Back
2023 Supreme(Bom) 1488
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
DEVENDRA KUMAR UPADHYAYA, ARIF S. DOCTOR, JJ.
Sandeep Thakur – Petitioner
Versus
The State of Maharashtra – Respondent
Public Interest Litigation No. 123 of 2016, Interim Application Nos. 14928, 14929, 15735 of 2023
Decided On : 22-12-2023
Advocate Appeared:
For the Petitioner: Sandeep Thakur.
For the Respondents: Tejesh Dande, Bharat Gadhavi, Vishal Navale, Trusha Shah, Vikrant Khare, Pratik Sabrad, B.B. Sharma, M.M. Pabale, Sugandh Deshmukh, Saket Mone, Devansh Shah.
Headnote:
PIL - Parking Spaces - Maharashtra Regional and Town Planning Act, 1966 (MRTP Act) - [37(1-AA), 20(4)] - The court addressed the concerns about parking spaces as laid down in the Unified Development Control and Promotion Regulations (UDCPR) and the application in the territories over which Navi Mumbai Municipal Corporation (NMMC) exercises its jurisdiction. The challenge was primarily on the ground that the regulations were arbitrary and attempted to nullify and subvert the court's interim order. The court considered the history of litigation and the repeated challenges made by the petitioner to the parking regulations, and issued directions for a fresh look at the need for better and adequate parking spaces within the territory of NMMC, and for appropriate amendments to the UDCPR.
Fact of the Case:
The petitioner filed a Public Interest Litigation (PIL) expressing concerns about the parking spaces as laid down in the Unified Development Control and Promotion Regulations (UDCPR) and its application in the territories over which Navi Mumbai Municipal Corporation (NMMC) exercises its jurisdiction. The challenge was primarily on the ground that the regulations were arbitrary and attempted to nullify and subvert the court's interim order.
Finding of the Court:
The court addressed the concerns about parking spaces, considered the history of litigation and the repeated challenges made by the petitioner to the parking regulations, and issued directions for a fresh look at the need for better and adequate parking spaces within the territory of NMMC, and for appropriate amendments to the UDCPR.
Issues: The primary issue was the arbitrary nature of the regulations and their attempt to nullify and subvert the court's interim order. The court also considered the need for better and adequate parking spaces within the territory of NMMC.
Ratio Decidendi: The court's decision was influenced by the repeated challenges made by the petitioner to the parking regulations, the recognition of the need for better parking spaces, and the failure of the State Government and NMMC to address the concerns despite assurances and court directions.
Final Decision: The court issued directions for a fresh look at the need for better and adequate parking spaces within the territory of NMMC, and for appropriate amendments to the UDCPR. The entire exercise was to be completed within 12 months from the date of the court's order.
JUDGMENT :
DEVENDRA KUMAR UPADHYAYA, J.
1. Heard the Petitioner in-person and the learned Counsel representing the Respondents.
2. This Public Interest Litigation (PIL) Petition has been filed expressing concerns about the parking spaces as laid down in the Unified Development Control and Promotion Regulations (hereinafter referred to as “UDCPR”) promulgated by the State Government vide notification dated 02/12/2020 so far as it relates to its application in the territories over which Navi Mumbai Municipal Corporation (hereinafter referred to as “NMMC”) exercises its jurisdiction.
3. The challenge to the impugned provisions of UDCPR is primarily on the ground that the same is absolutely arbitrary in as much as it attempts to nullify and subvert the Interim order dated 05/10/2016 passed by this Court in this PIL Petition.
4. It has also been argued by the Petitioner that NMMC vide its Affidavit dated 22/09/2016 filed in this Petition had assured the Court that it is willing to further increase the parking requirements by modifying the existing regulations relating to parking norms after the approval of the State Government, however, the said assurance has been given a go-by while promulgating the impugned UDCPR.
5. It has been further argued that by not accepting the recommendations made by the designated officer while finalizing the impugned provisions of UDCPR, the State Government has acted arbitrarily, which renders the impugned provisions of the said regulations null and void.
6. Opposing the PIL Petition, learned Counsel representing the Respondents have submitted that the impugned provisions of UDCPR are a piece of subordinate legislation and unless the said provisions are shown to be manifestly arbitrary or against any provisions of the Constitution or any other law including Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as “MRTP Act”) same cannot be struck down by this Court for the reason that the scope of judicial review or judicial scrutiny of such subordinate legislation is limited.
7. The submission further is that in a challenge to subordinate legislation, presumption of its constitutionality has to be borne in mind and burden to establish the subordinate legislation being violative of any law lies heavily on the person intending to challenge the same. It is argued further by the Respondents that from the material available on record no inference can be drawn that the impugned provisions of UDCPR suffer from any illegality or procedural lapse or any other legal lacuna so as to render them null and void and hence, in this view of the matter, the PIL Petition is liable to be dismissed.
8. We have given our thoughtful consideration to the competing submissions made by learned Counsel representing the respective parties and have also perused the records available before us on this PIL Petition. For reflecting appropriately on the dispute and the issues raised in this PIL Petition, we need to note certain facts, which are relevant for the purposes of deciding the issues appropriately.
9. Prior to 07/09/1994, the Respondent No. 3-City and Industrial Development Corporation of Maharashtra (CIDCO) was the Planning Authority for all the nodes in Navi Mumbai. However, on 07/09/1994, the NMMC was appointed as Planning Authority for the development nodes of Navi Mumbai comprising of Vashi, Koparkhairane, Sanpada, Nerul, CBD-Belapur, Airoli etc. by the State Government.
10. The Development Control Regulations (hereinafter referred to as “DCRs”) were framed by the CIDCO for the entire area of Navi Mumbai, which included the area presently under the jurisdiction of NMMC and the said DCRs were adopted and applied by NMMC as a well. However, in the year 2005 NMMC decided to frame its own DCRs and notification was published by the State Government on 12/12/2007 and 21/07/2008 sanctioning the said regulations with certain modifications.
11. The Petitioner filed PIL Petition viz. PIL No. 110 of 2009 with a prayer for
