Bombay High Court
Kishor Manohar Kamble And Anr vs Pune Municpal Corporation Thr. ... on 13 September, 2022
Bench: R.D. Dhanuka, M. G. Sewlikar
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vai
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Digitally signed by
VASANT VASANT
ANANDRAO ANANDRAO IDHOL
IDHOL Date: 2022.09.13
11:47:56 +0530 WRIT PETITION NO.7354 OF 2021
1. Kishor Manohar Kamble, Aged about 37
years, Currently residing at Survey No.131/1,
Panmala Singhar Road, Pune - 411 030.
2. Meghraj Uttam Nimbalkar, Currently residing
at Survey No.133/B, Final Plot No.587/3, Flat
No.801/A, E Wing, Laxminarayan Towers. ...Petitioners
...Versus......
1. Pune Municipal Corporation, Through its
Commissioner, Office of the Municipal
Commissioner, 4th Floor, PMC Bhavan, Main
Building, Shivaji Nagar, Pune - 411 005.
2. Deputy Commissioner (Vigilance),
Office of the Municipal Commissioner,
4th Floor, PMC Bhavan, Main Building,
Shiva Nagar, Pune 411 005.
3. State of Maharashtra through the
Urban Development Department,
Mantralaya Building, 4th Floor, Madam
Kama Road, Mantralaya, Mumbai - 400 032.
4. Director of Town Planning,
Maharashtra State,
Pune Central Offices, Old Building,
Pune - 411 001.
5. Slum Rehabilitation Authority,
Pune and Pimpri Chinchwad Area,
Muttha Chambers, Senapati Bapat Road,
Pune - 411 016.
6. Naiknavare Developers,
1204/4, Ghlore Road, Shivaji Nagar, ... Respondents
Pune 411 004.
1
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Ms.Gayatri Singh with Ms.Veda Thakkar, i/b. Ms.Meenaz Kakalia for
the Petitioners.
Mr.A.A. Kumbhakoni, Advocate General with Mr.P.P. Kakade,
Government Pleader, Mr.A.I. Patel, Additional Government Pleader
and Mrs.M.S. Bane, A.G.P. for the - State Respondent.
Mr.Vishwanath Patil with Mr.Kewal Ahya and Mr.Ankit Lodha for the
Respondent Nos.1 and 2.
Mr.Deepak R. More with Mr.S.A. Gawade for the Respondent No.5.
Mr.Jaydeep Deo with Mr.Onkar Gawade for the Respondent No.6.
CORAM : R.D. DHANUKA &
M.G. SEWLIKAR, JJ.
DATE OF RESERVE : 21ST JULY, 2022.
DATE OF PRONOUNCEMENT : 13TH SEPTEMBER, 2022.
ORAL JUDGMENT (Per R.D. Dhanuka, J.) :-
1. 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 25 th 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
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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.
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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 5 th
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
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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 alignment. The
respondent no.1 also sought permission for tearing down the existing
nalla retaining the wall and for construction of new retaining wall.
9. On 21st November, 2019, the respondent no.6 addressed a
letter to the Chief Executive Officer of SRA and requested that the
issue with regard to the change of alignment of nalla in the
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Development Plan be pursued so that the land could be utilized for
the slum rehabilitation scheme.
10. On 3rd December, 2019, the Standing Committee of the
respondent no.1 Corporation passed a resolution recommending
transfer of 2789 sq.mtrs. of land owned by the respondent no.1
Corporation at the Town Planning Scheme No.3, final plot no.28 for
the slum rehabilitation scheme proposed to be implemented by the
respondent no.6 developers.
11. On 27th January, 2020, the Deputy Commissioner, Vigilance
(Respondent No.2) addressed a letter to the respondent no.1 stating
that it would be essential to obtain the opinion of the Director, Town
Planning as per Regulation 6.5.5 of Development Control &
Promotions Regulation, 2034 (for short "DCPR") with respect to the
proposed change in alignment of the nalla.
12. On 25th August, 2020, the respondent no.2 addressed a letter
to the respondent no.1 and sought permission to correct the
alignment of nalla in terms of the Town Planning Scheme. On 5 th
November, 2020, the respondent no.1 Corporation endorsed a letter
dated 25th August, 2020 and accorded sanction for change in the
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nalla alignment.
13. The petitioners sought details about the permissions that have
been received for carrying out change in the alignment of Ambil
Odha. In response to the said application made under the provisions
of Right to Information Act by the petitioners, on 3 rd September, 2021
issued by the respondent no.1 Corporation, it was alleged that the
final permission for carrying out changes in the alignment of the nalla
had been granted.
14. On 18th March, 2021, the Deputy Engineer of the respondent
no.1 addressed a letter to the Executive Engineer of the Sewerage
Maintenance and Repairs Department requesting him to commence
repairs on the Ambil Odha in terms of the permission granted by the
respondent no.1.
15. Some time in the month of September, 2021, the work of
straightening of nalla commenced on 3rd December, 2021. Unified
Development Control & Promotion Regulations, 2020 (for short
"UDCPR") framed by the State Government comes into force.
Regulation 1.2 of the said UDCPR provided that all other
Development Control Regulations that were in operation ceased to
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operate. According to the petitioners until such time, DCPR, 2017 for
Pune city was in force, under which the opinion of the Director, Town
Planning had to be sought before correcting any alleged error in the
Development Plan. On 12th October, 2021, this petition is filed.
16. On 23rd December, 2021, the UDD Department clarified that
where the sanctioned Development Plans contain a note regarding
drafting errors which can be corrected by the concerned Chief Officer
of the planning authority with prior approval of the Director of
Planning, such provision will not stand repealed under Regulation 1.2
of the UDCPR. This matter appeared on board on 10 th December,
2021 when this Court directed the office to issue notice to the
respondent no.6, returnable on 20th December, 2021 and directed the
parties to file affidavit in reply.
17. On 23rd December, 2021, this Court passed an order adjourning
the matter to 10th January, 2022 and directed status-quo as on the
date of the said order in respect of straightening the alignment of the
stream to be maintained until the next date. By an order dated 11th
January, 2022, this Court adjourned the matter on 9 th February, 2022
with a direction to place the said matter for directions and continued
ad-interim order till then. The writ petition was adjourned from time to
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time on one or other ground. Ad-interim relief granted by this Court
came to be continued. On 26th April, 2022, this Court directed the
respondent no.4 to file affidavit in reply and deal with the writ petition
parawise and clarify the position whether in the Draft Development
Plan of 2013 and Sanctioned Development Plan of 2017 of Pune city,
the Ambil Odha stream (nalla) flowing through a portion of survey
no.135, final plot no.28, is shown as "straight" or "curved".
18. This Court further directed that the affidavit in reply shall
indicate whether there is any draftsman's error in the Development
Plans as contended by the respondent no.1 Corporation. This Court
requested the learned Advocate General to appear in the matter
having regard to controversy and public interest involved. On 6th May,
2022,this Court after considering the affidavit in reply filed by the
Director of Town Planning and valuation Department refused to
continue the ad-interim order passed by this Court earlier and
vacated the said ad-interim order.
