Quashed

Nagrik Chetna Manch v. the State Government of Maharashtra and Anr.

Bombay HC15 Jan 2016PIL/156/2006

Case brief

AI extract

What is this about?

The Pune Municipal Corporation ordered road construction through an afforested hill. The High Court quashed the resolution, finding it illegal due to lack of Environment Impact Assessment, failure to consider mandatory duties under the MMC Act, and disregard of a constituted Expert Committee's recommendations and the impact on a man-made forest.

What did the court decide?

The impugned Resolution No.532 passed by the Pune Municipal Corporation on 27th February 1996 is quashed and set aside.

Nagrik Chetna Manch Vs the State Government of… — Environment and Pollution | Bombay HC (2016)

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ssp

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION
PUBLIC INTEREST LITIGATION NO.156 OF 2006

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Nagrik Chetna Manch ...Petitioner
vs.
State of Maharashtra
and another ...Respondents

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Ms Kiran Bhagalia i/b Ms Kirti Kokil for the
Petitioner
Mr.V.S.Gokhale, AGP for the respondent No.1
Mr.A.A.Kumbhakoni, Senior Advocate a/w Abhijit
Kulkarni and Manoj Badgujar for the respondent No.2
Mr.S.B.Deshmukh for the applicant in CA No.55 of
2014.

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CORAM : A.S.OKA, & V.L.ACHLIYA, JJ.
DATE ON WHICH SUBMISSIONS ARE HEARD:OCTOBER 8, 2015
DATE ON WHICH JUDGMENT IS PRONOUNCED:15TH JANUARY 2016

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JUDGMENT: (PER A.S.OKA,J.)

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THE FACTS OF THE CASE

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1The petitioner which is a public charitable
trust has filed the present PIL for challenging the
decision of the Pune Municipal Corporation to
construct a road through hills which have been
successfully afforested by the Social Forestation
Department of the State Government. A resolution

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was passed by the General Body of the second
respondent-Pune Municipal Corporation being
Resolution No.532 (for short “the impugned

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resolution”) on 27th February 1996 for construction
of a 60 feet wide road (for short “the proposed
road”)through the hills/hills slope from Paud
Phata Road upto the gate of Balbharti building
complex. It is pointed out in the petition that in
the draft revised Development Plan for the city of
Pune which was published in the year 1982, the
proposed road was shown. However, while sanctioning
the draft Development Plan, in exercise of the power
under section 31 of the Maharashtra Regional and
Town Planning Act,1966 (for short `the MRTP Act'),
the State Government did not grant approval to the
said proposed road shown in the draft revised
Development Plan.

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2It is pointed out that the hills through which
the proposed road will pass are lush green having a
large number of trees. The hills are regularly
visited by hundreds of people for walk in every
morning and evening. It is pointed out that the
visitors regularly visit and contribute towards
afforestation the forest on the hills. Reliance is
placed on the proposal submitted by Dr. Uday
Kulkarni in which adverse effects of the proposed
road have been pointed out. The contention in the
petition is that without carrying out the basic
investigation and survey, the Municipal Corporation
has thoughtlessly proposed to construct the said
road. It is pointed out that for the construction of
the road in terms of the impugned resolution, more

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than 1000 grown up trees will have to be cut. It is
pointed out that the Municipal Corporation has
already cut more than 100 trees including the sandal
wood trees. It is contended that the area may not
have been declared as a forest but it continues to
be a forest which needs to be preserved. It is
pointed out that during the last few years, there
has been a steady deterioration of environment in
the city of Pune. It is contended that creating
such a forest is useful for carbon trapping. It is
urged that the power under section 205 of the
Maharashtra Municipal Corporations Act,1949 (for
short the `MMC Act') cannot be used to defeat the
provisions of the section 31 of the MRTP Act. It is
pointed out that once the proposed road is
constructed through the hills, it will be impossible
for the Municipal Corporation to control the
encroachments by hawkers, garden restaurants and
unauthorised constructions on the side of the road.
It is pointed out that various reptiles and animals
like deers are found in the area and even large
number of birds are found. It is pointed out that
without carrying out any survey, the decision has
been hastily taken. There is a reply filed by Shri
Madhav Latkar, the Development Engineer (Road) of
the Pune Municipal Corporation on 7th April 2008.
In the said reply, it is pointed out that a
Committee of Experts has been constituted by the
Commissioner of the Pune Municipal Corporation
which includes Major General Shri S.C.N. Jathar

