Bombay High Court
Age About 57 Yrs. vs A Corporation Established Under ... on 26 November, 2012
Bench: Mridula Bhatkar
1 SA534.11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.534 OF 2011
WITH
CIVIL APPLICATION NO.1048 OF 2011
PARISAR )
A society registered under the Societies )
Registration Act, 1860, having its office )
At Yamuna ICS Colony, Ganeshkhind Road)
Pune-411 007. ig )
Through its Honorary Secretary )
Shri Sujit Patwardhan )
Age about 57 Yrs., Occ. Business )....Appellant
(Org. Plaintiff)
Versus
PUNE MUNICIPAL CORPORATION )
A Corporation established under The )
Bombay Provincial Municipal Corporations )
Act, 1949, having its office at Shivajinagar, )
Pune-411 005. )....Respondent
(Org.Defendant)
----
Shri Ajit Kulkarni & Hitesh Vyas for the appellant.
Shri Abhijeet P. Kulkarni for the respondent.
----
CORAM: MRS.MRIDULA BHATKAR,J
DATE : 26th NOVEMBER, 2012.
2 SA534.11
JUDGMENT :-
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
3 SA534.11
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 ?
4 SA534.11
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
5 SA534.11
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 the river plants fish and other lives in the river. He relied on the
judgment of the Division Bench of this Court in Writ Petition No.283 of
2005 in the case of Sadanand Varde & Ors. Vs. State of
Maharashtra, through its Secretary Urban Development Ministry &
Ors reported in 2007 (2) ALL.MR 101. Then further he relied on the
judgment in the case of Vijay Krishna Kumbhar Vs. State of
Maharashtra & Ors reported in 2000(2) BOM.C.R 293. In paragraph-
87 of the judgment in Vijay Krishna Kumbhar (supra) the Division
Bench of this Court has dealt with section 37 of the MRTP Act
exhaustively. It is held that a deletion of reservation with regard to a
particular plot of land requires Corporation to follow a procedure
under Section 37 of the MRTP Act. There was deletion and/or
shifting a reservation of a primary school contained in the
development plan of Pune city. Therefore, the Division Bench has
taken a view that action of cancellation or shifting reservation carried
out without compliance of the provision of section 37 of the Act was
wholly illegal. He relied on the judgment of the Division Bench in PIL
No.41 of 2011 in the case of Baner Area Sabha & Anr. Vs. Pune
Municipal Corporation & Anr decided on 26th April, 2012. This was
pertaining to construction of storm water drainage system for Pune.
6 SA534.11
In the said judgment, Division Bench of this Court though has
permitted Corporation to carry out the work for storm water drainage
system, it directed Pune Municipal Corporation to carry out the said
work in conformity with the recommendation of Ministry of
Environment and Forest. The learned Counsel for the appellants also
relied on the judgment in the case of M.C.Mehta Vs.Kamal Nath &
Ors delivered on 12.5.2000. In this matter issue of determination of
quantum of pollution of water due to construction by the Motel in the
river bed and on the banks of river vyas was determined. While
determining that issue, Court made valuable observations in respect
of water pollution. The learned Counsel relied on the judgment in the
case of K.Ramadas Shenoy Vs. The Chief Officers, Town Municipal
Council, Udipi & ors reported in (1974) 2 Supreme Court Cases 506.
The Supreme Court has held that municipal authorities owe a duty
and obligation under the Statute to see that residential area is not
spoilt by un-authorised construction. He also relied on the judgment
in the case of Smt.Fatima Joao Vs. Village Panchayat of Merces and
Anr reported in 2001(1) MH.LJ 836
6 Per contra, the learned Counsel for the Corporation
submitted that suit itself is not maintainable. The prayer of injunction
made in the suit does not survive as the 80% of the road is already
constructed and put in use for vehicular traffic since long. He
7 SA534.11
submitted that no notice was given under Section 487 of the Bombay
Provincial Municipal Corporations Act 1949. The notice cannot be
dispensed with as the authority has acted under the Act and Appeal
court has held that for want of notice the suit is bad. There was no
urgency. He relied on the judgment of the learned single Judge of
this court in the case of Kolhapur Zilla Rajya Abkari Parvana Dharak
Samajik Seva Sangh Vs. Kolhapur Municipal Corporation reported in
2006(2) Mh. L.J. 507 on the point of Section 487 of Bombay
Provincial Municipal Corporations Act 1949. The learned Counsel
submitted that even the objections under Section 91 of the Code of
Civil Procedure though the locus of the appellants is challenged and
that issue is decided against the appellants, respondent-corporation
at this stage does not press it. He further submitted that the
construction of new street was not carried out under Section 37 of
the MRTP Act but the Corporation has carried out construction
invoking Section 205 of the Bombay Provincial Municipal
Corporations Act, 1949 (BPMC Act).
