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Amrita Prithwishwar … vs State Government Of Maharashtra … on 26 October, 2018

Judgment-WPL.2766.2017.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION (L) NO. 2766 OF 2017

1. Ms. Amrita Prithwishwar }
Bhattacharjee }
aged 43 years, Occupation }
self-employed, having address }
at: A-401, Raj Rudram, Golkuldham, }
Goregaon (E), Mumbai 400 063 }
}
2. Mr. Biju Augustine Kattain }
aged 49 years, Occupation Business, }
having address at: 223 Master }
Mind-4, Royal Palm Aarey Milk }
Colony, Goregaon (E), }
Mumbai 400 065 } Petitioners

versus

1. State Government of Maharashtra }
through Urban Development }
Department (UDD), Mantralaya, }
Mumbai 400 032 }
}
2. Deputy Director of Town }
Planning, Greater Mumbai, ENSA }
Hutments, E-Block, Azad Maidan, }
Mahapalika Marg, Mumbai 400 001 }
}
3. Municipal Corporation of Greater }
Mumbai, through Chief Engineer }
(Development Plan), Head Office, }
Mahapalika Marg, Mumbai 400 001 }
}
4. Mumbai Metro Rail Corporation }
Ltd. (MMRCL), NaMTTRI Building, }
Plot No. R-13, E Block, BKC, }
Bandra (E),Mumbai 400 051 }
}
5. Mumbai Metropolitan Region }
Development Authority, (MMRDA), }
C-14 15, E Block, BKC, Bandra (E), }
Mumbai 400 052 }

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6. Union of India (through Urban }
Development Ministry), Income Tax }
Office Building, ground floor, Marine }
Lines, Mumbai 400 020 } Respondents

Mr. Janak Dwarkadas-Senior Advocate
with Mr. Zal Andhyarujina, Ms. Hrishika
Harish, Mr. Sayeed Mulani, Ms. Shobhana
Waghmare and Mr. S. Sancheti i/b.
M/s.Mulani and Co. for the petitioners.

Mr. Ashutosh Kumbhakoni-Advocate
General with Mr. Abhay Patki-AGP for
respondent nos. 1 and 2.

Mr. Aspi Chinoy-Senior Advocate with
Mr.Shardul Singh i/b. Mr.Akshay Shinde
for respondent no. 4.

CORAM :- S. C. DHARMADHIKARI
PRAKASH. D. NAIK, JJ.

Reserved on 15 th June, 2018
Pronounced on 26 th October, 2018

JUDGME NT :- (Per S. C. Dharmadhhikari, J.)

1. Rule. Respondents waive service. By consent, Rule is made

returnable forthwith.

2. By this petition under Article 226 of the Constitution of

India, the petitioners are challenging the Notifications dated 24 th

August, 2017 and 9th November, 2017. The further relief sought is

that this court should issue a writ of mandamus or any other

appropriate writ, order or direction, directing the respondents to

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implement the directives of respondent no. 1 dated 16 th October,

2015 (Exhibit “F”) approving the Technical Committee Report

and allotting land at Kanjur Marg to the fourth respondent to

enable it to construct its car-shed depot. This relief is prayed in

order to prevent the destruction of trees in Aarey Milk Colony

and to prevent harm to the environment.

3. Thus, the short question before us is, whether the impugned

notifications result in destruction of green cover as apprehended

by the petitioners and whether the construction of car-shed is

permissible in the subject area.

4. For appreciating the challenge to the notifications, a

reference will have to be made to the background facts. The first

respondent to this writ petition is the State of Maharashtra

through the Secretary, Department of Urban Development having

his office at Mantralaya, Mumbai 400 032. The second

respondent is the Deputy Director of Town Planning, Greater

Mumbai. The third respondent is the Municipal Corporation of

Greater Mumbai. The fourth respondent is constructing the

metro line from Colaba to Seepz known as Metro-III.

5. It is common ground that the parliamentary statute titled

as the Metro Railways (Operation and Maintenance) Act, 2002

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has been enacted so as to provide for the operation and

maintenance and to regulate the working of metro railway in the

National Capital Region, metropolitan city and metropolitan area

and for matters connected therewith and incidental thereto. This

Act, enacted on 17th December, 2002, defines “metro railway” in

section 2(i) to mean rail-guided mass rapid transit system having

dedicated right of way, with steel wheel or rubber tyred wheel

coaches, but excluding tramways, for carriage of passengers and

includes what is specifically set out in this definition. The “metro

railway administration” is defined to mean a Government Metro

Railway or a non-Government Metro Railway. It is common

ground that such a project has been handed over for

implementation to a company, namely, respondent no. 4 to this

writ petition, which company is equally owned by the State of

Maharashtra and the Government of India. The fifth respondent

to the writ petition is the Mumbai Metropolitan Region

Development Authority (MMRDA), which is implementing the

Mumbai Metro Master Plan.

6. The petitioners have set out the following material dates

and events.

