AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELALTE CIVIL JURISDICTION PUBLIC INTEREST LITIGATION NO.20 OF 2007 1. Shri Pradeep Chandrakant Indulkar, Age : 42 years, Occupation : Business, residing at 29, Kaushik, Shreenagar, Thane – 400 604. ) ) ) ) ) 2. Shri Nitin Shankar Deshpande, Age : 48 years, Occupation : Service, Residing at I/C, 108, Adarsh Nagar, Kolbad, Thane – 400 601. ) ) ) ) ) ... Petitioners Versus 1. The Municipal Corporation of the City of Thane, through the Commissioner, having office at Mahapalika Bhavan, Dr. Almeida Road, Chandanwadi, Panchapakhadi, Thane – 400 601. ) ) ) ) ) ) 2. The Collector, Thane, having office at Netaji Subhash Road, Thane – 400 601. ) ) ) 3. The Central Railway, through the Divisional Manager, having Office at, CST Office, Mumbai – 400 001. ) ) ) ) AJN 2 4. The State of Maharashtra, through the Urban Development Department and the Revenue Department, Mantralaya, Mumbai. ) ) ) ) ) 5. Nagarjuna Construction Company Limited, having office at, B-402, Dipti House, Off. M.V. Road, Suren Road, Andheri (East), Mumbai – 400 093. ) ) ) ) ) ... Respondents Ms. Gouri Godse for the petitioners. Mr. R.S. Apte for respondent 1-Corporation. Ms. J.S. Pawar, A.G.P. for respondents 2 and 4. Mr. Suresh Kumar for respondent 3. CORAM : SWATANTER KUMAR, C.J. & SMT. RANJANA DESAI, J. DATE ON WHICH THE JUDGMENT RESERVED : 25TH JULY, 2007. DATE ON WHICH THE JUDGMENT PRONOUNCED : 20TH SEPTEMBER, 2007. JUDGEMENT:- (Per Smt. Ranjana Desai, J.) 1. In this petition filed under Article 226 of the Constitution of India, the petitioners are seeking an order (i) quashing and setting AJN 3 aside Resolution No.258 dated 16/11/2006 read with Resolution No.14 dated 16/6/2004 passed by the General Body of the Municipal Corporation of the City of Thane; (ii) quashing and setting aside the decision of the Municipal Corporation of the City of Thane to allot contract of work of construction of the Deck cum Flyover to respondent 5 as per Resolution No.258 dated 18/11/2006 read with Resolution No.14 dated 16/6/2004 passed by the General Body of the Municipal Corporation of the City of Thane. 2. The petitioners are residents of Thane city. Respondent 1 is the Municipal Corporation of City of Thane (respondent 1- Corporation, for convenience) established under The Bombay Provincial Municipal Corporations Act, 1949 (for short, “the said Act of 1949”). Respondent 1-Corporation is also a Planning Authority within the meaning of The Maharashtra Regional and Town Planning Act, 1966 (for short, “the MRTP Act”). Respondent 2 is the Collector of Thane appointed under the provisions of The Maharashtra Land Revenue Code, 1966 (for short, “the said Code AJN 4 of 1966”). Respondent 3 is the Central Railway through the Divisional Manager, CST Office, Bombay. Respondent 4 is the State of Maharashtra. Respondent 5 is the Nagarjuna Construction Company Limited, who according to the petitioners, is likely to be affected by the orders that may be passed in this petition. 3. According to the petitioners, they have actively participated in various projects in the interest of public at large and the instant petition is filed by them in public interest. It is their case that respondent 1-Corporation has selected an area of 3000 sq. mtrs. for construction of Deck adjoining Platform No.2 of the Railway Station, Subway for Pedestrian Crossing and a Flyover for plying buses from S.T. Stand near Station Road upto Jambhli Naka through Shivaji Path and from Railway Station towards Gokhale Road through Dada Patil Marg. According to the petitioners, the decision to undertake the said project is taken by the General Body of respondent 1-Corporation by passing Resolution No.258 dated 18/11/2006 read with Resolution No.14 dated 16/6/2004. Thereby AJN 5 respondent 1-Corporation resolved to construct a Deck cum Flyover for implementing traffic control scheme viz. Thane Railway Station Area Improvement Scheme adjoining the Thane Railway Station on the West side of the city of Thane. Resolution No.258 dated 18/11/2006 is hereinafter for the sake of convenience referred to as “the said Resolution”. According to the petitioners, a perusal of the said Resolution shows that respondent 1- Corporation has resolved to construct the Flyover only for plying buses because for plying auto rickshaws and taxis from the Flyover, the height of the Flyover was required to be increased which would obstruct another proposed project of constructing Ring Railway. The said Resolution further states that to avoid any obstruction to the project of Ring Railway, respondent 1- Corporation decided to construct Flyover only for plying buses. The said Resolution further states that auto rickshaws and taxis will ply from below the Flyover. Thus, the Duck cum Flyover will be used only by buses and there will be platforms constructed for boarding the buses. The petitioners contend that the drawing / map of the said project prepared by respondent 1-Corporation AJN 6 does not provide for any way for private vehicles, fire brigade vans and ambulances. According to the petitioners, if the said project is implemented, the entire area from Jambhli Naka utpo Railway Station through Shivaji Path and from Gokhale Road to Railway Station through Dada Patil Marg will be restricted only for S.T. and TMT buses, taxis and auto rickshaws. The drawing/map also does not provide for the location for constructing pedestrians Subway as stated in the said Resolution. 