19. Being aggrieved by the said order dated 6th May, 2022 passed
by this Court, the petitioners preferred Special Leave Petition
No.10339 of 2022. By an order dated 2nd June, 2022, Supreme Court
directed to issue notice upon the parties, returnable on 4th August,
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2022 and directed that staus-quo in the meantime which was
operating before passing of the order dated 6th May, 2022 to continue.
Supreme Court directed this Court to decide this writ petition on its
own merits either on the dates fixed for listing i.e. 23 rd June, 2022 or
any subsequent date expeditiously. In pursuance of the order passed
by the Supreme Court, the matter was heard finally.
20. Ms.Gayatri Singh, learned senior counsel for the petitioners
invited our attention to various exhibits annexed to the writ petition,
affidavit in reply and various documents tendered across the bar. It is
submitted that the respondent no.1 has 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
MRTP Act. She submitted that the entire action on the part of the
respondent no.1 to straighten the nalla is with a view to make more
land available for development of survey no.135, final plot no.28 for
the benefit of the respondent no.6 and at their request.
21. It is submitted that the respondent no.6 is implementing the
SRA scheme on final plot no.2-B and part of plot no.28. Plot no.28
only on which horse-shoe waterbody is situated, covers area of
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24544.23 sq. mtrs. belonging to the respondent no.1. Out of the said
area of 24544.23 sq. mtrs., 2789.73 sq. mtrs. is to be developed by
the respondent no.6. She relied upon the letter dated 27th January,
2020 issued by the Vigilance Department and also upon proposal
letter dated 25th August, 2020. She submitted that the original width of
the canal is 15 sq.mtrs. The remaining part of the waterbody in plot
no.28 is to be developed by another builder Kedar Associates,
22. Learned senior counsel for the petitioners submits that the plan
of straightening the alignment of the Ambil Odha is not reflected in
the sanctioned Development Plan of 2017 currently in operation. She
submitted that the respondent no.1 did not follow any procedure as
set out under section 22-A or section 37 of the MRTP Act, which
includes publishing the draft maps for objections and suggestions,
required to be followed for seeking any modification to be effected in
the final Development Plan. The draft maps were not published for
inviting objections and suggestions by the respondent no.1. She also
relied upon section 37,(1AA) and (1B) in the case of SRA schemes.
23. It is submitted by the learned senior counsel that the maps
relied upon by the parties would clearly indicate that the area covered
by the "C" shape waterbody is to be deleted, straightened and shifted
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and the said area will be converted for residential purposes. She
submitted that straightening of Ambil Odha stream is being done
simultaneously with the alteration in the boundaries of the plots.
24. It is submitted that any change in the gradient of the waterbody
will result in an increase in the velocity of the water and may result in
flooding downstream which is a densely populated area, where the
petitioner no.2 resides. She submitted that under section 22(j) of the
MRTP Act, a Development Plan is to provide for measurements of
flood control. The canal running through final plot no.28 in a "C"
shape form cannot be shifted from its natural alignment by
straightening it. Learned senior counsel relied upon DPT prepared by
the Consultant appointed by the respondent no.1 and submitted that
even the said DPT recommended that the natural course on Ambil
Odha should not be diverted. It suggested long-term measures in the
said DPT 3 to "avoid diverting natural nallas / streams and to keep
nalla bed natural in order to percolate water".
25. It is submitted by the learned senior counsel that in the year
1975, a proposal to straighten the nalla was approved by the
Arbitrator appointed under section 72 of the MRTP Act. The plan was
not only reflected in the Development Plan prepared in the year 1987
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but also in the Town Planning Scheme that came into force on 15 th
September, 1989.
26. Learned senior counsel for the petitioners submitted that in a
fresh Development Plan proposed in the year 2013 which came to be
published on 28th March, 2013, plan to straighten the alignment of the
Ambil Odha was not indicated. The existing natural alignment of the
Ambil Odha was indicated in a "C" shape. The position of the Ambil
Odha remained unchanged in the Final Development Plan that was
published in the year 2017. It is submitted that the legend of the
Development Plan of 2017 clearly indicated that the straight Grey
line shown below plot no.28 is the High-Capacity Mass Transit Route
or (HCMTR) and does not indicate the proposed straightening of the
nalla as canvassed by the respondents in the affidavit in reply.
27. Learned senior counsel invited our attention to the avements
made in the affidavit in reply filed by the respondent no.1 and the
respondent no.4 and submitted that the words "nalla" appears to be
on the right of the final plot no.28 and not directly below it, with no
blue legend outlining the waterbody. The respondents have admitted
that there is no blue line running along the HCMTR, what is indicated
below plot no.28 is simply a Grey straight line which according to the
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legend of the DP map, is the HCMTR.
28. It is submitted that if the contention of the respondents raised
in the reply that the stream is actually present beneath the HCMTR
and that it cannot be seen because it is a 2 D photo is accepted,
there ought to have been a blue line on either side of the HCMTR.
The boundary between 2B and 585 alone is not being altered but part
of the stream is also sought to be shifted. She submitted that this is
not the case of mere modification of the alignment of the boundary
but an alteration in the natural stream. The blue color portion in the
final plot no.585 is sought to be deleted. The boundary of final plot
no.585 is clearly visible along the HCMTR in the sanctioned
Development Plan. She submitted that the "C" shaped waterbody is
shown both on the draft Development Plan and final Development
Plan. This position is admitted by the respondent no.4 in its affidavit
in reply.
29. It is submitted that the plan to straighten the portion of Ambil
Odha flowing through survey no.135, final plot no.28 as indicated in
the Development Plan of 1987 and the Town Planning Scheme of
1989 was abandoned as no such plan was indicated in either the
Draft Development Plan published in 2013 nor the Final Development
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Plan of 2017. Straightening of the waterbody continued to be shown
in the draft Development map, it was not possible for the citizens to
raise any objections to this proposal. The citizens including the
petitioners were deprived of their statutory right to raise any
objections in accordance with the provisions of the MRTP Act, 1966.
30. It is submitted that the said 2017 Development Plan
superseded the Development Plan prepared in 1987 and any
development work that is to be carried out must be in accordance
with the Development Plan of 2017 and not the Development Plan of
1987. She submitted that it is clear from the averments made by the
respondents in their reply that all changes are being undertaken after
2017 Development Plan was sanctioned.
31. It is submitted by the learned senior counsel that the
Development Plan of 2017 does not reflect any plan to straighten the
alignment of the Ambil Odha. In support of this submission, learned
senior counsel invited our attention to the letters addressed by the
respondent no.5, the respondent no.6 requesting the respondent
no.1 to make suitable changes to the alignment of Ambil Odha in
2017 Development Plan so that the land would become available for
the proposed SRA scheme being developed by the respondent no.6.
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The correspondence was in respect of both the final plots i.e. no.2B
and 585 as well as final plot nos.2B and 28. Learned senior counsel
also placed reliance on the letter dated 6th October, 2017 from the
Slum Rehabilitation Authority and the Developer annexed at page
no.59 of the writ petition and submitted that the Development Plan
admittedly was at variance with the Town Planning Scheme and the
nalla needs to be straightened.