7. A part-underground part-overground metro line was

proposed from Colaba to Bandra sometime in the year 1990. To

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facilitate the construction of this metro line, a part of Cuffe-

Parade, falling under MCGM A Ward, was reserved for a Metro-

Car-Shed. A Metro Car-Shed/Car-Depot is the area required to

park the metro cars (bogies) when they are not in use, and where

repairs and maintenance is also carried out. A part of the said

area was required to be reclaimed from the shallow sea

(reclamation of this area was part of the original development

plan). The existing landed area is presently covered with slums.

8. In the year 2010, respondent No.1 issued its Government

Resolution (“GR”) No.MRD-3310/431/CR-55/UD-7 dated

15.06.2010, extending the said Metro Line to Seepz (Andheri

East), changing it to a completely underground line and changing

the location of the Metro-Car-Depot to an underground location at

Mahalaxmi Race Course.

9. By a Government Resolution dated 03.03.2014, the

Respondent No.1 recorded that due to financial unavailability

(total project cost being Rs.23,136 Crores), respondent No.6 was

unable to approve the Metro-III project. However, as a Japanese

International Cooperation Agency (“JICA”) had agreed to

sanction a loan of Rs.13,235 Crores, the project could move ahead

by forming Respondent No.4 as a Special Purpose Vehicle (“SPV”)

for this project. It was further recorded that 30 hectares of land

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at Aarey Depot would be transferred to Respondent No.4 for a

Metro-Car-Depot plus an additional 3 Hectares of land, also at

Aarey Depot, would be transferred to Respondent no.4 for

residential/commercial development with the purpose of raising

of funds for the Metro-III project. It was further recorded that

even the car-shed area was approved for commercial use and

commercial development. Exhibit-‘B’ is copy of the said

Government Resolution dated 3rd March, 2014 and Exhibit -‘B-1’ is

its English translation.

10. In the year 2014, respondent no.4 sought permission from

the Tree Authority, Municipal Corporation of Greater Mumbai to

cut/remove 2,298 trees at Aarey Depot. This caused a public

outcry throughout the city of Mumbai and no trees were cut at

the relevant time for this purpose. In February 2017, in Writ

Petition No.(L) 365 of 2017, connected to tree cutting for the

Metro 3 project, respondent no.4 informed that tree cutting plans

were not yet finalised at Aarey Depot. In the said Writ Petition

No.(L) 365 of 2017, this Court was pleased to permit respondent

no.4 to transplant 1,727 trees and cut 1,074 trees (total 2,801

affected trees) located at 26 stations, which did not include Aarey

Depot. Exhibit-‘C’ to the petition is a copy of respondent no. 4’s

letter dated 06.02.2017 stating that tree proposal for Aarey

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station and depot is not yet finalised, along with a copy of Exhibit-

K of the said WP(L)/365 of 2017 showing list of 26 stations, not

including Aarey Depot.

11. The Petitioner states that land at Aarey Depot is a pristine

area of land, covered with dense tree cover in most areas and lush

green open spaces. This is a naturally forested area, and is

completely uninhabited. This land is unmatched in its natural

beauty and attracts various species of homogeneous migratory

birds and butterflies. It is a natural habitat of a large number of

animals. The flora and fauna is peculiar and exclusive to the city

of Mumbai. The said land has remained untouched since the

1950’s. The entire area of Aarey Milk Colony is known as the

‘Green Lung’ of Mumbai City, on account of its natural beauty and

tree cover. The land at Aarey Milk Colony is a natural air-purifier

which is instrumental in cleaning away the air-toxins of Mumbai.

A less known fact is that Aarey Milk Colony is also the ‘Green

Sponge’ of Mumbai. The land at Aarey Depot (covered by the

impugned notification) is located on the banks of the Mithi River

(which carries the overflow waters from the Vihar lake and Powai

lake to the Arabian Sea). The open land at Aarey Depot soaks in

rain water during the monsoon and helps replenish the ground

water levels. The land at Aarey Depot is relatively low-lying and

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acts as a flood plain for the Mithi river when it overflows.

12. The proposal to develop Aarey Depot led to a public outcry

throughout Mumbai. It is for these reasons that respondent no.1,

on 11th March, 2015, constituted a Technical Committee of 6

members to look into the issue of environmental impact of setting

up Metro-Car-Depot at Aarey Depot. The committee consisted of

6 experts, including 2 environmental experts. On 11 th August,

2015 the said Committee submitted their report, wherein they

concluded by recommending that (i) the Metro-III car-depot be

relocated to Kanjur Marg, with only a small stabilising unit at

Aarey Depot; (ii) in case the land is not made available at Kanjur

Marg, then the car-depot be located at Aarey Depot within a 20.82

hectare area; and (iii) measures to be taken to mitigate

environment damage at Aarey Depot. It is pertinent to state that

the (only) two environmental experts of the committee,

Dr.Shyam Asolekar, Professor IIT Mumbai and Dr Rakesh Kumar,

Director NEERI, have both signed the said report with a remark

“not in agreement with conclusions v to ix and all the

recommendations stated above”. These dissenting environmental

experts also attached three notes, dated 13th May, 2015, 12th

June, 2015 and 30th July, 2015 in which they have categorically

stated that Aarey Depot must be saved from ecological

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destruction at all costs. It was noted by the environmental

experts that no real or proper investigation was ever conducted

into the alternate 8 sites proposed.