4. The petitioners submit that a fire brigade van requires open space of approximately a minimum height of 3.5 meters and the geometric salient features prepared by respondent 1-Corporation show that the entire area covered by the Deck cum Flyover does not leave the required open space at the minimum required height for fire brigade van. According to the petitioners, the said Resolution does not even refer to any such provision and/or obtaining clearance from fire brigade department. 5. The petitioners further contend that M.H. High School is AJN 7 situated at the Shivaji Path from where the low height Flyover will be constructed. The said Resolution does not refer to any safety measures for the said school. It is submitted that the height of the Deck cum Flyover is reduced only for avoiding any obstruction for another proposed project of Ring Railway. The only consideration for passing the said Resolution is huge expenditure of Rs.30.50 crores under the garb of traffic control and further project of Ring Railway which will incur much higher expenditure. 6. According to the petitioners, respondent 1-Corporation has ignored that the area where the ramps of the Deck cum Flyover will be constructed will completely block the road and render it virtually useless. The Deck cum Flyover will start from Station Road near S.T. Stand and one part will end at Dada Patil Marg and another will end at Jambhli Naka. Thus, there will be three ramps. The first ramp will be at Station Road which today actually admeasures 9.75 meters wide out of which 403 sq. meters area will be occupied by ramp i.e. 6.50 meters wide and 62 meters in length. According to the petitioners, thus the width of 6.50 meters of the road will be AJN 8 completely blocked. 7. The petitioners further contend that similar situation will arise at one end at Dada Patil Marg and another end at Jambhli Naka. The second ramp will be at Dada Patil Marg which today actually admeasures only 9.75 meters wide out of which 231 sq. meters area will be occupied by ramp i.e. 5.50 meters wide and 42 meters in length. Thus the width of 5.50 meters of the road will be completely blocked. The third ramp will be at Jambhli Naka which today actually admesures only 12.8 meters out of which 747.5 sq. meters area will be occupied by ramp 6.5 meters wide and 115 meters in length. Thus, the width of 6.5 meters of the road will be completely blocked. According to the petitioners, all the three areas where the ramps will be constructed are notified as congested areas in the sanctioned development plan and they are always over crowded. Implementation of the said project will only mean shifting and/or exchanging the places of traffic jams and bottle neck areas due to heavy traffic. AJN 9 8. According to the petitioners, the first end of the Flyover is at Dada Patil Marg, thus the buses will come down from the Flyover and through Dada Patil Marg will go towards Gokhale Road by crossing a narrow turn near one decorative island constructed by respondent 1-Corporation, which also has a lamp post. The said road is today actually admeasuring 9 meters. Near the turning there is also a small temple. Thus, the buses cannot take turn from the said road until the decorative island along with the lamp post and the small temple is removed. 9. It is further contended by the petitioners that the third end of the Flyover is at Jambhli Naka which is a junction from where the traffic is diverted towards city, Eastern Express Highway, Ghodbunder Road, Kalwa, Mumbai Pune Highway, etc. By Resolution dated 22/12/2004 passed by the General Body of respondent 1-Corporation another project to construct an “Attractive Promenade” in the main city of Thane is sought to be implemented. Respondent 1-Corporation has selected Ahilyadevi Road adjoining Masunda Lake on one side and compound wall of AJN 10 St. John Baptist Church on the other side which is situated in the main city of Thane for the said construction. According to the petitioners, construction of Deck cum Flyover, Hanging Garden and also proposed Ring Railway project in areas notified as congested areas will create chaos. 