32. Learned senior counsel placed reliance on the proposal by the
City Engineer on 14th June, 2019 and would submit that even the said
proposal clearly stated that the respondent no.6 Developer was not
able to do any further work because of waterbody and that the nalla
needs to be corrected. In support of this submission, she also relied
upon a letter dated 25th August, 2020 issued by the Deputy
Commissioner (Vigilance) annexed at Exhibit "G" at page 67 of the
writ petition suggesting to correct the errors in the Development Plan
of 2017 with respect to the alignment of the Ambil Odha.
33. Learned senior counsel also placed reliance on the letters
dated 15th April, 2017 from the respondent no.6 Developer to the
Joint Director, Town Planning requesting for rectification in the shape
of the waterbody as shown in the Development Plan of 2017. She
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also placed reliance on the letter dated 5th June, 2020 from the Slum
Rehabilitation Authority to the respondent no.1 requesting that the
canal alignment in final plot no.28 should be straightened and the
horse-shoe or "C" should be removed.
34. It is submitted that the corrections of boundaries as canvassed
by the respondents are not merely rectification of the boundaries but
amounts to removal of parts of the waterbody which is not
permissible unless requisite procedure required for modification of the
Development Plan is followed. She submits that it is clear from the
Development Plan map that the respondent no.6 Developer is
seeking extra land from the waterbody. She submitted that the
documents produced by the parties would clearly indicate that both
the issues i.e. changing boundary alignment and the straightening of
nalla are interlinked. In support of this submission, she also placed
reliance on the letter of the Vigilance Department dated 27th January,
2020 annexed at Exhibit "G" to the petition and submitted that there
has been no response to the said letter of the Vigilance Department
by the respondent no.1.
35. It is submitted that the stand taken by the respondent no.1 that
the Ambil Odha flowing from survey no.135, final plot no.28 is shown
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as straight from its "former `C' shape" in both the Draft Development
Plan dated 28th March, 2013 and the final Development Plan dated 5th
January, 2017 is contrary to the stand taken by the Director of Town
Planning Department in its additional affidavit dated 2 nd May, 2022. It
is submitted that the stand now taken by the respondent no.1 that the
proposed straightening of the alignment of Ambil Odha is reflected
in the sanctioned plan of 2017 and that the work is being carried out
in accordance with the said Development Plan is an after-thought.
36. It is submitted that the stand now taken by the respondent no.1
is contrary to the correspondence exchanged between the
respondents which clearly reflected that the natural "C" shape or
"horse-shoe" of the Ambil Odha was sought to be re-aligned to
bring in conformity with the Town Planning Scheme of 1989. It is
submitted that the office of the City Engineer for the Commissioner
while seeking approval on the basis of the proposal submitted by the
respondent nos.5 and 6 was that the corrections be carried out, inter-
alia in survey no.135, final plot no.28 as per the Town Planning
Scheme.
37. Learned senior counsel relied upon the averments made by the
respondent no.1 in its affidavit stating that vide order dated 5 th
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November, 2020, directions were given for carrying out construction
as per the decision in the Town Planning Scheme of 1989. She also
relied upon a letter dated 5th June, 2020 from the Chief Executive
Officer, SRA of the respondent no.1 requesting to straighten the
alignment of the stream according to the Town Planning Scheme,
1989. She submitted that the respondent no.6 in its affidavit has
taken an erroneous stand that the Town Planning Scheme prevails
over the Development Plan.
38. It is submitted by the learned senior counsel that it is not the
case of the respondents in their correspondence that the
straightening of the Ambil Odha was being carried out in accordance
with the Development Plan of 2017. On the contrary, the respondent
nos.5 and 6 sought changes in the Development Plan to bring out in
conformity with the Town Planning Scheme of 1989. She submits that
the Town Planning Scheme cannot override the provisions of the
sanctioned Development Plan. The Town Planning Scheme is
devised to effectuate the provisions of a Development Plan. The
Town Planning Scheme of 1989 was prepared under the 1987
Development Plan. A new Development Plan being the Development
Plan of 2017 has been published.
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39. It is submitted that while the Development Plan of 1987
included a proposal to straighten the Ambil Odha which was
consequently reflected in the Town Planning Scheme of 1989, the
Development Plan of 2017 does not reflect any plan to straighten the
course of the Ambil Odha and both the draft Development Plan of
2013 and final Development Plan of 2017 show nalla alignment as
"C" shaped. She submits that since there is conflict between the
provisions of the Development Plan and the Town Planning Scheme,
the Development Plan would prevail over the Town Planning
Scheme.
40. It is submitted that since the Ambil Odha flows through final
plot no.28 which is sought to be developed by the respondent no.6
under the SRA scheme, the respondents sought change in the
Development Plan to straighten the course of the Ambil Odha in a
manner that would ensure that it falls outside the boundaries of the
property sought to be developed by the respondent no.6 and to make
more land available at the final plot no.28 in alleged compliance of
1989 Town Planning Scheme.
41. Learned senior counsel invited our attention to the impugned
proposal dated 25th August, 2020 and the order dated 5th November,
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2020 passed by the Commissioner of the respondent no.1 along with
rectification of the errors in alignment of the boundaries. She also
relied upon the public notice dated 26 th March, 2021 published in
"Sakal" newspaper and submitted that the said public notice also
clearly indicated that the straightening of the waterbody was being
carried out pursuant to the permission granted by the Commissioner
dated 5th November, 2020. The public notice stated that there was
discrepancy in the nalla route as shown in the Development Plan and
the Town Planning Scheme and stated that the Commissioner has by
an order dated 5th November, 2020 had granted approval to rectify
this discrepancy.
42. It is vehemently urged by the learned senior counsel that the
respondent no.1 has circumvented the provisions of the MRTP Act
dealing with modifications of the sanctioned Development Plan by
characterizing it as a "draftsman's errors". No notice inviting
objections and suggestions to the proposed change was published by
the respondent no.1. No notice on the persons affected by the
proposed modification for hearing was issued by the planning
authority in this case. The procedure prescribed under section 37(1)
and 37(1B) of the MRTP Act has not been followed. The planning
authority is required to submit a proposed modification to the State
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Government for sanction.
43. It is submitted that the respondent no.1 has voluntarily made
the modification in the Development Plan characterizing it as
"draftsman's errors" in order to bring it within the scope of the Note
contained in the notification dated 5th January, 2017. She submits
that the respondents could not have relied upon the said Note
containing any notification dated 5th January, 2017. She submits that
in any event the respondent no.1 has not annexed any document to
show the procedure under the Note was followed or explaining the
alleged error. The affidavit of the respondent no.4 merely admitted
that there was a "draftsman's error" and that the Note in the
notification dated 5th January, 2017 was applied . No speaking order
is passed by the Commissioner. The provisions of Regulation 6.5.5 of
the DCPR of 2017 has not been complied with.
44. Insofar as the issue of locus raised by the respondents in the
affidavit in reply is concerned, it is submitted by the learned senior
counsel that the petitioners reside along the alignment of the Ambil
Odha and are affected due to floods that occurred on 25 th September,
2019. Any change sought to be carried out in the flow of the nalla is
bound to affect the area that fell along the alignment of the nalla. The
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straightening of the nalla will lead to an increase in the velocity of the
flow of water which will inevitably affect the life and property of the
petitioners. She submitted that the Manual on Storm Water Drainage
Systems prepared by the Central Public Health & Environmental
Engineering Organization (CPHEEO) suggesting that the maximum
velocity of storm water drains should be 3 m/s. She submits that the
entire exercise of changing the alignment of Ambil Odha irreversibly
altered its course tainted by the malafides and runs contrary to the
mandate of law.