205. Power to make new public streets- The
Commissioner, when authorised by the Corporation
in this behalf, may at any time-
(a) lay out and make a new public street ;
(b) agree with any person for the making of a
8 SA534.11
street for public use through the land of such
person, either entirely at the expense of such
person or partly at the expense of such person and
partly at the expense of the Corporation, and that
such street shall become, on completion, a public
street, which shall vest in the corporation ;
(c) construct bridges and sub-ways
(d) divert or turn an existing public street vested
in the Corporation or a portion thereof."
7 The learned Counsel for the respondents relied on
Bombay Environmental Action Group Vs. State of Maharashtra
reported in 2001(4) Mh.L.J 260 in which the Division Bench of this
Court held that the construction of Andheri Flyover in Andheri was
allowed with some directions to the municipal authority. It was held
that the laws or rules are required to be modified time to time as per
forthcoming new challenges due to scientific and modern
development. Every change cannot be considered as ecological
disaster.
8 The word street as interpreted by the learned Counsel for
the appellant is very narrow. Sub-section 52 of Section 2 reads as
9 SA534.11
follows :-
(52) "public street" means any street-
(a) heretofore levelled, paved, metalled, channelled,
sewered or repaired out of municipal or other public fund, or
(b) which under the provisions of section 224 is declared
to be, or under any other provision of this Act becomes, a
public street.
There is no restrictions on the power of the Corporation
for construction of a new street. It cannot be read as the Corporation
has power only to renew or repair the existing roads. The
submissions of the learned Counsel for the appellant on the point of
Section 22-A of the MRTP Act are not correct and the appeal Court
has considered the said section. Section 22-A is in respect of the
modification of the substantial nature in the final Development Plan
and as per section 22-(b) the word new road is inserted by way of
amendment in final development plan. However, this amendment is
with effect from 5.4.2011 and the suit is filed in the year 2000.
Retrospectively section cannot be attracted. A different name can be
used for a "street". It can be road, an avenue, boulevard. However,
the nature or purpose does not change. He further pointed out that
the learned Counsel for the appellant has wrongly mixed up section
206 along with Section 205 which speaks about the width of the road.
10 SA534.11
However, length of the road decides width of the road. Section 206
is not applicable. The length of the present road is 1.07 square
meters and width is 80 feet. He relied on the judgment in the case of
Kolhapur Zilla Rajya Abkari Parvana Samajik Seva Sangh Vs.
Kolhapur Municipal Corporation reported in 2006 (2) Mh.L.J 507. He
submitted that for the purpose of modification and the steps under
Section 37 if at all the user is changed then it is necessary to take
steps. However, there is no user in respect of the said impugned
land. He further submitted that the Corporation has taken due care
before constructing the road. The road is not in the river bed as
averred but it is on the bank of the river. He drew attention to the
admissions given by plaintiff nos.1 & 2 which are dealt with by the
appeal court in paragraph-22 of the judgment. He submitted that in
the case of Bombay Environmental Action Group Vs. State of
Maharashtra reported in 2001 (4) Mh.L.J 260 the construction of
bridges is not considered as a substantial modification under Section
37 of the MRTP Act. While deleting the road on the other side of the
bank of the river which was earlier shown in Final Development Plan,
Corporation took steps contemplated under Section 37 of the MRTP
Act. However, it is not necessary for the Corporation to take steps
under Section 37 of the MRTP Act while constructing a new road.
He further argued that Corporation took care of calling reports from
various authorities that there should not be any breach of
11 SA534.11
environmental rules and regulations. He pointed out that in the year
1956 the first development plan of Pune city came in to existence.
Thereafter in 1987 2nd Final Development Plan was prepared. In
2007 thereafter 3rd final development plan was prepared. In that
final development plan, existing roads and the reservation along with
the proposed development are required to be shown. He drew
attention to the Resolution of the General Body of the Corporation in
respect of the construction of the suit road. The permission of the
Collector, Government was taken as the land of the river was owned
by the Government. Necessary permissions of the different
authorities were also obtained before constructing road. The
Corporation gave sanction on 21.1.2000 to construct the road. The
work commenced on 1.2.2000 and 80% of the work was completed
on 27.4.2000 and suit was filed on 24.4.2000.
10 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 ?