10. According to the petitioners, as per section 22 of the MRTP Act, a development plan shall generally indicate the manner in which the use of the land in the year of the planning authority shall be regulated and the manner in which development thereof is carried out. Section 22(h) of the MRTP Act provides for reservation, conservation and development of areas of natural scenery and landscape. Section 22(i) provides for preservation of features, structures of places of historical, natural, architectural and scientific interest and educational value. As per section 25 of the MRTP Act, the officer of the planning authority has to carry out a survey of the land within the jurisdiction of the planning authority and prepare the existing land use map. According to the petitioners, the sanctioned development plan shows that the AJN 11 proposed site selected by respondent 1-Corporation is a D.P. Road having width of 18 meters. However, today, the required width is not in existence at all places and at most of the places there are no footpaths. 11. According to the petitioners, as per section 22(d) of the MRTP Act, the development plan has to indicate transport and communications, such as roads, highways, parkways, railways, etc. including their extension and development. By the said project, all together different mode of transport and communication is sought to be provided and the implementation of the said project will amount to extension and/or development of the roads, which would amount to modification of the development plan. According to the petitioners, respondent 1-Corporation is not entitled to pass the Resolution for construction of Deck cum Flyover without following the procedure under section 37 of the MRTP Act. The petitioners contend that the powers to effect any modification in the sanctioned development plan vests only with the State Government and, thus, the Resolution passed by respondent 1- AJN 12 Corporation is illegal and not in accordance with law. The petitioners submit that respondent 1-Corporation has passed Resolution No.448 dated 12/11/2001 and further Resolution No.287 dated 18/9/2002 for initiating proceedings under section 37 of the MRTP Act for modification of the sanctioned development plan for construction of Ring Railway and the said proceedings are partly heard and are pending for further hearing. After completing the formality of hearing respondent 1-Corporation is bound to forward the proposal to the State Government for approval under section 37 of the MRTP Act. 12. According to the petitioners, the present proposal for construction of Deck cum Flyover must wait for its implementation till the decision is taken on proposal for Ring Railway. The feasibility of the said project can be decided only by the State Government and if ultimately it is found that the said project affects the project of Ring Railway, the same will amount to curtailing the powers of the State Government. According to the petitioners, the implementation of the Resolution for construction of Deck cum AJN 13 Flyover above the road amounts to modification of the sanctioned development plan which respondent 1-Corporation is not entitled to do without sanction of the State Government. The said Deck cum Flyover is above the road at the same place where the construction of Ring Railway is proposed and in future if the State Government decides to approve the construction of Ring Railway, implementation of the same will be redundant due to the said Deck cum Flyover. 13. According to the petitioners, if the third end of the Flyover is constructed near Masunda Lake, footpath around the Masunda Lake which is used by senior citizens as well as people belonging to various age groups will be virtually blocked from one side. According to the petitioners, the only intention of respondent 1- Corporation in constructing the Deck cum Flyover is to keep on implementing projects beneficial to the Contractors. The said project is prepared to protect another proposed project of Ring Railway. According to the petitioners, even if the sanctioned development plan is implemented, entire traffic will be under control AJN 14 and there will be no requirement of Deck cum Flyover. If the road admeasuring 12 meters adjacent to railway station on the west side i.e. from S.T. Bus stand to CIDCO bus stop Chendani Koliwada, which is provided in the sanctioned development plan is constructed, entire traffic will be under control. Respondent 1- Corporation has not even attempted to construct the roads and the railway station at Kopri as per the sanctioned plan on account of which 50% of the traffic will be automatically diverted. 