45. It is submitted by the learned senior counsel that the National
Green Tribunal cannot go into the MRTP issues but can decide only
environmental issue in the proceedings filed by the petitioners. In the
suit, the Civil Court has not dealt with the MRTP issues but has dealt
with only the slum issue.
46. Ms.Gayatri Singh, learned counsel for the petitioner relied
upon the following of judgments :
1. Judgment of the Supreme Court in the case of
Manohar R. Joshi vs. State of Maharashtra & Ors.
(2012) 3 SCC 619,
2. Judgment of the Supreme Court in case of Vijay
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Krishna Kumbhar vs. State of Maharashtra, 1999
SCC OnLine Bom. 176,
3. Judgment of the Supreme Court in case of
Bangalore Medical Trust vs. B.S. Muddappa & Ors.
(1991) 4 SCC 54,
4. Judgment of this Court in case of Iqbal &
Brothers, Pune vs. State of Maharashtra & Ors.,
2012 (4) Mh.L.J. 716
5. Judgment of the Supreme Court in case of
Chairman, Indore Vikas Pradhikaran vs. Pure
Industrial Coke & Chemicals Ltd. & Ors. (2007) 8
SCC 705,
6. Judgment of the Supreme Court in case of Rajiv
Mohan Mishra vs. CIDCO & Ors. (2018) SCC
OnLine Bom.4132.
47. Learned Advocate General for the State submitted that three
plots are involved in this case i.e. plot nos.2B, 28 and 585. Plot
nos.2B and 585 belongs to the private party. The respondent no.6 is
developing plot nos.2B and 585. Plot no.28 belongs to the
respondent no.1 Corporation and is covered by slum. The SRA
scheme is being implemented by the Corporation itself. Plot no.28 is
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not being developed by the respondent no.6. Even if horse-shoe "C"
shape is deleted, the respondent no.6 would not be benefited by the
said deletion.
48. It is submitted that the straightening of nalla is being done
under the impugned order. Even if the impugned orders are set
aside, the straightening of nalla will still take place. The straightening
of nalla is being done while implementing the Town Planning
Scheme. He said Town Planning Scheme having been not
challenged, has become final and is binding on all the parties. He
submits that the nalla is factually on plot no.28 and not on plot no.2B.
49. It is submitted that the Bombay Town Planning Act, 1954 had
been repealed by the Maharashtra Regional Town Planning Act,
1966. The Arbitrator on the suggestions and objections received with
him gave a decision on 9th April, 1975 regarding final plot nos.29, 28,
27 and 2 of the Town Planning Scheme. He relied upon paragraph 2
of the said decision taken by the arbitrator which mentioned "that the
draft scheme proposal of straightening of the nalla through survey
no.135 is confirmed. He submitted that the proposal of nalla
designed has formed an integral part of the Town Planning Scheme.
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50. It is submitted that the draft planning scheme has been
sanctioned by the Government vide notification dated 15 th July, 1989
and the same has come into force with effect from 15 th September,
1989. He submits that diversion of nalla for straightening the same is
a component of Final Town Planning Scheme, which has already
come into force. The proposal of nalla straightening has been
continued in the subsequent proposals in the sanctioned draft plan in
the year 1987 and 2017. The said 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. He submits that the
submission of the learned senior counsel for the petitioners that the
Development Plan of 2017 would override the Town Planning
Scheme of 1989 is irrelevant.
51. It is submitted by the learned Advocate General that insofar as
the boundaries between plot nos.2B and 28 is concerned, the
position of existing nalla in the sanctioned Development Plan of 2017
is not correctly shown. The respondent no.1 accordingly sought
correction in the position of nalla qua the boundaries between final
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plot nos.2B and 28 per per the provisions of Note no. 1 of the
notification of the sanctioned plan of 2017. He invited our attention to
the google image annexed to the affidavit in reply filed by the
respondent no.4 showing the alignment of the existing nalla.
52. It is submitted by the Advocate General that the said Note no.1
is the integral part of the notification of the sanctioned plan of 2017
empowering the Commissioner of the respondent no.1 Corporation to
rectify such error. In such circumstances, the provision of Regulation
6.5.5 of then DCPR 2017 are not attracted. In support of this
submission, learned Advocate General placed reliance on the letter
dated 23rd December, 2021 addressed by the State Government to
the respondent no.4. There is no deviation sought by the Pune
Municipal Corporation in the alignment. The State Government was
not required to comply with the procedure prescribed for modification
of the Development Plan under section 37 or the MRTP Act. He
relied upon section 90 (1) of the MRTP Act and submits that it is the
mandatory duty on the part of the planning authority to seek proposal
of the final sanctioned Town Planning Scheme. The respondent no.1
Corporation which is the planning authority is executing the same.
53. It is submitted by the Advocate General that in the sanctioned
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Town Planning Scheme as well as the sanctioned Development Plan
in the year 1987, the proposed alignment of the said nalla is shown
straight and not curved. However, in the sanctioned Development
Plan in the year 2017, both the alignments of nalla i.e. existing horse-
shoe shape as well as proposed Town Planning Scheme have been
shown. There was no propriety in showing the existing (horse-shoe)
alignment of the said nalla in the sanctioned Development Plan of
2017, such errors can be rectified by the Commissioner as per Note
no.1 of the notification of the sanctioned Development Plan of 2017.
He relied upon Note no.1 to the said sanctioned notification.
54. It is submitted by the learned Advocate General that it is not the
case of the petitioners that by virtue of the impugned action of the
Corporation, the alignment of the nalla in the sanctioned
Development Plan of 2017 is getting changed, inasmuch as the
straightening of the nalla is concerned. It is submitted that since such
errors can be rectified only 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 do not amount to modifications under section 37 of the MRTP
Act.
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55. It is submitted by the learned Advocate General that the
contention of the petitioners that the proposal of the straightening of
the nalla was not shown in the draft Development Plan of 2013
published under section 26 of the MRTP Act is contrary to the facts
on record. A detail perusal of the said published plan clearly indicated
that the said proposal of the straightening of nalla is shown. Due to
overlapping of HCMTR over that of nalla, the petitioners seem to
have misinterpreted. He submitted that a close look of the
Development Plan reflects that the text "NALLA" is written in the said
portion which confirms the existence of the proposal of nalla
straightening. He submitted that the contention of the petitioners that
the citizens are deprived from raising objections is based on an
erroneous premise.
56. It is submitted by the learned Advocate General that the
respondent no.1 Corporation had published a Draft Development
Plan for the original limit of PMC under section 26(1) of the MRTP Act
on 4th March, 2013. The Planning Committee submitted its report,
after considering the objections and suggestions received on the draft
plan to the Planning Authority on 13th February, 2015 in accordance
with section 28(2) of MRTP Act. The Government in the Urban
Development Department Plan had accorded sanction to the
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Development Plan along with the Development Control and
Promotion Regulations of the Pune Municipal Corporation (DCPR of
PMC) vide notification dated 5th January, 2017 which came into force
with effect from 12th January, 2017.