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(Retired) the Chairman of the Nagrik Chetna Manch
which is the petitioner herein. The Additional City
Engineer (Roads) of the said Municipal Corporation
was appointed as its Member Secretary. The terms of
reference of the Committee of Experts have been
annexed to the said affidavit. Interim report of the
Committee was annexed to the said affidavit which
records that the Environment Impact Assessment
report of the project of construction of the
proposed road does not exist. Therefore, a
recommendation was made to appoint an institution
recognised by the Government of India such as
National Environment Engineering Research Institute
(for short `NEERI') to carry out Environment Impact
Assessment (EIA). It was also recommended that the
Municipal Corporation should employ qualified
expert consultant having an expertise in the traffic
and transportation as well as finance. It was
recommended that the Pune Municipal Corporation
should permit the consultant to present its
methodology to the Committee of Experts before
finalising it. It was resolved that the members of
the Committee of Experts will continue to interact
with the Consultants. There is an additional
affidavit filed by the petitioner on 15th April 2013
bringing on record the fact that the Member
Secretary who was an Engineer of the Pune Municipal
Corporation has not convened a meeting of the
Committee of Experts after 28th February 2013. It is
pointed out that the Committee rejected the report

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of Shrishti Eco- Research Institute (SERI) which was
appointed as an Expert Agency by the Municipal
Corporation.

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3 There is another affidavit in reply filed earlier
on 7th February 2007 by Shri Madhav Latkar, the
Development Engineer (Road Department), Pune
Municipal Corporation pointing out the necessity of
construction of the proposed road. It is pointed
out that in a suit filed by another organization,
the Civil Court declined to grant temporary
injunction by a detailed order dated 21st July 2006.
A finding has been recorded by the Civil Court that
no forest exists on the land through which the
proposed road will pass. Reliance is placed on the
correspondence made by the Forest Department which
shows that the land covered by the proposed road has
not been declared as a forest.

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SUBMISSIONS OF THE PETITIONER

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4The learned counsel for the petitioner invited
our attention to the photographs annexed to the
petition as well as the latest photographs tendered
across the bar. She pointed out that it is an
admitted position that the entire stretch of the
said hills has been afforested which can be seen
even from the letter dated 25th January 2007
addressed by the Deputy Conservator of Forests, Pune
Forest Division, Pune to the Commissioner of the

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Pune Municipal Corporation. She pointed out that
the said letter records that though the District
Committee may not have included the said area in the
forest, in the Green Pune Project, large
plantations were made thereon between the year 1994
to 1996 and a man made forest has been created. She
pointed out that the Experts' Committee appointed by
the Commissioner of the Pune Municipal Corporation
rejected the recommendations of SERI for the reasons
which are recorded in the report. She pointed out
that a meeting of the Committee was not convened by
the Member Secretary or the Pune Municipal
Corporation for making final recommendations. She
invited our attention to the decision of the Apex
Court in the case of T.N.Godavarman Thirumulkpad vs
Union Of India1. She relied upon another decision
of the Apex Court in the case of Shabi Construction
Company vs. City Industrial Corporation of
Maharashtra Limited and another2. She pointed out
that in the draft revised Development Plan of the
city of Pune published in the year 1982, a road was
proposed through the said hills but while approving
and sanctioning the draft Development Plan, the
State Government in exercise of powers under sub-
section (2) of section 31 of the MRTP Act, rejected
the said proposal in the draft Development Plan.
She submitted that within few years of the said
rejection by the State Government, instead of moving

1 (1997) 2 SCC 267

2 (1995) 4 SCC 301

a proposal for the modification of the sanctioned
Development Plan, by a back door method, the
Municipal Corporation cannot bypass the provisions
of the MRTP Act and construct a road which was
proposed in the draft revised Development Plan which
was not sanctioned.