14. The petitioners contend that the Deck will be constructed adjoining Railway Station at a height of 4.5 meters occupying 3000 sq. meters area. It will be constructed on pillars approximately 25 numbers below the Deck and will occupy around atleast 100 sq. meters area against each pillar. Thus, there will be no scope for free access to ambulances and no access for fire brigade vans. The map prepared by respondent 1-Corporation does not even provide for any access to private vehicles, ambulances and fire brigade vans. No safety measures are provided for implementing the said project and on the contrary existing facilities are sought to AJN 15 be banished. The Flyover will cover a stretch of 800 meters and there is no provision for stops in between. Boarding places/platforms will be constructed at a height of 4.5 meters so senior citizens and the disabled will have to stop use of bus services. Since, there is no provision for private vehicles, they will also be prohibited from entering the area around Railway Station. According to the petitioners, the action of respondent 1-Corporation of proposing to construct a Deck cum Flyover by refusing to implement the sanctioned development plan is not only illegal and violative of the mandatory provisions of the MRTP Act but also amounts to defeating performance of the obligatory duties under section 63 of the MRTP Act. According to the petitioners, in the development plan for city of Thane, 17 major roads are provided. As per the information given by respondent 1-Corporation in the Summary dated 4/5/2006 most of the proposed roads are not even attempted to be constructed by respondent 1-Corporation. The petitioners contend that the RCC construction of the Deck cum Flyover will be on pillars. Each pillar will admeasure about 2.5 meters. They will be constructed in the middle of the roads or at AJN 16 the place of divider. That will reduce the width of the road. 15. According to the petitioners, the construction of the Flyover near the M.H. High School will block the open space near the school entrance. Respondent 1-Corporation has not carried out any survey before passing the said resolution. Respondent 1- Corporation has not utilized all the reservations for public roads and the proposed Railway Station at Kopri as per the sanctioned development plan. Instead of utilizing the available funds for the development of roads as per the reservations in the development plan, respondent 1-Corporation has decided to utilize the huge funds for construction of the Deck cum Flyover which will not only cause inconvenience to the public at large but also cause serious distraction to the Masunda Lake, M.H. High School as well as various residential and commercial buildings which also include hospitals. According to the petitioners, if the proposed project is implemented, there will also be a serious damage to the surroundings and distraction to the heritage sites. The project report, summary and resolutions of respondent 1-Corporation do AJN 17 not show any particulars of heritage clearance and environment clearance. According to the petitioners, Thane city lacks the basic infrastructure. Instead of implementing the sanctioned development plan, respondent 1-Corporation is spending a huge amount of Rs.30.50 crores for the construction of the said project overlooking the lack of basic infrastructure for the citizens of Thane city. According to the petitioners, the difficulties as stated in the said resolution can be effectively solved by implementing the existing sanctioned development plan by constructing road from S.T. Stand at Station Road to CIDCO Bus Stop and from S.T. Stand to Court Naka via Jambhli Naka and the Railway Station at Kopri. The petitioners contend that in fact, if the said project is implemented, the above roads will be of no use. The drawings prepared by respondent 1-Corporation presuppose that the said roads will never be constructed. According to the petitioners, if the project is implemented, the same will be a permanent feature and there will be no scope for any modification or any positive change in traffic system. The project is thus a permanent damage to the existing system. AJN 18 16. The petitioners further contend that another project provided in the sanctioned development plan regarding construction of Road Over Bridge for railway crossing is not implemented by respondent 1-Corporation when in fact it has paid an amount of Rs.14 lacs in the year 1985-86 for the said project. Respondent 1-Corporation has spent about Rs.5 crores for constructing a six lane road on Thane creek known as Kalwa – Saket – Balkum Road. This road is constructed in a no development zone by completely damaging the drainage system. According to the petitioners, the action on the part of respondent 1-Corporation of spending huge amounts illegally, indicates that it is always acting against the interest of citizen. Only in the year 2000, road in front of the Railway Station was concretized by spending Rs.2 crores and now the same will be destroyed by constructing Deck cum Flyover. According to the petitioners, the construction of the said Deck cum Flyover and the resultant congestion will interfere with the right of free movement of the citizen and it will be violative of Articles 14 and 19 of the Constitution of India. The said resolution and the manner in which AJN 19 respondent 1 is trying to implement the same being arbitrary is violative of Article 14 of the Constitution of India. 