57. It is submitted that the proposal of straightening of the
alignment of the said nalla as shown in the sanctioned Development
Plan of 2017 is the same as that in the sanctioned Town Planning
Scheme of 1989. The respondent no.1 Corporation is intending to
execute the same. All technical requirements suggested by the
concerned expert organization in the said field are required to be
complied with in respect of the execution of the nalla straightening
proposal.
58. It is submitted by the learned Advocate General that the Ambil
Odha stream (nalla) is flowing through the portion of survey
no.135,final plot no.28 is proposed as straight and not curved. Since
there is draftsman's error in the sanctioned Development Plan of
2017 in as much as boundaries between final plot no.223 and 28 is
concerned, such draftsman's error are capable of correction as per
the provisions of Note no.1 of modification of the sanctioned
Development Plan of 2017 and thus the provisions of Regulation
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6.5.5 of DCPR 2017 are not attracted in the said case. He submitted
that since there is no change in the proposal of the straightening of
the alignment of nalla, modification to the sanctioned Development
Plan of 2017 as per procedure prescribed under section 37 of the
MRTP Act is not required. He submitted that since the proposal of the
straightening of nalla shown in the Town Planning Scheme of 1989
and that shown in the sanctioned Development Plan of 2017 being
the same, the question of Development Plan overriding T.P.Scheme
or vice versa does not arise.
59. It is submitted that the position of the existing nalla in the
sanctioned Development Plan of 2017 in the context of boundaries
between plot no.2B and 28 is not shown as per revenue / land
records / sanctioned Town Planning Scheme which is sought to be
corrected under Note no.1 of notification of the sanctioned
Development Plan of 2017.
60. It is submitted that the said nalla was never on plot of the
respondent no.6 (hatched portion). The respondent no.6 had sought
clarification of "x y z" hatched portion and requested for deletion of
that hatched portion of the land and not the whole nalla. He relied
upon paragraphs 4 and 5 and the decision taken by the Arbitrator
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regarding final plot no.28 and other plots. The Town Planning
Scheme has not been challenged. The straightening has to be
executed at the spot. The portion of nalla is being corrected in the
context of boundaries. He invited our attention to the avernents
made by the respondent no.6 in the affidavit in reply dated 20 th
February, 2022 and more particularly paragraphs 5, 7 and 21.
61. It is submitted by the learned Advocate General that the
petitioners have no locus to file this writ petition. None of the
petitioners stay in the area where the proposed work of straightening
of nalla is to be carried out. The petitioners have not mentioned that
the petitioners would be affected due to the straightening of nalla. If
the nalla is straightened, it will go straight and would not affect
anybody.
62. Learned Advocate General tendered an ariel photographs
showing how nalla is shown. It is submitted by the learned Advocate
General that it is not the case of the State Government that in case
of any conflict between the Development Plan and the Town Planning
Scheme, the Town Planning Scheme will prevail. The case of the
State Government is that the draftsman's error about boundary line
which can be corrected according to the procedure prescribed in Note
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no.1 after the boundaries are corrected. The notice to those hutment
structures who may be affected are already issued. It is vehemently
urged that due to stay order obtained by the petitioners, the
respondents are prevented from implementing the purposes
mentioned in the Town Planning Scheme which has become final and
thus this petition shall be dismissed with exemplary costs and the
interim order shall be vacated.
63. Mr.More, learned counsel for the respondent no.5 - SRA
submitted that the petitioners have not demonstrated as to how the
straightening of nalla would affect the petitioners in any manner
whatsoever. He invited our attention to the prayers in the writ
petition and submitted that none of the prayers as sought by the
petitioners can be granted by this Court.
64. Mr.Vishwanath Patil, learned counsel for the respondent nos.1
and 2 adopted the submissions made by the learned Advocate
General and made additional submissions. He submitted that the
petitioners have no locus to file this petition. He submitted that the
entire petition of the petitioners is based on an erroneous premise
that the final Development Plan under section 31 of the MRTP Act
does not indicate any re-alignment (straightening) of the natural
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course of Ambil Odha from its existing "horse shoe" or "C" shaped
stream. He submitted that since there was draftsman's error, the
respondent no.1 Corporation has carried out the alignment of Ambil
Odha without following the procedure contemplated under the MRTP
Act by resorting to the Note appended to the notification dated 5th
January, 2017 which permits draftsman's error to be corrected.
65. It is submitted that the Ambil Odha flows from South to North in
the city of Pune flows through the survey no.135 (final plot no.28) and
is a "C" or "horse shoe" shape natural course of stream. He submitted
that even in the draft Development Plan even under the MRTP Act,
there was a proposal for straightening / alignment of "C" or "horse
shoe" shape. The State Government has already sanctioned the
draft Development Plan which came to be published in the Official
Gazette of 1987 in which the proposal for straightening / aligning "C"
or "horse shoe", the Ambil Odha was shown flowing from survey
no.135 i.e. final plot no.28 was sanctioned. The alignment was
reinstated as per the published plan of section 26 of the MRTP Act.
He submits that the plan attached by the petitioners at Exhibit "A" is
not a draft Development Plan but is the sanctioned Development Plan
with modification. All the suggestions and objections with regard to
the said Ambil Odha were considered by the Town Planning
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Authority before sanctioning the draft Development Plan.
66. It is submitted that on the basis of the letters dated 6 th October,
2017 and 10th April, 2018 addressed by the respondent no.5 and the
letter dated 17th April, 2018 from the respondent no.6 to the
respondent no.1, the respondent no.1 submitted a proposal on 14th
June, 2019 to the Commissioner for approval. The respondent no.1
applied for corrections in the Pune Peth Parvati TP Scheme No.3,
survey no.134, final plot no.2B, survey no.133, final plot no.585,
survey no.135, final plot no.28 in Sadashiv Peth plots and nalla by
alignment as per the plans.
67. It was proposed that the area of the final plots be maintained
as per TP Scheme. Out of the Development Plan scheme, Primove
and proposed area, maximum area be maintained for nalla. Area of
15209.73 sq. mtrs. Depth 2.5 mtr. The Commissioner vide resolution
no.6/463 dated 5th November, 2020, approved the proposal marking
it as "Y" and "X" respectively. He submits that in the Town Planning
Scheme of 1989, a decision was taken for straightening of nalla
through survey no.135 i.e. final plot no.28. The Municipal
Corporation has already appointed "Primove Infrastructure
Development Consultant" for conducting survey and for preparing
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detailed report for remedies to be done to avoid any further floor like
situation. The said Consultant has already submitted its report and
has been considered and is being implemented by the respondent
no.1 Corporation.
68. Mr.Jaydeep Deo, learned counsel for the respondent no.6 also
raised an issue of locus of the petitioners in filing this petition and
submitted the that none of the petitioners have been staying in the
locality of the area from where the Ambil Odha passes or are
affected by the work being carried out by the respondent no.1
Corporation. He adopted the submissions made by the learned
Advocate General for the State. It is submitted that the Ambil Odha
has been reduced to a stream carrying sewage water from the locality
surrounding it till the river Mutha.