13. Immediately thereafter, respondent no.1 issued a directive

dated 16th October, 2015 approving the said report of the

Technical Committee in order to prevent the destruction of trees

in Aarey Depot and to prevent harm to the environment.

Respondent no.1 further approved that land at Kanjur Marg be

allotted to Respondent No.4 to enable it to construct its car-depot

at Kanjur Marg. Respondent no.1 also marked the location of the

proposed car-depot on the plan of Kanjur Marg by showing area in

green with caption “Proposed 41 Hectares Car Depot Plot free

from disputed Petition” and showing area in yellow with caption

“Elevated corridor and station passing through disputed land”. It

is apparent that the land at Kanjur Marg consists of two parts,

one disputed and one undisputed. Exhibit-‘F’ is a copy of the said

directive issued by respondent no.1, dated 16th October, 2015,

along with plan showing the location of proposed car-depot at

Kanjur Marg.

14. It is stated that there was a civil application, which was

moved in Civil Writ Petition No. 5792 of 1996, being Civil

Application No. 2521 of 2015, by which, the Collector of Mumbai

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Suburban District sought to handover undisputed 41 hectares of

land for car-depot at Kanjur Marg. However, that civil application

was withdrawn and another civil application being Civil

Application No. 84 of 2016 dated 28 th December, 2015 was filed,

but never moved. Thus, the allegation appears to be that though

Kanjur Marg is a larger piece of land than Aarey Depot, still, the

later land has been proposed to be handed over.

15. It is claimed that on 16th March, 2016, the first respondent

issued a resolution, under which, 30 hectares of land plus

additional 3 hectares at Aarey Depot is sought to be transferred

to the fourth respondent for metro car depot and commercial use.

Exhibit “H” to the writ petition is a copy of the original

Government Resolution dated 16th March, 2016, whereas, Exhibit

“H-1” is its English translation. The petitioners placed reliance on

a final notification issued by the Ministry of Environment and

Forest, Government of India dated 6th December, 2016 notifying

the area around Sanjay Gandhi National Park as Eco-Sensitive

Zone, including the area of Aarey Milk Colony. A press release in

that regard dated 6th December, 2016 is referred to and a copy

thereof is annexed as Exhibit “I”. On 30th December, 2016, the

first respondent approved the modified depot layout-1 at Aarey as

proposed by respondent no. 4 subject to fulfillment of certain

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conditions. On 29th December, 2016, the first respondent issued a

notice inviting objections/suggestions to their proposal to change

the reservation in the 1991 Development Plan pertaining to the

said land at Aarey from No-Development Zone to Metro Car

Depot/Workshop, allied users and Commercial (C-1) Zone.

Exhibit “K” is a copy of this notice with plan. It is claimed that

concerned citizens/residents filed their objection to this notice

before the second respondent and there were personal hearings

held. On 21st July, 2017, the second respondent forwarded a

report, in which, he recorded that 2382 objections were received

against the proposal to convert the land at Aarey Depot from No-

Development Zone to Metro Car-shed (C-1) Zone. It is claimed

that thereafter, a press release was issued by the fourth

respondent on 29th June, 2017 informing that they have issued a

work order for Aarey Car Depot. Thus, they proceeded without

the notifications in that behalf being issued and on a presumption

that the change in reservation is bound to be granted. Then,

there was another notice issued to the public on 24 th June, 2017

proposing to cut 49 trees on the three hectares at Aarey Depot.

In paragraph XVII of this petition, the petitioners allege as

under:-

“xvii. The Petitioners state that there are various other Metro
lines operating/under way in Mumbai. The Metro 1 (Andheri-

Ghatkopar) car-depot operates within 17 Hectares (which

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includes real estate development). The Metro 7 (Dahisar E to
Andheri E) car-depot is sanctioned to operate within just 17
Hectares (40 Acres) of land. The Metro 2A (Andheri W to
Dahisar W) car-depot is sanctioned to operate within just 9.35
Hectares. Land for the Metro 2A Car Depot was approved by
the Hon’ble High Court on 15.06.2017 in a Notice of Motion
filed by the Hon’ble Collector as recent as 21.04.2017. The
Petitioners crave leave to refer to and rely upon the Hon’ble
Bombay High Court’s Order dated 15.06.2017 in NM(L)/963 of
2017 in Suit 3780 of 1991, when produced. Car-Depots can be
located at any convenient place. The Car-Depot for Metro 1
Metro 2A are not located at the start/end points. The Metro
2A car-depot is located over a Kilometre away from the Metro
route. In the circumstances, there is no justification for the
requirement of 33 Hectares of land for the Metro 3 Car Depot
at Aarey, nor is there any justification to have a Car-depot at
Aarey. Any other less ecologically damaging location would
also suffice for the Car-Depot. The Petitioners crave leave to
refer to and rely upon details of Metro 1 Metro 7 car depot
sizes, when produced.

