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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. Dhanuka, M.G. Sewlikar, JJ.
Kishor Manohar Kamble & Ors. – Appellants
Versus
Pune Municipal Corporation & Ors. – Respondents
Writ Petition No. 7354 of 2021
Decided On : 13-09-2022
WRIT PETITION - QUASHING AND SETTING ASIDE APPROVAL - CHANGE IN ALIGNMENT OF AMBIL ODHA - STRAIGHTENING OF AMBIL ODHA - DRAFT DEVELOPMENT PLAN - SANCTIONED DEVELOPMENT PLAN - TOWN PLANNING SCHEME - DRAFTMAN'S ERROR - RECTIFICATION OF BOUNDARIES - LOCUS STANDI - PUBLIC INTEREST LITIGATION - MODIFICATION OF DEVELOPMENT PLAN - STRAIGHTENING OF NALLA - VARIATION IN DEVELOPMENT PLAN - TOWN PLANNING SCHEME - ALIGNMENT OF NALLA - BOUNDARIES OF PLOT - HORSE-SHOE SHAPE - RECTIFICATION OF ERROR - PUBLIC NOTICE - MALAFIDES - STRAIGHTENING OF NALLA - VELOCITY OF FLOW OF WATER - FLOODING - NATIONAL GREEN TRIBUNAL - JURISDICTION - ENVIRONMENTAL ISSUE - SLUM ISSUE - CIVIL COURT - MRTP ISSUES - ARBITRATOR'S DECISION - BOMBAY TOWN PLANNING ACT, 1954 - MAHARASHTRA REGIONAL TOWN PLANNING ACT, 1966 - DEVELOPMENT CONTROL AND PROMOTION REGULATIONS, 2017 (DCPR) - UNIFIED DEVELOPMENT CONTROL AND PROMOTION REGULATIONS, 2020 (UDCPR) - NOTE NO.1 OF THE NOTIFICATION OF THE SANCTIONED DEVELOPMENT PLAN OF 2017 - REGULATION 6.5.5 OF DCPR 2017.
Fact of the Case:
Petitioners, a Social Worker and President of Bahujan Ekta Parishad, and a resident of Pune running a printing business, filed a writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari for quashing and setting aside the approval granted by the respondent Corporation for carrying out a change in the alignment of the Ambil Odha (stream) and also approval for carrying out a change in the alignment of the Ambil Odha. The petitioners contended that the Ambil Odha flows through survey no.135, final plot no.28 in a 'C' shape, which is the natural course of the stream, and that the Draft Development Plan showed the course of the Ambil Odha flowing through survey no.135, final plot no.28 as horse-shaped or 'C' shaped and did not indicate any plan to re-align the stream. They further contended that the respondent Corporation sought to make changes in the alignment of Ambil Odha by straightening of its original 'C' shape contrary to the sanctioned Development Plan and without following due process of law and more particularly the provisions of the MRTP Act. The respondents, on the other hand, contended that the straightening of nalla is being done under the impugned order and that even if the impugned orders are set aside, the straightening of nalla will still take place. They also contended that the straightening of nalla is being done while implementing the Town Planning Scheme, which has become final and is binding on all the parties.
Finding of the Court:
The Court held that: * The petitioners have no locus standi to file this writ petition as they have failed to demonstrate any prejudice caused to them or to the members of the public by the decision of the respondent Corporation to correct the draftsman's error by invoking Note no.1. * The straightening of nalla is being done while implementing the Town Planning Scheme, which has become final and is binding on all the parties. * The respondent Corporation has rightly proposed to rectify the draftsman's error by invoking Note no.1 of the notification of the sanctioned Development Plan of 2017 to ensure that the ground elements are represented on the sanctioned Development Plan as they exist as per revenue/land records/sanctioned Town Planning Scheme. These rectifications of the draftsman's error do not amount to modification under section 37 of the MRTP Act. * The proposal of straightening of nalla in the sanctioned plan in the year 1989 and the proposal of Development Plan of 2017 are in consonance with each other and there is no variation in the Development Plan of the year 2017 with respect to the proposal of the sanctioned Town Planning Scheme insofar as straightening of nalla is concerned.
Issues: 1. Whether the petitioners have locus standi to file this writ petition? 2. Whether correction of boundaries as canvassed by the respondents is merely rectification of the boundaries or amounts to removal of parts of the waterbody falling under section 37 of the MRTP Act or not? 3. Whether proposal of straightening of nalla in the sanctioned plan in the year 1989 and the proposal of Development Plan of 2017 are in consonance with each other and there is no variation in the Development Plan of the year 2017 with respect to the proposal of the sanctioned Town Planning Scheme? 4. Whether there was any draftsman's error in the boundaries which could be corrected by applying the directions under Note no.1 to the Development Plan? 5. Whether the provisions of Regulation 6.5.5 of the DCPR 2017 were at all attracted in the facts of this case?