17. In the circumstances, the petitioners have approached this court praying for the aforementioned reliefs. 18. On 25/7/2007, the learned counsel appearing for both sides agreed that the map submitted by the respondents should be the basic map for determining the various disputes raised in the present writ petition. The said map is on record and for the purposes of identification, the said map was marked “X”. 19. Before we proceed to discuss the merit or otherwise of the above contentions raised on behalf of the parties, it would be appropriate for the court to state certain events that have occurred during the pendency of this petition. The Station Area Improvement Scheme is a project based upon the Resolution passed by the Corporation bearing No.258 dated 18/11/2006 under which it has proposed to construct Deck cum Flyover with an AJN 20 intention to ease traffic congestion and improve the existing traffic circulation in larger public interest. Besides the construction of the Deck cum Flyover, it also proposes to introduce widening of the road, limited to one way traffic, and bifurcation of bus traffic from other vehicular traffic. On behalf of the Corporation, it is contended that the work of this project had already commenced even at the time of filing of this petition. The court thus has to take greater care while exercising its powers or judicial intervention and has to ensure that larger public interest does not suffer. The learned counsel for the petitioners during the course of hearing had argued that the proposed plan may result in causing greater problems than the one existing today rather than resolving the same. We must notice here that the stand of the respondent before the court was fair and objective. Some of the problems were considered by the authorities objectively and the proposed plan was even amended to some extent to minimize the public inconvenience. In relation to Point “C” of the map “X” at Khandelwal lane, it was stated that the width of the road would be kept at 36 feet and would not be widened any more so as to keep footpath intact. Another AJN 21 modification was with regard to the distance between the end of the road and beginning of the ramp to the flyover from the end of CIDCO Road. It is one way traffic and there was possibility of traffic congestion and accident at the end of the ramp to the Deck cum Flyover. It was stated on behalf of the Corporation that the width portion shown in red and marked “Z” was agreed to be increased so as to ensure that the private traffic as well as taxies can conveniently operate in that area. Thus this passage would be free of traffic obstruction and not exposed to traffic hazard. Another undertaking given by the Corporation was that the road adjoining to Masunda Lake would be widened to a very limited extend so as to ease vehicular traffic without unnecessarily taking away the area of footpath. Thus there would be marginal difference between the existing footpath and footpath realigned by the Corporation. It was further agreed that the interest of the public for providing reasonable footpath shall be maintained and no green area on the said Masunda Lake shall be encroached upon. Of course, some part of the footpath is proposed to be taken for road widening and ease out traffic congestion. These are some of the AJN 22 points which were considered by the Corporation and were accordingly amended in the map marked “X”. The respondents thus attempted to consider the reasonable demand made in the larger public interest and this is also one of the reasons that we do not find it necessary to interfere any further in the progress of the project. Now we would record detailed reasons on the other aspect of this PIL. 20. We have heard Ms. Godse, the learned counsel appearing for the petitioners, at great length. We have perused the petition and the affidavit in reply filed by the petitioners dated 27/6/2007. We have also heard Mr. Apte, the learned counsel appearing for respondent 1-Corporation and we have perused the affidavit in reply filed by Mr. Praveen P. Papalkar, the Executive Engineer of respondent 1-Corporation dated 4/4/2007 and two subsequent affidavits filed by Mr. Papalkar and the additional affidavit of the petitioners dated 9/7/2007. The learned counsel for the petitioners has reiterated the contentions raised in the petition. In support of