69. It is submitted that due to the meandering (horse shoe shape)
of the nalla, the flow of the water of the nalla is considerably slowed
down. During the rainy season when the water of the nalla swells,
because of the velocity of the flow in the horse shoe shape reduces,
the same causes flooding of the Ambil Odha / nalla upstream. With a
view to cure this defect, the town planning authority undertook the
Town Planning Scheme in the year 1989 wherein an award was
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passed whereby it was decided that the horse shoe shape of the
nalla would be straightened with a width of 15 m through survey
no.135 i.e. final plot no.28 so that the water would flow rapidly and
the same would prevent flooding of the Ambil Odha. However, for the
last 30 years the decision of straightening of the nalla has remained
on papers.
70. It is submitted by the learned counsel that the nalla shown in
the draft Development Plan as well as final Development Plan is
shown in the blue colour. High Capacity Mass Transport System
(HCMTR) shown in grey colour also overlaps the nalla at many
places. It is submitted that the respondent no.6 had addressed
several letters to the respondent no.1 with respect to the realignment
of the nalla touching the final plot nos.28, 2B and 585.After
deliberation of various officers of the respondent no.1, the respondent
no.2 sent a proposal dated 25th August, 2020 recommending the
correction of drafting error by realignment of nalla boundaries
between final plot nos.28, 2B and 585 as per the Town Planning
Scheme and also recommending that since plot no.28 is now under
the respondent no.5 SRA, the decision with respect to the same can
very well be taken by the respondent no.5.
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71. The respondent no.1 vide the impugned order dated 5th
November, 2020 has approved only 1st part of the proposal i.e.
realignment of boundaries between final plot no.2B and 585 as per
the Town Planning Scheme. He submitted that in the existing land
use, the course of Ambil Odha is shown as flowing through survey
no.135, final plot no.28 as horse shoe of "C" shape however,
straightening of nalla as per Town Planning Scheme which was
incorporated in the final Development Plan.
72. It is submitted that the course of Ambil Odha flowing through
survey no.135, final plot no.28 as horse shoe or "C' shape was
already shown for straightening in the Town Planning Scheme and
included in the Development Plan and no objections were received by
the Planning Authority with regard to the same. The State
Government accorded sanction to the Development Plan on 15th
January, 2017 and the course of Ambil Odha in the final Development
Plan remained as what was indicated in the draft Development Plan
and Town Planning Scheme.
73. It is submitted that there was incorrect alignment having
occurred due to drafting error as is evident from the fact that the nalla
is erroneously shown as in the Development Plan, seems to be
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flowing from Lal Bahadur Shastri road and not within the piers under
the Dandekar bridge. It is submitted that the impugned order, only
allows the boundaries of the final plot no.2B and 585 directed to be
aligned as per the Town Planning Scheme. There is no order with
respect to boundaries between plot no.2B and 28 or with respect to
straightening of horse shoe shape of nalla. Horse shoe shape is
already straightening in the Town Planning Scheme as well as
Development Plan of 2017. There was thus no requirement from the
respondent no.1 to pass a separate order for the same.
74. It is submitted that the procedure set out under section 37(1)
and 37 (1B) of the MRTP Act was not required to be followed in this
case as no modification in the Development Plan is being made. The
respondent no.1 has only sought to rectify the draftsman's error by
rightly relying upon Note no.1. It is submitted that the appeal has
been already filed before the National Green Tribunal seeking
identical reliefs and with identical averments. National Green
Tribunal has already appointed a Committee with a direction to
submit a report. The petitioners have copied the averments and the
reliefs sought by a party in the said proceedings before the National
Green Tribunal in this writ petition. The entire project is at halt for
more than nine months.
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75. In her rejoinder arguments, learned senior counsel for the
petitioners submitted that even if Note no.1 applies, the condition of
note are not complied with by the respondent no.1 and the State
Government. She tendered written submissions. She submitted that
this case is not a case of alignment of nalla or rectification of the
alleged error but is also the case of removal of waterbody. Since it
amounted to modification of the provisions made in the final
Development Plan, the State Government could not have carried out
such modification without following the mandatory provisions under
section 37 or section 22A of the MRTP Act. The respondent no.1 has
given additional land to the respondent no.6 by reallocating the
boundaries of plot no.585. It is submitted that the respondent no.1
cannot be allowed to say that Regulation 6.5.5 does not apply to the
facts of this case.
76. Learned senior counsel invited our attention to the prayers in
the writ petition and submits that each and every prayer is
maintainable and deserves to be granted. She tendered compilation
of judgments. She also relied upon section 39 of the MRTP Act and
submitted that if there is variance in the Town Planning Scheme with
the Development Plan, then the Town Planning Scheme cannot be
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modified in accordance with the Development Plan. The
Development Plan prevail over the Town Planning Scheme. She also
relied upon section 59 of the MRTP Act. She submits that if the Town
Planning Scheme is contrary to the Development Plan, the
Development Plan has to be modified and not the Town Planning
Scheme. She submitted that the hutments are already demolished
illegally by the respondent no.1. The buildings are shifted however,
nalla still exists. Learned Advocate General at this stage states that
after the stay order vacated by this Court, the Municipal Corporation
has carried out certain work.
REASONS AND CONCLUSIONS :
77. We have heard the learned counsel for the parties and have
considered their rival submissions. Following questions fall for
consideration of this Court :-
(a) Whether the petitioners have locus to file this
writ petition ?
(b) 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 ?
(c) Whether proposal of straightening of nalla in
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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 ?
(d) 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 ?
(e) Whether the provisions of Regulation 6.5.5 of
the DCPR 2017 were at all attracted in the facts of
this case ?
78. Learned senior counsel for the petitioners, learned Advocate
General for the State and the other counsel appearing in the matter
invited our attention to various exhibits annexed to the writ petition
and the averments in the various affidavits filed by the respondents in
support of their rival contentions. Our attention is also invited to
various copies of the plans annexed to the writ petition and to the
affidavits tendered across the bar by the learned counsel for the
parties.
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79. A perusal of the record indicates that the arbitrator on the
suggestions and objections received by him, gave a decision on 9 th
April, 1975 regarding the final plot nos.29, 28, 27 and 2 of the Town
Planning Scheme. The decision of the arbitrator clearly provides that
the draft scheme proposal of straightening of the nalla through survey
no.135 is confirmed. The said proposal of nalla design had formed an
integral part of the Town Planning Scheme. It is not in dispute that
the draft planning scheme had been sanctioned by the State
Government vide notification dated 15th July, 1989 and the same has
come into force with effect from 15th September, 1989.
80. In our view, the said diversion of nalla for straightening was a
component of Final Town Planning Scheme, which had already come
into force. The Final Town Planning Scheme had not been impugned
by the petitioners and had attained finality. The proposal of nalla
straightening had been continued in the subsequent proposals of the
sanctioned draft plan in the year 1987 and 2017. The said 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. In our view, there is no variation in the Development
Plan of the year 2017 with respect to the proposal of the sanctioned
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Town Planning Scheme insofar as straightening of nalla is concerned.
81. We are inclined to accept the submission made by the learned
Advocate General that insofar as the boundaries between plot nos.2B
and 28 is concerned, the position of existing nalla in the sanctioned
Development Plan of 2017 is not correctly shown. The respondent
nos. 5 and 6 accordingly requested for seeking correction in the
position of nalla qua the boundaries between final plot nos.2B and 28
by invoking the provisions of Note no. 1 of the notification of the
sanctioned plan of 2017. The respondent no.1 rightly applied for
corrections in the position of the nalla qua the boundaries of two plots
by invoking the provisions of Note no. 1 of the notification of the
sanctioned plan of 2017. The google image vehemently relied upon
by the learned Advocate General annexed to the affidavit in reply by
the respondent no.4 clearly shows the alignment of the existing nalla.
