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2011 Supreme(Bom) 1529
IN THE HIGH COURT OF MAHARASHTRA
A.S. Oka, V.L. Achliya, JJ.
Nagrik Chetna Manch - Petitioner
Vs.
State of Maharashtra - Respondent
P.I.L. No. 156 of 2006
Decided On : 15-01-2011
Advocate Appeared:
For the Petitioner: Ms. Kiran Bhagalia, Ms. Kirti Kokil, S.B. Deshmukh
For the Respondent: V.S. Gokhale, A.A. Kumbhakoni, Abhijit Kulkarni, Manoj Badgujar
Headnote:
Environment Protection - Construction of Road through Afforested Hills - Maharashtra Regional and Town Planning Act, 1966, Maharashtra Municipal Corporations Act, 1949 - Section 31 of MRTP Act, Article 48-A and 51-A of the Constitution - [SUMMARY OF ACT SECTIONS: MRTP Act, 1966 - Section 31; MMC Act, 1949 - Section 205] - The court quashed the impugned resolution passed by the Pune Municipal Corporation for the construction of a road through afforested hills, emphasizing the need to protect the environment and man-made forests. The court highlighted the mandatory duty of the Municipal Corporation to preserve urban forestry and protect the environment under Section 63(1)(b) of the MMC Act. It also emphasized the constitutional mandate to protect and improve the environment under Article 48-A and 51-A, and the need for an Environment Impact Assessment before taking a decision on the construction of the proposed road.
Fact of the Case:
The petitioner, a public charitable trust, filed a PIL challenging the decision of the Pune Municipal Corporation to construct a road through afforested hills. The hills were successfully afforested by the State Government, and the proposed road would require cutting down more than 1000 trees. The petitioner contended that the proposed road would adversely affect the environment and the man-made forest, and the Municipal Corporation did not consider the impact on the environment before passing the impugned resolution.
Finding of the Court:
The court found that the impugned resolution was passed without considering the adverse impact on the environment and the man-made forest. It emphasized the mandatory duty of the Municipal Corporation to preserve urban forestry and protect the environment under the MMC Act. The court also highlighted the constitutional mandate to protect and improve the environment under Article 48-A and 51-A, and the need for an Environment Impact Assessment before taking a decision on the construction of the proposed road.
Issues: The key issues were the adverse impact of the proposed road on the environment and the man-made forest, the mandatory duty of the Municipal Corporation to preserve urban forestry, and the need for an Environment Impact Assessment before taking a decision on the construction of the proposed road.
Ratio Decidendi: The court held that the impugned resolution was vitiated by non-consideration of relevant factors, including the mandatory duty of the Municipal Corporation to preserve urban forestry and protect the environment. It emphasized the need for an Environment Impact Assessment before taking a decision on the construction of the proposed road, in line with the constitutional mandate to protect and improve the environment.
Final Decision: The court quashed the impugned resolution passed by the Pune Municipal Corporation for the construction of the proposed road through afforested hills, emphasizing the need to protect the environment and man-made forests. It directed the Municipal Corporation to invite recommendations from the Committee of Experts, consider the impact of the proposed road on the environment, and take a fresh decision in compliance with the mandatory duty to protect the environment.
A.S. Oka, J.
The facts of the case The petitioner which is a public charitable trust has filed the present PIL for challenging the decision of the Pune Municipal Corporation to construct a road through hills which have been successfully afforested by the Social Forestation Department of the State Government. A resolution was passed by the General Body of the second respondent-Pune Municipal Corporation being Resolution No. 532 (for short "the impugned resolution") on 27th February, 1996 for construction of a 60 feet wide road (for short "the proposed road")through the hills/hills slope from Paud Phata Road upto the gate of Balbharti building complex. It is pointed out in the petition that in the draft revised Development Plan for the city of Pune which was published in the year 1982, the proposed road was shown. However, while sanctioning the draft Development Plan, in exercise of the power under section 31 of the Maharashtra Regional and Town Planning Act, 1966 (for short 'the MRTP Act'), the State Government did not grant approval to the said proposed road shown in the draft revised Development Plan.
2. It is pointed out that the hills through which the proposed road will pass are lush green having a large number of trees. The hills are regularly visited by hundreds of people for walk in every morning and evening. It is pointed out that the visitors regularly visit and contribute towards afforestation the forest on the hills. Reliance is placed on the proposal submitted by Dr. Uday Kulkarni in which adverse effects of the proposed road have been pointed out. The contention in the petition is that without carrying out the basic investigation and survey, the Municipal Corporation has thoughtlessly proposed to construct the said road. It is pointed out that for the construction of the road in terms of the impugned resolution, more than 1000 grown up trees will have to be cut. It is pointed out that the Municipal Corporation has already cut more than 100 trees including the sandal wood trees. It is contended that the area may not have been declared as a forest but it continues to be a forest which needs to be preserved. It is pointed out that during the last few years, there has been a steady deterioration of environment in the city of Pune. It is contended that creating such a forest is useful for carbon trapping. It is urged that the power under section 205 of the Maharashtra Municipal Corporations Act, 1949 (for short the 'MMC Act') cannot be used to defeat the provisions of the section 31 of the MRTP Act. It is pointed out that once the proposed road is constructed through the hills, it will be impossible for the Municipal Corporation to control the encroachments by hawkers, garden restaurants and unauthorised constructions on the side of the road. It is pointed out that various reptiles and animals like deers are found in the area and even large number of birds are found. It is pointed out that without carrying out any survey, the decision has been hastily taken. There is a reply filed by Shri Madhav Latkar, the Development Engineer (Road) of the Pune Municipal Corporation on 7th April, 2008. In the said reply, it is pointed out that a Committee of Experts has been constituted by the Commissioner of the Pune Municipal Corporation which includes Major General Shri S.C.N. Jathar (Retired) the Chairman of the Nagrik Chetna Manch which is the petitioner herein. The Additional City Engineer (Roads) of the said Municipal Corporation was appointed as its Member Secretary. The terms of reference of the Committee of Experts have been annexed to the said affidavit. Interim report of the Committee was annexed to the said affidavit which records that the Environment Impact Assessment report of the project of construction of the proposed road does not exist. Therefore, a recommendation was made to appoint an institution recognised by the Government of India such as National Environment Engineering Research Institute (for short '