xviii. Furthermore, the Report Recommendations of the
‘Fact Finding Committee on Mumbai Floods’ (“FFC” ), which
was constituted by Respondent No.1 to look into the flooding
during July 2005, has interalia recommended that the fragile
eco-system within Mumbai city needs to be restored,
rejuvenated and upgraded, as the incident of flooding will only
increase in future. The city of Mumbai has already once again
seen the flood situation in August and September 2017
although there was much less rainfall. These occurrences are
a direct result of deteriorating environment and the ongoing
damage to the fragile eco system. Hence it is necessary to
preserve and protect the existing eco-sensitive areas of
Mumbai city. Hereto annexed and marked as EXHIBIT-L is
the relevant extract of the said FFC report. The Petitioners
crave leave to refer to and rely upon the entire report when
produced.

xix. Similarly, in the Recommendations contained in the
Parliament Report on ‘Disaster in Chennai Caused by
Torrential Rainfall and Consequent Flooding’ presented to
Parliament on 12.08.2016, it was observed that unplanned
urbanisation and growth of cities is one of the main
contributing factors to floods in all metro cities (Para 7.2.5.);
that floods are taking place more frequently in all cities
including Mumbai (Para 8.8); that due to global warming
flooding is more likely to happen frequently (Para 8.9). The
said report also recommends that flood channels should be

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cleared (Para 7.1.3); and that all metro cities must prepare
action plan for flood proofing well in advance (Para 7.2.4.).
The report clearly states that faulty town panning is one of
the major cause of floods (Para 7.2.3.); and that town planning
in all cities must be reviewed to give due importance to clear
flood channels, safe-passage to excess water in lakes and
other water bodies (Para 8.8). The Petitioners crave leave to
refer to and rely upon the said Recommendations
Observations and the said Parliamentary report when
produced.”

16. Then, it is claimed by relying on the photographs and

Google Earth images (Exhibit “M”) that the fourth respondent has

already started work at this car-depot by filling up about 30 feet

height with land-fill.

17. In paragraph 5 of the petition, a reference is made to the

Development Plan-2034 for Mumbai City and in which, referring

to the public outcry against commercial exploitation of Aarey

Milk Colony, the Planning Committee recommended that the land

at this colony be kept free from human intervention by

introduction of a Green Zone for entire Aarey Milk Colony, save

and except the area for metro car-shed. A reference is then made

in para 5 to the notification dated 7th August, 2017 on the

publication of final Draft Development Plan-2034, which included

at Serial No. 266 a modification to delete the reservation for

metro car-shed at Aarey and to include it in the Green Zone by

observing that this land is very important for the health and Eco-

system of Mumbai City. The relevant documents are compiled as

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Exhibit “N” to “Q” to this petition.

18. It is claimed that despite the deletion of this reservation in

the impugned notification published on 24th August, 2017, the user

is converted as above. It is alleged that there cannot be any

change or alteration once the Draft Development Plan-2034 is

published in the earlier Development Plan-1991. This writ

petition was filed in this court on 5th October, 2017 and in para 7,

there is a reference made to Government Resolution dated 23 rd

August, 2017 (Exhibit “R”) traceable to section 154 of the

Maharashtra Regional and Town Planning Act, 1966 (for short

“the MRTP Act”) providing that no reservation be shown on forest

land without no-objection certificate of the Forest Department. It

is claimed that the land at Aarey Depot is forest land. An

application is also pending before the National Green Tribunal for

a declaration that the Aarey Milk Colony is a forest and part of

the Eco-Sensitive Zone of Sanjay Gandhi National Park.

19. Then, it is alleged that after filing of this writ petition, an

affidavit in reply dated 5th March, 2018 was filed by the first and

the second respondent. In that, they disclosed that by a

notification dated 9th November, 2017, the Development Plan-2034

has been sanctioned just for Aarey Depot. Therein, the Draft

Development Plan was modified and the user of the land has been

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changed to Metro/Mono Car-Shed. Exhibit “S” is a copy of this

notification together with the Schedule. These two notifications,

copies of which are at Exhibit “A” and “S” are then referred to as

the impugned notifications and challenge is raised thereto on

several grounds, including the amended grounds inserted and

referred as paras 8(vi) to 8(xii).

20. The petition is opposed by the respondents. The fourth

respondent has filed an affidavit in reply affirmed on 15 th

February, 2018. In that, they have denied the allegations. While

stressing the need and requirement of the land in question for

setting up a metro car-shed/depot/ workshop, it is not denied that

a request was made to the State Government to change the

user/designation/reservation of the said land. It is stated that the

original and preferred option of the fourth respondent was to

construct a metro car-shed with 55 stabling lines. That would

require approximately 30 hectares of land. It would have

impacted 2298 trees. It is in these circumstances that a

reference is made to the setting up of a Technical Committee by

Government Resolution dated 11th March, 2015. That mandated

the MMRDA to consider various aspects in relation to the request

of respondent no. 4, including availability of alternate site and in

the absence of such availability, take steps to minimise

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environment damage. The Technical Committee submitted its

report, which came to be accepted by the State Government on

16th October, 2015. Hence, the fourth respondent requested the

State Government to make available the land at Kanjur Marg.

The same was not made available to the fourth respondent within

a period of three months, as has been recommended in the report.