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THE SUBMISSIONS OF THE MUNICIPAL CORPORATION

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5The learned senior counsel for the Pune
Municipal Corporation urged that even without their
being any reservation in the Development Plan under
the MRTP Act, the Municipal Corporation can always
exercise the powers under section 205 of the MMC
Act,1949. He pointed out that the reasons have been
recorded in the impugned Resolution No.532 passed by
the General Body of the Pune Municipal Corporation.
It records that from the year 1982, there has been a
large scale development in the vicinity of the Paud
Road which has resulted in the increase of
population density as well as increase in the number
of vehicles on the road. He pointed out that the
said resolution itself records that as the road
starting from Paud Phata Road has become very
congested, to reduce the congestion on the road,
after a survey was carried out by the Road and
Traffic Planning Department of the Municipal
Corporation, the proposed road has been designed.
He pointed out that it will ease the pressure of
heavy traffic on the existing road which is one of

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the major roads in the city. He pointed out that
the distance will be reduced by 0.70 kilometer. He
invited our attention to the findings recorded by
the Civil Court in the detailed Judgment and Order
dated 21st July 2006 in R.C.S No.541 of 2006 by which
an application for temporary injunction was
rejected. He pointed out the prima facie finding
recorded that no part of the land from which the
proposed road will be passing is a forest. He also
pointed out the correspondence between the Forest
Department and the Municipal Commissioner which
unequivocally records that the land affected by the
proposed road is not a forest. He relied upon the
photographs annexed to the first affidavit of the
Municipal Corporation showing the congestion on the
existing road as well as the report submitted by the
Maharashtra State Road Development Corporation
Limited. He submitted that several measures will be
taken by the Pune Municipal Corporation to ensure
that minimum number of trees are cut for the
construction of the proposed road and the
compensatory afforestation is made. He pointed out
that the steps can be taken to ensure that there are
no encroachments on the said road and there are no
constructions made by the side of the road. It is
pointed out that the study made by the Maharashtra
State Road Development Corporation Limited shows
that the existing road was designed to have capacity
of 2000 vehicles whereas the same is being used by
more than 4000 vehicles. He would, therefore, urge

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that no interference can be made by the Writ Court
with the impugned decision as the same is taken by
the Pune Municipal Corporation in larger public
interests especially when the Pune Municipal
Corporation is bound to ensure that the
afforestation of the hills is not disturbed as far
as possible.

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CONSIDERATION OF SUBMISSIONS

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6We have carefully considered the submissions.
As far as the location of the proposed road is
concerned, there is no dispute. In the paragraph 2
of the writ petition, there are specific averments
that the said hills on which the proposed road is to
be constructed were taken up for afforestation by
the State Government and the afforestation has been
successfully carried out on these hills by the
Social Afforestation Department. In the paragraph
wise reply dated 7th February 2007 filed by Shri
Madhav Latkar, the correctness of the said averments
has not been denied. What is pleaded is the benefit
which may accrue to the citizens by the construction
of the proposed road. Secondly, it is pleaded that
in the revenue records, the land in question on
which the proposed road is to be constructed is not
recorded as a forest. It is admitted that for the
construction of the proposed road, some plants and
trees will have to be removed but an assurance is
given that the Corporation will replant the trees.
In paragraph 6 of the petition, the petitioners have