Ratio Decidendi: 1. The petitioners have no locus standi to file this writ petition as they have failed to demonstrate any prejudice caused to them or to the members of the public by the decision of the respondent Corporation to correct the draftsman's error by invoking Note no.1. 2. The straightening of nalla is being done while implementing the Town Planning Scheme, which has become final and is binding on all the parties. 3. The respondent Corporation has rightly proposed to rectify the draftsman's error by invoking Note no.1 of the notification of the sanctioned Development Plan of 2017 to ensure that the ground elements are represented on the sanctioned Development Plan as they exist as per revenue/land records/sanctioned Town Planning Scheme. These rectifications of the draftsman's error do not amount to modification under section 37 of the MRTP Act. 4. The proposal of straightening of nalla in the sanctioned plan in the year 1989 and the proposal of Development Plan of 2017 are in consonance with each other and there is no variation in the Development Plan of the year 2017 with respect to the proposal of the sanctioned Town Planning Scheme insofar as straightening of nalla is concerned.
Final Decision: The writ petition was dismissed.
JUDGMENT
R.D. Dhanuka, J. - By this petition filed under Article 226 of the Constitution of India, the petitioners seek a writ of certiorari for quashing and setting aside the approval granted by the respondent no.1 Corporation dated 5th November, 2020 for carrying out a change in the alignment of the Ambil Odha (stream) and also approval for carrying out a change in the alignment of the Ambil Odha dated 25th August, 2020 granted by the respondent no.2. By consent of parties, the writ petition was heard finally at the admission stage. Some of the relevant facts for the purpose of deciding this petition are as under :-
2. The petitioner no.1 claims to be a Social Worker and the President of Bahujan Ekta Parishad. The petitioner no.2 is the resident of Pune and runs a printing business. It is the case of the petitioners that Ambil Odha originates in the hilly area of Magadewadu and flows in a south to north direction through the city of Pune. Its final outfall is in the river Mutha. The total length of the Ambil Odha is 11.85 kms. According to the petitioners, the said Ambil Odha flows through survey no.135, final plot no.28 in a 'C' shape, or horse-shoe shape, which is the natural course of the stream.
3. On 4th March, 2013, the Pune Municipal Corporation published a Draft Development Plan for the original limit of Pune Municipal Corporation under section 26(1) of the Maharashtra Regional Town Planning Act, 1966 (for short 'the MRTP Act'). It is the case of the petitioners that the Draft Development Plan showed the course of the Ambil Odha flowing through survey no.135, final plot no.28 as horse- shaped or 'C' shaped and did not indicate any plan to re-align the stream. After considering the objections and suggestions received on the Draft Development Plan, the Planning Committee submitted its report to the Planning Authority on 13th February, 2015 in accordance with section 28(2) of the MRTP Act.
4. It is the case of the petitioners that at that stage, no objections were received by the Planning Committee with regard to the alignment of the Ambil Odha. On 5th January, 2017 the State Government accorded sanction to the Development Plan along with the Development Control Regulations of the Pune Municipal Corporation. A notification came to be issued on 5th January, 2017 by which the Urban Development Department of the State Government accorded sanction to the Development Plan. According to the petitioners, the course of the Ambil Odha in the final development remained the same as what was indicated in the draft Development Plan.
5. According to the petitioners, the said notification dated 5th January, 2017 contained a Note stating that the Municipal Commissioner may correct draftsman's errors on the Development Plan in respect of typographical errors in the boundaries of land parcels, errors in showing alignment of existing river canal, lake and like water bodies etc. by taking into account revenue/land records of the concerned Town Planning Scheme.
6. On 6th October, 2017, the respondent no.5 i.e. the Slum Rehabilitation Authority, Pune and Pimpri Chinchwad Area addressed a letter to the Pune Municipal Corporation referring to a representation received from the respondent no.6. The said letter stated that the Development Plan contains drafting errors with respect to, inter-alia the demarcation of the Ambil Odha waterbody.
7. The Slum Rehabilitation Authority requested the respondent no.1 Corporation to shift those demarcations outside of survey no.135, Town Planning Scheme No.3, final plot no.28. It is the case of the petitioners that the survey no.135, final plot no.28 has been transferred to the respondent no.6 who is implementing the slum rehabilitation scheme on the said land.
8. On 14th June, 2019, the respondent no.1 submitted a proposal requesting approval to carry out corrections in the Development Plan of 2017 with respect to survey no.134, final plot no.2B and survey no.135, final plot no.28 and further to correct the nalla a
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