Thereafter, alternate proposals were considered and a reference

is made to the same in para 9 of this affidavit. Bearing in mind

the cost, a general consultant for the project issued a letter on 1 st

February, 2016 to the fourth respondent highlighting the

potential impact of delayed finalisation of the metro depot

location. It was stated that the land at Kanjur Marg was not

suitable, as there are various issues in relation thereto. There

were technical difficulties. The technical difficulties, inter alia

were that the land at Kanjur Marg would have to be filled by 3 to 4

meters to raise the depot above high floor level, this is a large

scale filling. It would conflict with two monsoon seasons in the

time period, over and above which, the availability of the fill and

logistics to get the fill were both uncertain. Such difficulties at the

site are pointed out in para 11 and then, it is emphasised that the

general consultant recommended to the fourth respondent that

the metro depot/shed be constructed at Aarey using the double

decked layout as per the Technical Committee’s report. The

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general consultant represented that it would endeavor to restrict

the depot planning within 20.82 hectares and not to affect more

than 500 trees. It is in these circumstances that the fourth

respondent says that the Government was moved to take a

decision. That was because the delay would have impacted the

project and the cost went on increasing and mounting. There

were complications with regard to the alternate sites and

highlighted in paras 12 to 16 of the affidavit in reply. It is,

therefore, stated that all options were considered and then, the

Board meeting of the fourth respondent resolved that the

modifications should be carried out by moving a request to the

State Government. That is how the request was made on 1 st April,

2016. That culminated in the final steps being taken, namely,

issuance of the impugned notifications.

21. It is claimed that the work has started for considerable

time. The work of each station and laying of underground lines is

required to progress in tandem with the work of completion of the

metro shed. Once the station work has commenced and is being

carried out, then, the construction of the car-shed could not be

delayed. The work is carried out under the subject statute, which

is not challenged. In these circumstances, any orders of this

court would cause immense prejudice and loss to the project,

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which is in public interest. Hence, the writ petition be dismissed.

22. The petitioners filed a rejoinder affidavit to this reply

pointing out as to how the alternate site, proposals and options

were not considered and from inception, the fourth respondent

had in mind the subject land at Aarey. It is in these

circumstances and highlighting the potential damage to the

ecology and environment, it is claimed that the petition be

allowed. It is highlighted in this affidavit-in-rejoinder that the

land at Aarey is in Eco-sensitive forest area. It is also the flood

plain for the Mithi River. Filling up this land would cause

ecological destruction. The land at Kanjur Marg has no tree cover

and is not located in Eco-sensitive area. It is stated that the same

land at Kanjur Marg is to be developed for metro car-shed for

Metro Line 6, which lines starts at Jogeshwari, passes Aarey and

ends at Kanjur Marg. The cost benefits of having a combined line

and depot are enormous. Therefore, the respondents should not

be permitted to move the depot now to this Eco-sensitive area.

This affidavit in rejoinder is dated 5th March, 2018.

23. Initially there was no response to this petition from the

State Government. On 25th March, 2018, respondent nos. 1 and 2

filed an affidavit in reply of the Deputy Director of Town Planning

and in this affidavit, it is stated as under:-

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“2. I say that, the Petitioners have challenged the
Notification dated 24.08.2017 issued by the Government in
Urban Development Department i.e. Respondent No.1 under
Section 37(1AA)(c) of the Maharashtra Regional and Town
Planning Act, modifying the sanctioned revised Development
Plan (D.P.Plan) of K/East Ward of year 1991 in respect of land
bearing CTS No.9(part), 10(part), 11(part), 12(part) and
13(part) of Village Prajapur and CTS No.2(part) of Village
Vyravali, thereby inter alia deleting 33 Hectares of land from
“No Development Zone” and reserving it for “Metro Car
Depot/Workshop”, allied users. Further, the Petitioners have
urged that the Government in Urban Development
Department has unlawfully and illegally changed the land
user of Aarey Depot from NDZ to Metro Car Depot by way of
the impugned Notification dated 24.08.2017. Hereto annexed
as copy of the said Notification as EXHIBIT-1.

4. I say that, the Revised Development Plan of K/E Ward of
Municipal Corporation of Greater Mumbai has been
sanctioned by the Government in Urban Development
Department, under Section 31(1) of the Maharashtra
Regional and Town Planning Act, 1966 vide Notification N.
TPB-4392/4716/CR-181/92/UD-11, dated 12th November, 1992
so as to come into force with effect from 29th December, 1992.

5. I say that, the Mumbai Metropolitan Region
Development Authority is implementing Mumbai Metro
Master Plan through Special Purpose Vehicle Company
“Mumbai Metro Rail Corporation Limited”. The said
Authority has requested that the land admeasuring about 33
Hectares, bearing CTS No.9(part), 10(part), 11(part),
12(part), 13(part) of Village Prajapur and CTS No.2(part) of
Village Vyravali is required for Aarey Car Depot for Metro
Line-III, Colaba-Bandra Corridor and also requested to change
the use of the said land in the said Sanctioned Revised
Development Plan from No Development Zone to Metro Car
Depot/Workshop allied facilities and Commercial (C-1) Zone.