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stated that the entire hills are lush green and a
large number of citizens frequently visit the hills
for morning and evening walk. It is stated that in
fact the citizens have planted saplings and nurtured
them by manually carrying of water from the foot of
the hills. Even the said contention is not
specifically denied in the said reply. Moreover, in
the said affidavit, the Corporation has relied upon
the letter dated 25th January 2007 (Exhibit B to the
reply) addressed by the Deputy Conservator of
Forests, Pune Division, Pune to the Municipal
Commissioner. Paragraph 1 of the said letter
specifically records that the area covered by the
proposed Paud Phata Road to Balbharti was covered by
the Green Pune Project which was implemented from
the year 1994 to 1996 and a large number of trees
such as Glirisidia, Subabhul etc have been planted
thereon. It is stated that it is a man made forest
and therefore, it is not included in the designated
forest by the District Committee. Thus, it is an
admitted position that the man made forest will be
adversely affected by the construction of the
proposed road as number of trees will be felled or
cut for the purpose of its construction. The
photographs on record which are annexed at Exhibit-
K to the petition which are not disputed show that
it is a very thick man made forest. Even the
photographs tendered across the bar at the time of
final hearing which were taken on 4th October 2015
show that the entire area which will be affected by

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the proposed road is a lush green area which is
covered by a large number of trees and plants. Apart
from requirement of felling trees, as it happens in
all major cities, constructions will come up on both
the sides of the road which will destroy the forest.

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7It is true that the forest on the said hills
may not be strictly a forest within the meaning of
the Forest Conservation Act,1980. Nevertheless, the
admitted position is that it is a man made forest
and the work of afforestation was done by the
Government itself under the Green Pune Project.

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8In the case of Nature Lovers Movement v. State
of Kerala3, the Apex Court in paragraph 2 has
observed thus:

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“ 2. The Indian society has, for many centuries, been aware and conscious of the necessity of protecting environment and ecology. Sages and saints of India lived in forests. Their preachings contained in vedas, upanishads, smritis, etc. are ample evidence of the society's respect for plants, trees, earth, sky, air, water and every form of life. The main motto of social life is to live in harmony with nature. It was regarded as a sacred duty of everyone to protect them. In those days, people worshiped trees, rivers 3 (2009) 5 SCC 373

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and sea which were treated as belonging to
all living creatures. The children were
educated by elders of the society about the
necessity of keeping the environment clean
and protecting earth, rivers, sea, forests,
trees, flora, fauna and every species of
life.”

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 The Apex Court in its several decisions has
expanded the scope of Article 21 of the Constitution
of India. The Apex Court has held that every
citizen has a right to live in a pollution free
environment. It cannot be disputed that the green
cover over the city of Pune has been considerably
depleted during the last few years.

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It will be necessary to make a reference to the
directive principles of the State Policy
incorporated in the part IV of the Constitution of
India. Article 48A which reads thus:

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"48-A. Protection and improvement of
environment and safeguarding of forests and
wild life.—The State shall endeavour to
protect and improve the environment and to
safeguard the forests and wild life of the
country.”

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9It is well settled that though the Court of law
cannot enforce the directive principles of the State

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Policy, nevertheless, they are fundamental in
governance. Apart from Article 48A of Chapter IV,
the fundamental duties have been incorporated in the
form of Article 51A which read thus:

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“ 51-A. Fundamental duties. — It shall be the duty of every citizen of India —

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( a ) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

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( b ) to cherish and follow the noble ideals which inspired our national struggle for freedom;

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( c ) to uphold and protect the sovereignty, unity and integrity of India;

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( d ) to defend the country and render national service when called upon to do so;

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( e ) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;

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( f ) to value and preserve the rich heritage of our composite culture;

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( g ) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures ;..............”

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 (emphasis added)

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 The Apex Court dealt with Articles 48A and
51A in the case of Assn. for Environment Protection
v. State of Kerala4. In the first three paragraphs,
the Apex Court has observed thus:

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4 (2013) 7 SCC 226

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“G.S. SINGHVI, J.— Leave granted. Since time

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immemorial, people across the world have
always made efforts to preserve and protect
the natural resources like air, water, plants,
flora and fauna. Ancient scriptures of
different countries are full of stories of
man's zeal to protect the environment and
ecology. Our sages and saints always preached
and also taught the people to worship earth,
sky, rivers, sea, plants, trees and every form
of life. Majority of people still consider it
as their sacred duty to protect the plants,
trees, rivers, wells, etc. because it is
believed that they belong to all living
creatures.

