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High Court of Judicature at Bombay
MRIDULA BHATKAR, J.
PARISAR
Versus
Pune Municipal Corporation
SECOND APPEAL NO.534 OF 2011 WITH CIVIL APPLICATION NO.1048 OF 2011
Decided on : 26-11-2012
Corporation not required to follow procedure under Section 37 as per Section 22 of Act for construction of road on other side of river. - Though the Corporation has power to construct new public street, this power cannot be used unless Corporation follows procedure laid down under Section 37 of the MRTP Act.
Section 37 is about the modification of the final Development Plan. In the final Development Plan of Pune city, the suit road is admittedly not shown. However, in the last final Development Plan a similar road running across the river but on the other side of the river was shown.
When Corporation took decision to cancel the construction of that road and wanted to delete that road from the final Development Plan, admittedly Corporation followed procedure under Section 37 of the Maharashtra Regional Town Planning Act. The submissions made by the counsel for the appellants that if deletion amounts to modification in a final Development Plan then the addition of the similar road on the other side of the river bound to be a modification of the final Development Plan.
Though apparently these submissions appear convincing on close scrutiny of the legal position of the relevant sections of the MRTP Act are found incorrect and fallacious.
Thus, by Section 22-A insertion of new road is considered as substantial modification and this being a substantial modification the competent authority is required to follow a procedure under Section 37 of the MRTP Act. Thus insertion of the road in final Development Plan being substantial modification, the authority has to take proper steps under Section 37 of the Act. However, Section 22-A has came into force in 2011. Therefore, the provision cannot be applied retrospectively but has prospective application. In the absence of specific meaning of substantial modification, construction of a new road and insertion of the same cannot be said as a substantial modification as per the Act prior to insertion of Section 22-A.
Bombay Provincial Municipal Corporation Act, 1949 - Sections 52, 205 and 224 - MRTP Act, 1956, Sections 22-A and 37 - Notice for construction of road.
Since there is no affected person contemplated under Section 37 of Act hence corporation not required to issue notice under Section 37 of Act for construction of road. -
Submissions that people at large are directly affected as the river is not protected and ecological balance of city is spoiled and so notice was required, do not hold any substance. Assuming every citizen in city has interest in river and river bank being public place, considering object and spirit of Section 37 of MRTP Act, they cannot be treated as affected persons to whom to give notice is mandate under Act. Word ’affected’ in section contemplates special, personal or specific damage or loss hence it is not necessary for planning authority to give notice under Section 37. Cause of appellants to preserve natural resources in city and improve quality of township by maintaining ecological balance is laudable. It is true that people’s participation in township is necessary.
Objection raised by appellant cannot be legally sustained. BPMC Act has provided particular procedure under Section 205 of Act which is to be followed by planning authority when new road is constructed and record shows that necessary permission from competent authority or Government were obtained by Corporation. Hence due to above reasons notice under Section 37 is not necessary.
Bombay Provincial Municipal Corporation Act, 1949 - Sections 52, 205 and 224 - MRTP Act, 1956, Section 37 - Public street.
Since public street includes levelled street, channeled, skewered or repaired streets out of municipal and public fund hence corporation has power to make new public street. - Definition cannot be stretcher restrict powers of Corporation which flow from Section 205. Chapter 14 of BPMC Act is in respect of streets. Word ’construction’ is absent in definition clause Section 2(52) of public street. Restrictive interpretation of Section 2(52) is not in consonance with the scope of Chapter 14 of Act. Therefore taking help of Section 2(52) of Act while interpreting Section 205 is erroneous. Section 205 is specifically about power of Corporation to make new public streets.
1. Heard. Admit. By consent of parties appeal is heard finally at the stage of admission.
2. Second Appeal is filed against the judgment and Order dated 30.6.2011 of the First Appeal Court, Pune in Civil Appeal No.293 of 2008 thereby confirming the judgment and decree passed in R.C.S No.725 of 2000 passed by the trial Court.
3. The appellant is a Society registered under the Societies Registration Act, 1860 working for the conservation of nature and environment. The respondent is a Corporation established under the Bombay Provincial Corporations Act, 1949. (Hereinafter called as “BPMC ACT”) The respondent-Corporation took a decision to construct new roads running parallel to river Mutha in the heart of the Pune city. The suit road is one of such roads and its construction started in the year 2000. The said decision was detrimental to the existence of river Mutha, so appellant society filed a suit for declaration that the Corporation has no right to construct road or structures in Mutha river bed and for perpetual injunction. In the suit the appellants have also prayed for other directions to be given to the Corporation to conserve Mutha river bed and green belts surrounded and also to conserve heritage structures at the Mutha river bank. The suit was contested by the respondent-Corporation by filing written statement on different grounds. The issues in respect of the power of the Corporation to construct such roads & possibility of the pollution of the water were framed. So also the issues about the maintainability of the suit for want of Section 487 of the BPMC Act and as the suit involved a public interest, therefore, on the ground of the locus-standi of the appellant and the jurisdiction of the civil Court, were framed on the basis of the contentions raised by the Corporation in the written statement. The appeal Court also determined the points on the same line and the appeal and the suit both, were dismissed by the courts below.
4. On perusal of judgments of both the courts and the evidence adduced by both the parties, a substantial question of law is formulated as under:-
“While exercising power to construct new public streets under Section 205 of the BPMC Act of 1949, is it mandatory for the Corporation to follow the procedure under Section 37 of the MRTP Act of 1956 or not?
5. The learned Counsel for the appellants submitted that the Corporation has no authority to construct any road without following procedure under Section 37 of the Maharashtra Regional Town Planning Act (Hereinafter called as “MRTP Act”). He submitted that the appellate Court has committed an error in understanding the term new public street used in section 205 of the BPMC Act of 1949. The appeal Court and the trial Court both, ought to have read section 205 of the BPMC Act in context with sub-section 52 of Section 2 of the Act. The decision of the Corporation to construct a new road from Sambhaji pool to Shivaji pool in river bed of Mutha is not at all protected under Section 205 of the Act. The order of the Collector was obtained post facto ie after the construction of the road. The learned Counsel for the appellants submitted that earlier in the first Development Plan, a similar road was shown from the other side of the river Mutha running parallel to the suit road. However, Corporation took a decision to cancel that road and decided to construct a similar road on the other side of river Mutha ie the suit road. The learned Counsel argued that while deleting the other parallel road shown in the final Development Plan, the respondent-Corporation followed the procedure contemplated under Section 37 of the MRTP Act. However, while constructing the suit road, it did not follow the same procedure. In fact, it was mandatory to follow procedure under Section 37 to construct a new road which was not shown in the final Development Plan. He submitted that the vehicular traffic on the suit road will pollute the water of the river and will also affect
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