82. It is clear that the said Note no.1 is an integral part of the
notification of the sanctioned plan of 2017 empowering the
Commissioner of the respondent no.1 Corporation to rectify the
draftsman's error. A perusal of the record clearly indicates that the
Pune Municipal Corporation has not applied for any deviation in the
alignment. The plans and the google map produced for consideration
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of this Court would clearly indicate that in the sanctioned Town
Planning Scheme as well as the sanctioned Development Plan in the
year 2017, the proposed alignment of the said nalla was shown
straight and not curved. However, in the sanctioned Development
Plan in the year 2017, both the alignments of nalla i.e. existing horse-
shoe shape as well as proposed Town Planning Scheme have been
shown. Since there is no propriety in showing the existing horse-shoe
alignment of the said nalla in the sanctioned Development Plan of
2017, such errors can be rectified by the Commissioner as per Note
no.1 of the notification of the sanctioned Development Plan of 2017.
83. In our view, the learned Advocate General is right in his
submission that it is not the case of the petitioners that by virtue of the
impugned action of the Corporation, the alignment of the nalla in the
sanctioned Development Plan of 2017 is getting changed, inasmuch
as the straightening of the nalla is concerned. In our view, the
respondent no.1 Corporation has rightly proposed to rectify the
draftsman's error by invoking Note no.1 of the notification of the
sanctioned Development Plan of the 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
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to modification under section 37 of the MRTP Act. Since there is no
modification of the Development Plan as sought to be canvassed by
the learned senior counsel for the petitioners, the respondent no.1 or
the State Government were not required to follow any mandatory
procedure prescribed under section 37 of the MRTP Act for carrying
out any rectification in the draftsman's error.
84. In our view, the submission of the learned senior counsel for
the petitioners that the proposal of the straightening of the nalla was
not shown in the Draft Development Plan of 2013 published under
section 26 of the MRTP Act is factually incorrect and contrary to the
facts on record. We have perused the plan produced by both the
parties for consideration of this Court which clearly indicate that the
said proposal of straightening of nalla was clearly shown. Due to
overlapping of HCMTR over that of nalla, the petitioners appear to
have misinterpreted the same while raising such plea. We have
minutely perused the Development Plan and are clearly of the opinion
that on a closer look of the Development Plan, "NALLA" is written in
the said portion which confirms the existence of the proposal of nalla
straightening.
85. Learned senior counsel for the petitioners could not dispute that
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the respondent no.1 Corporation had published a Draft Development
Plan for the original limit of the Pune Municipal Corporation under
section 26(1) of the MRTP Act on 4th March, 2013. The objections
and suggestions were invited by the Planning Committee before
submitting its report to the Planning Authority on 13th February, 2015
in consonance with section 28(2) of the MRTP Act. The State
Government accordingly accorded sanction to the Development Plan
along with the Development Control and Promotion Regulations of the
Pune Municipal Corporation (DCPR of the PMC) vide notification
dated 5th January, 2017 effecting from 12th January, 2017. It is not in
dispute that all the technical requirements suggested by the
concerned expert organization in the said field are required to be
complied with in respect of the execution of the nalla straightening
proposal.
86. In our view, the draftsman's error are capable of correction as
per the provisions of Note no.1 of the modification of the sanctioned
Development Plan of 2017 in as much as boundaries of final plot
no.2B and 28 is concerned. Regulation 6.5.5 of the DCPR 2017 are
thus not attracted in the facts of this case. There is no merit in the
submission made by the learned senior counsel for the petitioners
that any portion of the waterbody was taken away by the respondent
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no.1 so as to give larger plot to the respondent no.6 or otherwise. In
our view since the proposal of the straightening of nalla is shown in
the Town Planning Scheme of 1989 and shown in the Development
Plan 2017, there is no merit in the submission of the learned senior
counsel for the petitioners that the Development Plan in this case
overrides the Town Planning Scheme or vice versa.
87. We are inclined to accept the submission of the learned
counsel for the respondents that since the position of the existing
nalla in the sanctioned Development Plan of 2017 in the context of
boundaries between plot nos.2B and 28 is not shown as per revenue /
land records / sanctioned Town Planning Scheme, the same was
rightly sought to be corrected by invoking Note no.1 of notification of
the sanctioned Development Plan of 2017. The said nalla was not on
the plot of the respondent no.6. The respondent no.6 had only
requested for clarification of "x y z" hatched portion and requested for
deletion of that hatched portion of the land and not the whole nalla.
The petitioners never challenged the sanctioned Town Planning
Scheme.
88. We have also perused the ariel photographs tendered by the
learned Advocate General showing the position of the nalla. The
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learned Advocate General fairly pointed out that it was not the case of
the State Government that in case of conflict between the
Development Plan and the Town Planning Scheme, the Town
Planning Scheme would prevail. On the contrary it was the case of
the State Government as well as the other respondents that the
draftsman's error about boundary line can be corrected according to
the procedure prescribed in Note no.1. There is no substance in the
submission made by the learned senior counsel for the petitioners
that even if the said Note no.1 is applicable, the respondent no.1 has
not followed the procedure prescribed in the said Note no.1 while
collecting the alleged draftsman's error.
89. Insofar as the submission of the learned senior counsel for the
petitioners that the petitioners have locus to file this petition is
concerned, a perusal of the record clearly indicates that the
petitioners could not point out any prejudice alleged to have been
caused to the petitioners in view of the proposal of the respondent
no.1 to correct the draftsman's error by invoking Note no.1. Since the
petitioners are not presently affected in any manner whatsoever by
the decision proposed to be taken by the respondent no.1, the
petitioners have no locus to file this writ petition. Be that as it may,
this Court has dealt with the arguments advanced by the petitioners
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on merit also irrespective of the fact that the petitioners have no locus
to file this petition.
90. Insofar as the judgment of Supreme Court in case of
Bangalore Medical Trust (supra) relied upon by the learned senior
counsel for the petitioners on the issue of locus is concerned, since
the petitioners have failed to demonstrate any prejudice caused to the
petitioners themselves or even otherwise to the members of public,
the judgment of the Supreme Court in case of Bangalore Medical
Trust (supra) would not advance the case of the petitioners and is
clearly distinguishable on facts. The petitioners could not
demonstrate that the straightening of the nalla will lead to an increase
in the velocity of the flow of water which will affect the life and
property of the petitioners or any member of the public.
91. Though the learned senior counsel vehemently urged that the
entire exercise of changing the alignment of Ambil Odha irreversibly
altered its course tainted by the malafides and runs contrary to the
mandate of law to file the respondent no.6 or otherwise, no such
malafide on the part of the respondent no.1 could be demonstrated by
the petitioners during her lengthy arguments. Learned senior counsel
for the petitioners could not dispute that the respondent no.6 is
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developing plot nos.28 and 585. Plot no.28 belongs to the respondent
no.1 Corporation and is covered by slum. The SRA scheme is being
implemented by the Corporation itself.
