that the Court has entertained the petition as a PIL and also appointed amicus curiae to assist the Court and heard the matter on merits and another PIL on same or similar points was pending being PIL Writ Petition No. 283 of 2005, Court is not inclined to reject the petition merely on this count.

F.I. REBELLO, J.:- The creative judicial interpretation of Article 21 by our constitutional Courts, has broadened our vision, in understanding the expression "right to life". Preventing degradation of our ecology and protection of our environment, including the right to clean drinking water and pollutant free atmosphere are some of its facets. Ecological factors as judicially understood, indisputably are relevant considerations in Town and Country Planning Statutes. Courts to preserve the environment and ecology of "Earth" our home for the present and future generations whilst interpreting environmental laws, lean in favour of protection. The questions raised by the petitioners and which fall for our consideration, give rise to a host of legal issues. Can the State, citing its financial inability to provide housing to encroachers on public and private lands residing in structures which came up before 11-1995 to whom it has granted protection from eviction or its inability to free RO areas, parks, gardens, footpaths and roads from encroachment, enact legislation, granting TDR to builders which TDR is to be used in the suburbs of Mumbai by permitting increase of F.S.I. from 1 to 2. This apart from increasing the burden on infrastructural facilities permits construction without normal set backs and R.O. Areas. According to the petitioner this has resulted in affecting the quality of life of millions of citizens, staying in one room tenements and who pay their taxes and by obeying the law have either purchased or taken on rent tenements, to house themselves and their families. The question posed is, do these law abiding citizens who believe in the rule of law, living in this financial capital of India, have a right to life which is meaningful and worth living with human dignity. Are their children entitled to participate in sports on public playgrounds and enjoy recreational facilities in parks, which are to be maintained, in terms of the development plan. Do senior citizens have a right to live in an atmosphere free from pollution and suspended particulate matter. Can the State abdicate its functions to maintain and preserve the rule of law by amending the Town Planning Laws to legalise encroachments. These are (in Lakh) 2001 69.00 2010 65.04 2020 60.35 some of the broad aspects which we are called upon to consider, while deciding the legal issues which arise in this petition. Though lakhs of square feet of F.S.I. in the form of TDRs have been released pursuant to the S.R.A. Schemes with the avowed object of removing slums and providing human habitation to the hutment dwellers, the problem has become unmanageable because of the State increasing the cut-off dates for protection of illegal hutments from time to time. The Municipal Corporation has prepared a document called "City Development Plan under Jawaharlal Nehru Urban Renewal Mission (JNNURM)". We may refer to the projections of Slum population and the need for housing from that document.

Year Slum Total Formal Houses

Population Population Housing for Slums

(in Lakh) (in Lakh) (in Lakh) (in Lakh)

2001 69.00 119.14 12.54 12

2010 65.04 129.13 16.03 11

2020 60.35 150.39 22.51 10

The same document sets out that for a population of 12 million, in an area of 437 sq. kms. there are only 753 parks with an area of 4.4 Sq. Kms. Forests which this Court had to intervene to protect, cover an area of 174.15 sq. Km. meters. Against the present requirement of 3900 MLD of water supply, what is available is 3100 MLD. There is a vehicle population of 1.2 million with annual increase of 4 to 5%. 9.9 million people commute daily. Out of 2600 MLD of sewage only 1500 is collected and disposed off in an environmentally acceptable manner. The transportation system is plagued by inadequate capacity of the existing arterial roads, overriding surface of the roads, traffic bottlenecks and over burdened suburban rail system. The traffic density at peak hours is 6 to 8 kms. per hour. Based on these statisti

Click Here to Read the rest of this document

2006 Supreme(Bom) 1882

Cases Referred (41)