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2. The ancient Roman Empire developed a legal
theory known as the “doctrine of the public
trust”. It was founded on the premise that
certain common properties such as air, sea,
water and forests are of immense importance to
the people in general and they must be held by
the Government as a trustee for the free and
unimpeded use by the general public and it
would be wholly unjustified to make them a
subject of private ownership. The doctrine
enjoins upon the Government to protect the
resources for the enjoyment of the general
public rather than to permit their use for

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private ownership or commercial exploitation
to satisfy the greed of a few.

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3.Although the Constitution of India, which
was enforced on 26-1-1950 did not contain any
expressprovisionforprotectionof
environment and ecology, the people continued
to treat it as their social duty to respect
the nature, natural resources and protect
environment and ecology. After 26 years,
Article 48-A was inserted in Part IV of the
Constitution and the State was burdened with
the responsibility of making an endeavour to
protect and improve the environment and to
safeguard the forest and wildlife of the
country. By the same amendment, fundamental
duties of the citizens were enumerated in the
form of Article 51-A (Part IV-A). These
include the duty to protect and improve the
natural environment including forests, lakes,
rivers and wildlife and to have compassion for
living creatures [Article 51-A(g)].

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 (emphasis added)

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10One of the fundamental duties of the citizens
is to protect and improve the natural environment
including the forests, lakes, rivers, wildlife and
to have compassion for living creatures. Therefore,
the endeavour of every citizen should be to protect

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the environment and in particular the forests. The
word `Forest' under Article 48A and clause (g) of
Article 51A cannot be restricted to a forest within
the meaning of Indian Forest Act, 1927 or the Forest
Conservation Act,1980. Such a narrow meaning will
defeat the very object of both the provisions. The
forest within the meaning of the said Articles must
include a man made forest. Therefore, the endeavour
of the Municipal Corporation should be to save and
protect the man made forest.

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11 Section 63 of the MMC Act lays down the
mandatory duties of the Municipal Corporation.
Section 63 provides that it shall be incumbent on
the Corporation to make reasonable and adequate
provisions by any means or measures for each of the
matter specified in the said section. Clause 1(b)
of section 63 reads thus:

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“63. It shall be incumbent on the Corporation
to make reasonable and adequate provision, by
any means or measures which it is lawfully
competent to it to use or to take, for each of
the following matters, namely —

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(1)erection of substantial boundary marks
of such description and in such positions as
shall be approved by the 1[State] Government
defining the limits or any alteration in the
limits of the City ;

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[(1a) planning for social and economic
development ;

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(1b)urban forestry, protection of the
environment and promotion of ecological
aspects ;] …..........”

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 (emphasis added)

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Thus, it is the mandatory duty of the Municipal
Corporation to make adequate provision by any means
or measures to preserve the urban forestry, to
protect the environment and to promote ecological
aspects. Thus, the mandatory duty of a Municipal
Corporation is to make adequate provision for urban
forestry. Clause (1b) will include a duty to
maintain the forests which already exist in the
urban area within its jurisdiction and to protect
it. If we examine the decision making process
adopted by the Pune Municipal Corporation, we find
that in the impugned Resolution No.532, the fact
that the man made forest will be adversely affected
by the proposed road is not even considered. The
Resolution gives reasons which according to the Pune
Municipal Corporation are relevant in support of the
proposal for construction of the proposed road. It
also records that in the draft Development Plan,
the road was proposed which was not sanctioned.
The Resolution is a detailed Resolution which gives
detailed reasons. It incorporates the alleged
benefits which will accrue to the citizens by the
construction of the proposed road. The Resolution

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refers to the recommendations of the Municipal
Commissioner. Though two affidavits are filed by
the Pune Municipal Corporation, the recommendations
are not produced. It is not the case made out in
the affidavits that the fact that the man made
forest created by the State Government under the
Green Pune Project will be destroyed by the
construction of the proposed road was brought to the
notice of the General Body of the Corporation before
the impugned resolution was passed. There is no
conscious application of mind by the Pune Municipal
Corporation to the drastic adverse effect of the
construction of the proposed road on the environment
and in particular on the existing man made forest.
We find that even the mandatory duty under clause 1b
of sub-section (1) of the section 63 of the MMC Act
is not brought to the notice of the General Body
before passing the impugned resolution. Thus, the
decision making process has been vitiated by non
consideration of the relevant factors. Apart from
the non consideration of the mandatory duty under
the MMC Act, the Corporation seems to be ignorant of
the provisions of Article 48A and Clause (g) of
Article 51A. The Constitutional mandate has not been
considered by the Corporation.