12 SA534.11
11 Undisputedly the Corporation has to meet the needs of the
people to provide necessary amenities. The suit is based on the age
old conflict between the process of Urban Development & Township
Vs. Preservation of Environment and Nature. Growing population
demands more and more facilities of transportation and therefore, the
burden on the local bodies increases on large scale. Population gets
crowded in some cities in certain localities and so the pressure on
the civic bodies to provide civic amenities rises very high.
Transportation and communication are the key issues which are
required to be dealt with by the Government and the authorities.
Therefore, construction of the new roads is always for the public
purpose which is very much real and not illusory need. Section 205
of the BPMC Act provides power to the Corporation to make new
public streets. The submissions of the learned Counsel that public
street is defined in Sub-section 52 of Section 2 and it does not
contemplate construction of a new public street but it is only
restricted to the repairing, levelling, paving, channeling of the streets
which are already in existence and therefore, the Corporation has no
power to construct a new road under Section 205, are totally un-
foundable are not acceptable. Sub section 52 of Section 2 of the
BPMC Act of 1949 defines public street as follows :-
"(52) public street means any street-
13 SA534.11
(a) heretofore levelled, paved, matalled,
channelled, sewered or repaired out of municipal
or other public fund, or
(b) which under the provisions of section 224 is
declared to be, or under any other provision of
this Act becomes, a public street; "
12 This definition includes any street which is levelled, paved
metalled, channelled, sewered or repaired out of municipal or other
public fund. In Sub-section 52-(b) of Section 2, it is mentioned that
the streets under the provisions of 224 also become public streets.
Section 224 is a power of the Corporation to declare a private street
when sewered as a public street. So this definition states that if the
streets in the private societies are repaired or sewered out of
municipal or other public funds, they are also public streets. The
definition of street under Sub-section 52 of Section 2 is not a
restrictive definition but it is an inclusive. The roads which are in
existence but are repaired, channelled or sewered out of municipal or
public funds so also the roads which are private roads of the
societies which are sewered by public funds are considered as
public streets. This definition cannot be stretched to restrict the
powers of the Corporation which flow from Section 205. Chapter-
XIV of BPMC Act is in respect of streets. The chapter is
14 SA534.11
captioned..................the word "construction" is absent in the
definition clause of sub-section 52 of Section 2 of the Public Street.
Therefore, restrictive interpretation of Sub-section 52 of Section 2 is
not in consonance with the scope of the chapter-XIV of the Act.
Therefore, taking help of Section 52(2) of the Act while interpreting
Section 205 is erroneous. Section 202 to Section 216 in chapter
XIV of the Act are on the aspects of construction, maintenance and
improvement of the streets. Section 205 is specifically about the
power of the Corporation to make new public streets. These words
are to be read as per their literal meaning. Thus by applying a
Golden rule of interpretation the section is to be understood. The
meaning of the words conveyed in ordinary sense is to be construed.
Thus, the Corporation gets the power under sub-section (a) of
Section 205 of the BPMC Act. This power is an independent one
that Corporation enjoys
13 The argument is made that 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 of the MRTP Act reads as under :-
37 [Modification] of final Development Plan
(1) Where a modification of any part of or any proposal
15 SA534.11
made in a final Development Plan is of such a nature that it
will not change the character of such Development Plan,
the Planning Authority may, or when so directed by the
State Government [shall, within ninety days from the date
of such direction, publish a notice] in the Official Gazette
[ and in such other manner as may be determined by it]
inviting objections and suggestions from any person with
respect to the proposed modification not later than one
month from the date of such notice; and shall also serve
notice on all persons affected by the proposed modification
and after giving a hearing to any such persons, submit the
proposed modification (with amendments, if any) to the
State Government for sanction."
14 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 learned Counsel for the
16 SA534.11
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. The learned Counsel
for the appellants has relied on the judgment of the Division Bench in
the case of Sadanand Varde & Ors. Vs. State of Maharashtra
reported in 2007(2) ALL MR 101, wherein Division Bench of this
court has held that additions and subtractions lead modifications.
Section 31 of the MRTP Act pertains to sanction of the draft
Development plan and it states that if there are such modifications
then they are to be published in the official Gazette. By way of
amendment, section 22-A was substituted in the Act with effect from
5.4.2011. Section 22-A explains what is meant by modification of a
"substantial nature". Section 22-A (b) of MRTP Act reads as
follows :-
"(b) insertions of a new road or a new reservation or
modification of a reserved site or a proposed road
widening resulting in inclusion of any additional land not so
affected previously."
15 Thus, by section 22A insertion of new road is considered
17 SA534.11
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 22A
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.