6. I say that, the Agriculture, Animal Husbandry, Dairy
Development and Fisheries Department, Government of
Maharashtra vide memorandum dated 5th March, 2014 has
accorded sanction to transfer the land in their possession
bearing CTS No.9(part), 10(part), 11(part), 12(part),
13(part) of Village Prajapur admeasuring about 29.79
Hectares for Aarey Car Depot and also recorded sanction to
transfer additional 3.00 Hectare land from CTS No.12(part)
and 13(part) vide Government Resolution dated 16 th March,
2016 for the same purpose.

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7. I say that, in the meantime the State Government has
constituted Committee vide Government Resolution No.MRD-
3315/CR23/UD-7, dated 11th March, 2015 under the
Chairmanship of the Metropolitan Commissioner, MMRDA
regarding the proposed Car Depot on the said land to study
the alternatives for locating Car Depot, if possible and to
minimize damage to the trees on the site, if suitable
alternative is not found and also to suggest mitigation
measures to minimize environmental damages.

8. I say that, the said Committee has submitted its report
with recommendations to the State Government and the said
Authority vide letter dated 1st April, 2016 has intimated to the
State Government that the alternative site is not available
and the said land can be utilized for Car Depot by saving more
than 50% of trees and plantation will be undertaken as per
statutory requirements of 1:3 trees for every tree cut as per
Committee’s recommendations and requested to sanction Car
Depot on the said land.

9. I say that, the State Government was of opinion that in
the public interest it is necessary to delete the said land from
the No Development Zone in the said Plan and to reserve it for
Metro Car Depot/Workshop, allied facilities and Commercial
(C-1) Zone.”

24. Thus, it is claimed that all the steps have been taken and the

modifications are with conditions. These conditions are

enumerated at page 180 of the paper book. That is part and

parcel of the affidavit in reply of the State Government. That

reads as under:-

“(1) Open area shown on the Part Plan of proposed
modification shall be kept open and it shall be binding to
conserve the trees on part of the said land permanently.

(2) To mitigate the environmental impact to Aarey Colony
following measures shall be undertaken :

i) Ground water recharging arrangements to
be provided in the Depot.

ii) Plantation of Trees as per recommendation

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of the Committee.

iii) Trees above 10 feet height of native variety
only be planted.

iv) Plantation to be undertaken by professional
agencies only.

v) Annual Audit of plantation by Third Party
and Reports posted on the Company’s
website.

vi) MMRC to maintain these trees for 5 years.

(3) Total 33 Hectors of land shall be used only for Metro
Car Depot/Workshop, allied users only. Commercial user shall
not be permitted.

(4) Before development of the land for the purpose of Car
Shed, Mumbai Metro Rail Corporation Limited shall obtain
necessary permissions from concerned Department as
required under the all other prevailing laws.

(5) The character of overall construction shall be such that
the underground water table shall not get disturbed.”

25. It is claimed that the objections or suggestions have not

been disregarded, but, bearing in mind the larger public purpose

sought to be subserved by the project, these steps and measures

have been taken. By incorporating the conditions as aforenoted,

the concerns of all stake holders, including the petitioners are

taken care of. It is, therefore, denied that the notification is not in

accordance with law.

26. The argument of the petitioners that due to said notification,

the No-Development Zone is reduced by more than 10% and the

character of the plan is changed, is incorrect. It is stated that this

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argument overlooks sections 22-A, 31 and 37(1AA) of the MRTP

Act. It is claimed that the procedure for modification as

stipulated by section 37 has not been violated. The notification,

therefore, does not violate any provisions of the law. It is claimed

that the Government has sanctioned the Draft Revised

Development Plan partly under the provisions of section 31 of the

MRTP Act by notification dated 9th November, 2017. The proposal

in respect of the metro car-shed on the land (area 33 hectares)

has been sanctioned. Since Revised Development Plan came into

force, the notification dated 24th August, 2017 has no statutory

effect.

27. There is an additional affidavit of Mr. Sanjay Shantaram

Banait, Deputy Director of Town Planning, filed on behalf of the

State and prior thereto, there is an additional affidavit affirmed

on 19th March, 2018 of the fourth respondent. In the additional

affidavit, it is claimed that Aarey Milk Colony land admeasures

1287 Hectares and it is situated adjacent to Jogeshwari Vikhroli

Link Road (JVLR). The affidavit of the State dated 17 th February,

2016 filed before the National Green Tribunal confirms that Aarey

Milk Colony has not been recognised and notified/identified as

forest land in any record. By a draft notification dated 22nd

January, 2016, for the first time, this Milk Colony was proposed to

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be included within the Eco-sensitive Zone of Sanjay Gandhi

National Park. However, the expert committee, which has been

constituted for declaration of Eco-sensitive Zones unanimously

resolved that the area of 165 hectares of the said land, which

includes the land proposed to be allotted for metro depot, should

not be included within the Eco-sensitive Zone and accordingly, the

final notification dated 6th December, 2016 did not include this

land of the Aarey Milk Colony in the notified Eco-sensitive Zone.