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12 There is one more important reason as to why
we cannot permit the construction of the proposed
road on the basis of the impugned resolution. The

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second affidavit dated 7th April 2008 filed by Shri
Madhav Latkar on behalf of the Pune Municipal
Corporation records that the Municipal Commissioner
constituted a Committee of Experts. Interim report
of the said Committee has been annexed to the said
affidavit. The terms of reference of the Committee
of Experts as per the order dated 24th October 2007
passed by the Municipal Commissioner are reproduced
in the said interim report which read thus :

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“ TERMS OF REFERENCE

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2The Terms of Reference (ToR) for the Expert
Committee as per the order dated 24th August
2007 from the Municipal Commissioner are as
follows:

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a.To analyse all existing reports for the
Project from consultants, PMC, NGOs, etc
(including the background for its approval)
and its current status to understand the main
objective in taking up the project,

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b.To work out an environment impact
assessment for the project,

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c.To work out the necessity for the
project, based on traffic demand analysis
supported by fact-finding or planning
surveys,

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d.To assess the benefits to the society,
such as, reduction in vehicle operational
cost, saving in travel time, de-congestion of
roads, improved level of service, increased
comfort to passengers and enhancement in land
value as a a result of the project to assess
whether the cost of the project is lower
than the cost reductions to the project users

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and other beneficiaries during the estimated
period,

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e.As a consequence of the above analysis,
to work out economic and financial rates of
returns to assess the cost-benefit to the
city of Pune,

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f.Lastly, to recommend if there is any
other more cost-effective manner in which the
objective of the project could be achieved.”

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13In the same interim report, there are
recommendations of the Committee of Experts. The
paragraph 17 of the report reads thus:

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“Recommendations of the Expert Committee

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17The Expert Committee then re-visited
the ToR and noted that EIA report does not
exist for theProject. The Expert Committee
has inferred that critically relevant data
based on which it can express a view on
paragraphs 2(c) to (f) the above are not
available. It, therefore, decided to request
the PMC to carry out the necessary surveys to
generate the required data by employing a
qualified and experienced consultant. The
Expert Committee was of the view that the
consultant should give a presentation of its
methodology for obtaining the data to work
out the necessity for the Project and assess
the benefits to the society so that its

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methodology would reflect the requirements of
the Expert Committee. The Expert Committee
therefore unanimously recommends;

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a.PMC to appoint an institution such as
GoI-recognisedNationalEnvironmental
Engineering Research Institute to carry out
the EIA for the project (paragraph 3.b of the
ToR),

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b. PMC to employ a qualified and
experienced consultant with both traffic and
transportation and finance expertise to carry
out surveys and studies to ascertain the
necessity of the Project and work out
financial/economic analyses (paragraph 3.c,
d, e and f of the ToR).

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c.The consultants to present its
methodology to the Expert Committee before
finalising it,

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d.The members of the Expert Committee to
continuously interact with NEERI and the
Consultant,

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e.PMC to ensure that the above tasks are
carried out in a time bound manner to avoid
unnecessary delays in the execution of the
Project if it is found viable, and

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f.That the Expert Committee should submit
its final report within 30 days of the
receipt of the reports from NEERI and the
Consultant.”