16 MRTP Act is enacted for the purpose of proper township
and so the development plan is prepared to give the exact idea to the
citizens and the people in that locality that how the Corporation is
going to develop the city and what are the proposed constructions
and reservations in the area. The act aims at the control and
systematic growth of the settlement. Thus, the object of publishing
final Development Plan is to make the development policy
transparent, known to the public so the persons who have any
suggestion or objection can come forward. The purpose of the plan
is mainly that the persons who are going to affect due to the
development and township should get the notice of such
18 SA534.11
development. If there are certain reservations to provide clean and
beautiful settlement to the people then it should be known to the
people. Thus for the new settlement, appropriate authority has to
acquire the land of the people so the authority has to follow the
procedure laid down under the MRTP Act and so also State has to
adopt a procedure laid down under the Land Acquisition Act.
Acquisition of the land for the public purpose is a necessary evil,
hence allowed under the Act. If for the purpose of construction of
road, or road widening if such acquisition is required then under
Section 37 it is necessary for the planning authority to invite the
objections and suggestions from any persons in respect of proposed
modification and shall also serve notice on all the persons affected
by the proposed modification and after giving hearing to such
persons, the planning authority to submit proposed modification to
the State Government for sanction. Thus section 37 states two
things that the planning authority within 90 days from the date of
direction given by the State Government, shall invite objections and
suggestions from the person with respect of the proposed
modification; within one month from the date of the notice; Secondly
it shall also serve the notice on all persons affected by the proposed
modification and planning authority to give hearing to such persons
and submit proposed modification to the State Government. Thus
calling suggestions from any person is one aspect and it is
19 SA534.11
mandatory on the planning authority to give notice to the affected
persons. The word "affected persons" contemplates that the persons
who are directly affected due to the acquisition, reservation,
construction or widening etc. In the present case the suit road is
constructed on the bank of the river. The suit road is not in the river
bed because suit road is on the bank of the river. No land is required
to be acquired from any person. Thus there is no affected person
contemplated under Section 37 of the Act and therefore, no notice
was required.
The submissions of the learned Counsel for the
appellants that the people at large are directly affected as the river is
not protected and ecological balance of the city is spoiled and so the
notice was required do not hold any substance. Assuming that every
citizen in the city of Pune has interest in the river and river bank
being a public place, considering the object and spirit of Section 37
of the MRTP Act, they cannot be treated as an affected persons to
whom to give notice is a mandate under the Act. The word "affected"
in the section contemplates a special, personal or specific damage or
loss hence it is not necessary for the planning authority to give a
notice or even to give a public notice under Section 37. The Planning
Authority may invite suggestions in respect of the proposed
development. It appears from the submissions of the learned
Counsel for the Corporation that the construction of the proposed
parallel road which was shown in the development Plan much earlier
20 SA534.11
but it could not be materialized as the proposed road was running
through the city and in the process of acquisition of the land many
citizens were going to be affected so it could not be materialized.
Therefore, the planning authority decided to construct the road on
the bank of the river on the other side of the river but authority shifted
it and constructed on the opposite side of the river which did not
require acquisition of any land and so the construction of the road
was completed within a short span of 2 to 3 months.
17 Needless to say that the cause of the appellants to
preserve the natural resources in the city and improve quality of
township by maintaining ecological balance is laudable. It is true
that peoples' participation in the township is necessary. However, the
objection raised by the appellant cannot sustain legally. The
Bombay Provincial Municipal Corporation Act 1949 has provided a
particular procedure under Section 205 of the Act which is to be
followed by the planning authority when new road is constructed and
record shows that the necessary permission from the competent
authority or Government were obtained by the Corporation. I am
informed that road is already put in the use for vehicular traffic. The
learned Counsel for the appellants pointed out that as per the
condition imposed by the State Government the road is required to
be used only for the two wheelers but the four-wheelers are allowed
21 SA534.11
on the street. However, it is not the issue before the Court as it is
entirely within the authority of traffic department so also it is a matter
of self discipline and awareness of the public at large towards the
preservation of natural sources and maintenance of the ecological
balance in their city.
Hence, appeal is dismissed.
18 In view of dismissal of the appeal, Civil Application also
disposed of.
(JUDGE)
19 Learned Counsel for the appellant prays for stay of the
order for eight weeks. In view of the finding given and as a road is
already put in use since last about 10 years, no stay is granted.
However, in respect of the portion of the impugned road which has
remained to be constructed, Corporation to maintain status-quo for a
period of eight weeks.
(JUDGE)
22 SA534.11