Then, it is claimed that within the colony, there are several cattle

sheds, many of which are abutted by large grazing grounds. A

sizable portion of the area has also been allotted by the

authorities to the cattle owners as grazing land. There are school

buildings, police wireless station, hospitals, godowns, salt

breaking unit, factories, general stores, a Reliance Energy Sub

Station and a concrete manufacturing plant. The Konkan Krishi

Vidyapeeth is located in the Aarey Milk Colony area. There is also

a boiler house, central dairy building and garages located within

the Aarey Milk Colony. The Mahananda Dairy Factory and staff

quarters of this dairy are also located in the Aarey Milk Colony

area. There are several external roads passing through the

Aarey Milk Colony land area. It is claimed that the plot, which

has been allotted for the metro car depot is located in the extreme

southern end of the Aarey Milk Colony area and is located on its

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southern periphery. It is in the vicinity of the busy JVLR, the

Marol-Maroshi Road and the Aarey-Powai Road. The JVLR is one

of the busiest roads of the city and links the central suburbs with

the western suburbs and further feed traffic for the domestic and

international airports. The metro plot is adjoining land presently

occupied by an electric sub-station and training centre of Reliance

Energy and a plot of land which was being used by Ready Mix

Concrete Manufacturing plant. The plot is surrounded on three

sides by roads on which there is significant vehicular traffic. The

depot plot is not located in any core green area nor is it

completely covered with trees. A major part of the plot was

grasslands, which was being used as a grazing ground for cattle

housed in the vicinity. These facts have been recorded in the

report of the Technical Committee and even in the dissenting

note. The metro depot area has been delineated in brown hatched

lines upon the map prepared by the authorities of Aarey Colony

Division and all of them have recorded that this can be utilised for

construction of the car depot. The decision to construct this

depot on the said Aarey Milk Colony has been taken after detailed

deliberation at every level. There have been consultations and

deliberations as well.

28. In this affidavit, it is further stated as under:-

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“3. With reference to Para 4(vii) to (x) of the Petition, I say
that pursuant to the recommendation/ Report of the
Technical Committee the State Government had made efforts
to secure the land at Kanjur Marg for the Metro Depot.
However as a substantial part of the land required is the
subject of litigation/proceedings pending in this Hon’ble Court
the Govt. was apparently unable to secure possession thereof
within any proximate time frame. I deny that no efforts were
made by the govt. to move the Applications filed in that
regard. The allegation that the Depot is sought to be located
at the Aarey Milik Colony Land as “the first of several steps to
exploit Aarey Milk Colony commercially by eventually
permitting residential or commercial buildings” is both
unwarranted false. In fact although the initial proposal had
included limited commercial development, the State Govt
while approving the allotment/user for the Metro Depot has
specifically disallowed any commercial user of the said land.
It is denied that there are no buildings or habitation in the
vicinity to necessitate/warrant a Metro Station. The
proposed Metro station is only about 170 meters away from
the main JVLR road and cannot be brought closer thereto in
view of the boundaries of the existing substation of M/s
Reliance Energy Ltd. (earlier BSES). This Metro station will
serve as a very important multi-modal interchange point to
service nearby densely populated areas of Powai, Andheri(E),
Chandiwali, Vikhroli, Kanjurmarg, Jogeshwari(E) and other
localities in the vicinity. The proposed station at Aarey will
also provide an interchange with the proposed Swami
Samarth Nagar-JVLR-SEEPZ-Kanjurmarg-Vikhroli (EEH)
metro corridor (Line-6). The Detailed Project Report of Line-
6, prepared by DMRC, provides for a station at SEEPZ Village
to provide an interchange with the Colaba-Bandra-Seepz
corridor (Line-3). I say that thte said Line-6 also provide for
interchange with other metro corridors: (i) Line 2 at Adarsh
Nagar (ii) Line 7 at JVLR (iii) Line 3 at SEEPZ Village (iv)
Line 4 at Kanjur Marg(W) and (v) Suburban Railways at
Kanjur Marg (W). The Multi Modal Interchange policy of
Government of India requires seamless interchange between
different modes of transport : Rail, Road or Para transit. The
station at Aarey alongwith SEEPZ Village station of Line-6
and interchange facilities with the road transport at this
location confirm to the Government of India’s policies on Multi
Modal Integrated MRT network to bring extensive benefit to
the commuters of public transport.

4. With reference to para 4(xv) and (xvi) I say that
not only has the MMRCL undertaken to transplant as many of
the affected trees as possible and also undertake multiple

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compensatory tree plantation for all trees that had to be
cut/removed and count not be transplanted, but MMRCL has
also undertaken that it will plant an equivalent number of
trees at the station sites after the station work had been
completed. In fact this Hon’ble Court had on the aforesaid
basis and having regard to the urgent need for such Public
Transport facilities vacated its earlier order and permitted
this Respondent to cut trees proceed with the Line 3
construction works. The Aarey Metro Depot has been
realigned/planned to exclude two largely wooded areas having
trees to affect the most minimal number of trees.

5. With reference to para 4(xvii) I say that the comparison
of depot sizes [for other Metro Rail lines] is inapposite. I say
that the size of the car depot required is dependent on the
length of the metro corridor, length of the individual train and
also the planned frequency of the train services, the shape
and orientation of the land plot apart from other
miscellaneous technical considerations and topographical
constraints. I say that the Line-3 trains are of 8 coach train of
total length of about 179 meters. I say that the Delhi Metro
Rail Corporation Ltd., New Delhi (DMRC), which is the
pioneer Metro company in India with extensive experience in
planning, construction and operating metro services in the
country, has been instrumental in preparing Detailed Project
Reports of various metro projects in different cities in India.
The Delhi Metro Rail Corporation Ltd. Has averaged areas of
their different depots in Delhi and assessed that an average of
0.96 hectare of depot area would be required per running
kilometer of Metro Line. By this statistical assessment, the
depot area of 29.79 Ha is not excessive for a 33.5 Km. Line 3
corridor. The said area of 29.79 Ha includes the depot, the
main line that connects the depot to the underground
corridor and a station.”