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14In terms of the said recommendations, the
Municipal Corporation appointed SERI to make
Environment Impact Assessment and Traffic Study.
The report submitted by the SERI was placed before
the meeting of the Committee of Experts on 18th
January 2011. The minutes dated 4th February 2011
recorded of the meeting dated 18th January 2011
record the unanimous recommendation of the
Committee. The said minutes have been signed by Shri
Vivek Kharadwadkar, the Additional City Engineer
(Roads) of the Pune Municipal Corporation who was
the Secretary of the Committee. The relevant part of
the minutes reads thus :

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“The EC was of the unanimous view that the
Report did not keep the basic objective of
the Survey/Study in view and is thus not
acceptable to the EC. The EC unanimously
decided that the failure to deliver on the
part of SERI in spite of detailed discussions
with the institution prior to the survey
calls for strict action and termination of
contract. However, the EC felt that SERI

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should be given one more chance to correct
all the anomalies in the report and submit a
revised report.”

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 (emphasis added)

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15 Thereafter, a meeting of the Committee was
held on 28th February 2013 to consider the modified
report of the SERI. Five members of the Committee
including Shri Pramod Nirbhavane, the Additional
City Engineer (Roads) of the Pune Municipal
Corporation attended the meeting. Two invitees were
also present. In the affidavit dated 15th April 2013
of Shri Jathar who is the member of the Committee of
Experts and the President of the petitioner, it is
stated that in the meeting held on 28th February
2013, the majority of the members of the Committee
of Experts were of the opinion that the modified
report of SERI does not make out a case for
permitting the construction of the proposed road and
therefore, they decided not to recommend the
construction of the proposed road. In paragraph 7 of
the affidavit, it is specifically contended that
behind back of the Committee of Experts, a revised
report of SERI was uploaded on the website of the
Pune Municipal Corporation on 5th March 2013. After
noticing that the members of the Committee lodged a
serious protest with the Additional City Engineer
(Roads) of the Pune Municipal Corporation. The
details of the material differences between the
report of August 2012 and the report of the same

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date which was uploaded on 5th March 2013 have been
set out in paragraph 8 of the said affidavit. A
report of majority of the members of the Expert
Committee is annexed to the said affidavit as
Annexure IV. It recommends that the construction of
the proposed road should not be undertaken. In
paragraph 19 of the said affidavit, Shri Jathar has
stated that on 12th March 2013, he issued e-mail to
Mr.Nirbhavane requesting him to hold a meeting of
the Committee, but no meeting was convened. A copy
of the said e-mail has been annexed as Exhibit-IX to
the said affidavit. The contents of the said
affidavit of Shri Jathar have not been dealt with by
the Pune Municipal Corporation by filing any
affidavit.

¶117

16We have already quoted the terms of reference
of the Committee of Experts as per the order 24th
August 2007 of the Municipal Commissioner. The
Committee was to make recommendations to the
Municipal Corporation after considering the report
of the project consultants. Interim report of the
Committee of Experts is annexed to the affidavit of
Shri Madhav Latkar, the Development Engineer of the
Pune Municipal Corporation. The recommendations in
the said interim report are already quoted above.
The recommendations clearly provide that after the
report of the Agency appointed by the Municipal
Corporation submits its report, the Committee of
Experts will submit a final report. As the contents

¶118

¶119

of the affidavit dated 15th April 2013 of Shri Jathar
are not disputed, it is apparent that the final
recommendations were never submitted by the said
Committee as the Additional City Engineer (Roads) of
the Pune Municipal Corporation failed to convene a
meeting of the Committee. Thus, the Municipal
Corporation does not have the benefit of the
recommendations of the Committee of Experts
constituted by the Municipal Commissioner under his
order dated 24th August 2007 as the Member Secretary
who was the Additional City Engineer (Roads) did not
convene the meeting of the Committee.

¶120

17The Municipal Commissioner realised the
necessity of constituting a Committee of Experts.
Unless the Committee is allowed to submit its final
report and the same is considered by the Pune
Municipal Corporation, surely, the Municipal
Corporation cannot proceed with the construction of
the proposed road. This is so in the light of the
fact that before passing the impugned Resolution,
the Environment Impact Assessment was not made and
the attention of the General Body was not invited to
the fact that the man made forest will be destroyed
by the construction of the proposed road. In fact
this Court has recorded a finding that non
consideration of several factors including the
provisions of the Constitution and statutory
mandatory duties of the Corporation has resulted in
vitiating the decision making process. When the
Municipal Commissioner on his own appointed the

¶121

¶122

Committee of Experts, the Municipal Corporation
cannot proceed further with the decision to
construct the proposed road without allowing the
Committee to submit its final recommendations.