92. Learned senior counsel for the petitioners could not dispute that
even if horse-shoe "C" shape is deleted, the respondent no.6 would
not be benefited by such deletion. Even if the impugned orders are
set aside, the straightening of nalla will still take place which is being
done while implementing the Town Planning Scheme. We are inclined
to accept the submission of the learned A.G.P. that the said nalla is
factually on plot no.28 and not on plot no.2B as is apparent from the
google map and produced for consideration of this Court by these
parties. In our view, the entire petition is based on erroneous premise
that the final Development Plan under section 31 of the MRTP Act
does not indicate any re-alignment (straightening) of the natural
course of Ambil Odha from its existing "horse shoe" or "C" shaped
stream.
93. Learned senior counsel for the petitioners could not dispute that
during the rainy season when the water of the nalla swells, because
of the velocity of the flow in the horse shoe shape reduces, the same
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causes flooding of the Ambil Odha / nalla upstream and with a view
to cure this defect, the town planning authority undertook the Town
Planning Scheme in the year 1989. The arbitrator made an award
whereby it was decided that the horse shoe shape of the nalla would
be straightened with a width of 15 meter through survey no.135 i.e.
final plot no.28 so that the water would flow rapidly and the same
would prevent flooding of the Ambil Odha. Since last 30 years the
decision of straightening of the nalla was not implemented.
94. The State Government sanctioned Development Plan on 15th
January, 2017. The course of Ambil Odha at the final Development
Plan remained as identical in the draft Development Plan and Town
Planning Scheme. Learned senior counsel for the petitioners did not
dispute that an appeal has been already filed before the National
Green Tribunal seeking identical reliefs and with identical averments.
The National Green Tribunal had already appointed a committee with
a direction to submit a report on this.
95. There is no substance in the submission made by the learned
senior counsel for the petitioners that the respondent no.1 has given
additional land to the respondent no.6 by reallocating the boundaries
of plot no.585. In our view section 39 of the MRTP Act pressed in
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service by the learned senior counsel for the petitioners, would not
apply in the fact situation of this case in view of there being no
variance in the Town Planning Scheme with the Development Plan on
the existence of nalla.
96. Judgment of Supreme Court in case of Manohar R. Joshi
(supra) was delivered in the year 2012, i.e. before the 2014
amendment. It was held that there are only two methods by which
modifications of the final development plan can be brought about.
One is where the proposal is such that it will not change the character
of the development plan, which is known as minor modification and
for which the procedure is laid down under section 37 of the Act. The
order is where the modification is of a substantial nature which is
defined under section 22-A of the Act. In that case the procedure as
laid down under section 29 is required to be followed. There is also
one more analogous provision though it is slightly different i.e. the one
provided under section 50 of the Act, for deletion of the reservation
where the appropriate authority (other than the Planning Authority) ,
no longer requires the designated land for the particular public
purpose, and seeks deletion of the reservation thereon.
97. It is further held by the Supreme Court that the minor
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modification under section 37(1) has to be such that it will not change
the character of the development plan. The planning authority has to
firstly form an opinion that the proposed modification will not change
the character of the development plan. In this case, the planning
authority has rightly held that there is no change whatsoever in the
development plan. The question of following the exhaustive
procedure by the respondent no.1 under section 37 of the MRTP Act
read with other provisions of the said Act did not arise. There is no
dispute about proposition of law laid down by the Supreme Court in
case of Manohar R. Joshi (supra). However, since in this case, the
respondent no.1 had proposed to only carry out the rectification of the
draftsman's error by exercising power under Note no.1, the judgment
pressed in service by the learned senior counsel for the petitioners in
case of Manohar R. Joshi (supra) would not advance the case of the
petitioners and is clearly distinguishable on facts.
98. In our view, section 39 of the MRTP Act which provides that
where a final Development plan contains proposals which are in
variation, or modification of those made in a town planning scheme,
which has been sanctioned by the State Government before the
commencement of this Act, the Planning Authority shall vary such
scheme suitably under section 92 to the extent necessary by the
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proposals made in the final Development Plan also would not apply to
the facts of this case in view of there being no variation insofar as
alignment of nalla is concerned. On this issue also, the judgment in
case of Manohar R. Joshi (supra) would not advance the case of the
petitioners.
99. Insofar as judgment of this Court in case of Iqbal & Brothers,
Pune (supra) relied upon by the learned senior counsel for the
petitioners is concerned, there is no dispute that the purpose of
preparing Town Planning scheme is for implementation of the
proposal for final Development Plan. The Development Plan is not for
the purpose of implementing the provisions in Town Planning Scheme
but it is the Town Planning Scheme which is supposed to be prepared
for implementing proposal as made in the final Development Plan. It
is not the case of the respondents that the Development Plan in this
case is for the purpose of implementing the provisions in the Town
Planning Scheme. It is the case of the respondents that there is
conformity in the Development Plan as well as in the Town Planning
Scheme insofar as alignment of nalla is concerned and thus this
judgment of this Court in case of Iqbal & Brothers, Pune (supra)
pressed in service by the learned senior counsel for the petitioners
would not advance the case of the petitioners.
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100. Insofar as the judgment of Supreme Court in case of
Chairman, Indore Vikas Pradhikaran (supra) pressed in service by
the learned senior counsel for the petitioners is concerned, it is held
by the Supreme Court that the land use, development plan and zonal
plan provided for the plan is at macro level whereas the town planning
scheme is at a micro level and, thus, would be subject to
development plan. There is no dispute about this proposition of law.
It is not the submission of the respondents that the Town Planning
Scheme is not subject to the development plan. The said judgment in
case of Chairman, Indore Vikas Pradhikaran (supra) does not
advance the case of the petitioners.
101. Insofar as the judgment of this Court in case of Rajiv Mohan
Mishra (supra) pressed in service by the learned senior counsel for
the petitioners is concerned, it is held that the Planning Authority
cannot grant a development permission which is contrary not only to a
sanctioned Development Plan, but to a notified draft Development
Plan. It does not permit any development including erection or re-
erection of structures or a layout or subdivision of a land contrary to a
Development Plan. In our view, the said judgment also thus would
not advance the case of the petitioners.
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102. Learned senior counsel for the petitioners invited our attention
to the stand taken by the respondent nos. 1 to 4 in various
correspondence through their officers on question of law is
inconsistent with the stand now taken in the affidavit filed before this
Court, in our view, even if there is any concession in law made by any
of the officer based on erroneous interpretation of the provisions of
law, such erroneous interpretation contrary to law, cannot bind any
authority.
103. We do not find any infirmity in 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. In our
view, writ petition is totally devoid of merits .
104. We accordingly pass the following order :-
a). Writ petition is dismissed. Rule is discharged.
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b). No order as to costs. Parties to act on the authenticated copy of
this judgment.
(M.G. SEWLIKAR, J.) (R.D. DHANUKA, J.)
105. At this stage, Ms.Gayatri Singh, learned counsel for the
petitioners seeks continuation of the ad-interim protection granted by
the Hon'ble Supreme Court in this writ petition, which is vehemently
opposed by the learned Advocate General and other counsel
appearing for the respondents.
106. Application for continuation of the ad-interim protection is
rejected.
(M.G. SEWLIKAR, J.) (R.D. DHANUKA, J.)