¶123

18There is one more aspect of the matter. In the
year 1982, the draft revised Development Plan was
prepared by the Municipal Corporation and was
submitted to the State Government for sanction.
Admittedly, there was a provision made therein for
the construction of the proposed road. However,
that proposal was not approved by the State
Government while sanctioning the Development Plan in
exercise of the powers under section 31 of the MRTP
Act. Though the impugned Resolution was passed in
purported exercise of powers under section 205 of
the MMC Act, the fact that the State Government in
the year 1987 thought it fit not to permit
construction of the proposed road is very relevant.

¶124

19The concept of burden of proof in the cases
affecting the environment is well known. We need not
elaborate the said concept. In the case of M.C.
Mehta v. Kamal Nath5, the Apex Court held thus:

¶125

“35. We are fully aware that the issues
presented in this case illustrate the classic
struggle between those members of the public

¶126

5 (1997) 1 SCC 388

¶127

¶128

who would preserve our rivers, forests, parks
and open lands in their pristine purity and
thosechargedwithadministrative
responsibilities who, under the pressures of
the changing needs of an increasingly complex
society, find it necessary to encroach to
some extent upon open lands heretofore
considered inviolate to change. The
resolution of this conflict in any given case
is for the legislature and not the courts. If
there is a law made by Parliament or the
State Legislatures the courts can serve as an
instrument of determining legislative intent
in the exercise of its powers of judicial
review under the Constitution. But in the
absence of any legislation, the executive
acting under the doctrine of public trust
cannot abdicate the natural resources and
convert them into private ownership, or for
commercial use. The aesthetic use and the
pristine glory of the natural resources, the
environment and the ecosystems of our country
cannot be permitted to be eroded for private,
commercial or any other use unless the courts
find it necessary, in good faith, for the
public good and in public interest to
encroach upon the said resources.”

¶129

 (emphasis added)

¶130

¶131

20Unless a proper study is made by the Committee
of Experts, it cannot be held that the destruction
of the forest for the construction of the proposed
road is in public interest and is for a public good.

¶132

21Therefore, for all the reasons recorded
earlier, the impugned Resolution will have to be set
aside. However, it will be open for the Pune
Municipal Corporation to invite the recommendations
from the Committee of Experts already constituted by
the Municipal Commissioner and thereafter, to take a
fresh decision. If some of the the members of the
said Committee are not available, it will be open
for the Municipal Corporation to re-constitute the
Committee. Considering the mandatory obligation of
the Municipal Corporation under the MMC Act, before
taking a drastic decision of the construction of the
proposed road which will substantially destroy the
man made forest, the Environment Impact Assessment
needs to be made. Before taking a conscious
decision, if any, of permitting the construction of
the proposed road, the impact of the construction of
the proposed road on the environment will have to be
considered by the Municipal Corporation in the light
of the mandate of the Articles 48A and 51A and its
mandatory duty to protect environment.

¶133

22Considering the material placed on record and
the reasons recorded above, as of today, the

¶134

¶135

impugned resolution will not stand the test of
legality. We may make it clear that we have not
gone into the issue whether there can be a
reservation shown for the construction of the
proposed road in the revised Development Plan. All
contentions of the parties in that behalf are kept
open.

¶136

23Hence, we pass the following order:

¶137

(i) Subject to observations made in the Judgment, the impugned Resolution No.532 passed by the General Body of the Pune Municipal Corporation on 27^th February 1996 is hereby quashed and set aside;

¶138

(ii) Rule is accordingly made absolute with no order as to costs.

¶139

(V.L.ACHLIYA,J.)

¶140

(A.S.OKA,J.)

Nagrik Chetna Manch v. the State Government of Maharashtra and Anr.

Case brief

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Nagrik Chetna Manch v. the State Government of Maharashtra and Anr.

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