29. In para 6 of this affidavit, it is stated that there was a

Government of India Enterprise engaged and acting under the

aegis of Indian Railways, to prepare a detailed project report. It

proposed 34.3 hectares of land at the subject location in the

Aarey Milk Colony. Subsequently, the Technical Committee

formed by the Government of Maharashtra had considered all the

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options for construction of the car depot at various locations in

Mumbai. The matter has been finally considered by officers of the

Urban Development Department of the Government of

Maharashtra and by the Board of this respondent to arrive at the

present plans. During this process, each and every possibility has

been fully considered and all possible steps have been taken to

minimise and mitigate any environmental damages to the Aarey

Milk Colony area.

30. As set out above, after the affidavit on behalf of the

Government of Maharashtra, while reiterating the stand in the

earlier affidavit, it is denied that there is no attempt made to

obtain the Kanjur Marg land. It is not correct that the civil

application moved in the other petition was deliberately not

pressed or intentionally withdrawn. It is stated that on account of

the expediency and to avoid delay, the land at Aarey Milk Colony

has been identified. Then, this court passed an order on 20 th

March, 2018, which reads as under:-

“1. Today when these matters are listed and with the
understanding given to the parties that they would be
disposed off finally, Mr.Chinoy, learned Senior Advocate,
appearing on behalf of fourth respondent, tenders additional
affidavit seeking to place on record some factual aspects and
which escaped the attention of fourth respondent at the stage
of filing of earlier affidavit. He prays that in the larger
interest of justice and not to cause any prejudice to the
parties on facts, this affidavit may be taken on record though
it is filed belatedly. We accept this affidavit and it is taken on
record.

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2. A copy of this affidavit has been given to Mr.Dwarkadas,
learned Senior Advocate, appearing for petitioners. He would
submit that the petitioners would like to peruse the said
affidavit and its annexuress and thereafter respond.

3. Since the petitioners are taken by surprise by such an
affidavit being introduced at this stage, primarily to
accommodate them, we place this matter on 9th April 2018.

4. We refuse the request made by Mr.Patki, learned AGP to
file additional affidavit of the State, for, then there is no end to
the pleadings and additional pleadings. This would mean a
matter which raised the issue of larger public interest, will not
be decided in the coming future and would remain pending.
The request made by the state Government’s advocate is
refused. We grant liberty to the petitioners alone to place
response in writing by way of affidavit to this additional
affidavit of fourth respondent. The same shall be filed on or
before 2nd April 2018 with advance copy to the advocates for
respondents. Stand over to 9th April, 2018.”

31. Pursuant to that order, the additional affidavits tendered by

the State Government and respondent no. 4 were taken on record

and the petitioners were permitted to file a rejoinder. They filed

this rejoinder to deal with the additional affidavit of respondent

no. 4. In that, while reiterating their contentions, it is stated that

in the year 1969, when Aarey Milk Colony was handed over to the

Sanjay Gandhi National Park, many of the said establishments

were already in existence and entire area of Aarey, along with all

these establishments, was handed over to Forest Department/

Sanjay Gandhi National Park Management. This fact is recorded

in the Forest Development Corporation of Maharashtra Ltd.

Letter dated 22nd July, 1980. It is stated that main car depot is

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completely uninhabited. This can never be taken to be a

developed part or portion. The open lands (grasslands) are low

lying areas and form a part of the critical flood plain of the Mithi

river. The said fact is also recorded in the District Collector’s

letter dated 21st November, 2012. Thus, one arm of the State

identifies this land or plot to be critically located in the Eco-

sensitive Zone, whereas, the Department of Urban Development

asserts to the contrary. It is in these circumstances, it is stated

that the explanation for changing the location from Kanjur Marg

to Aarey Milk Colony is not bonafide. That should be rejected and

the car depot be moved out of the Aarey Milk Colony area. For

these reasons, it is stated that an alternate plot of 20.82 hectares

should be identified for location of metro car depot and which

ought to be other than the subject area. The petitioners also

presented a rejoinder affidavit to the first respondent’s additional

affidavit dated 20th March, 2018. There as well, the above

contentions have been reiterated. The additional affidavit of the

respondents, based on the order passed by this court on 17 th

April, 2018, purports to explain the documents compiled in

compilation of documents tendered and handed over by the

petitioners’ senior counsel during the course of arguments. It is

stated that one document at Sr. No. 4 is the office translation of

Marathi letter dated 21st July, 2017 of the Deputy Director of

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Town Planning. In that, a detailed reference is made to the

petitioners’ objections and it is claimed that the Municipal

Corporation of Greater Mumbai has objected to and disapproved

the proposed change in land use at Aarey from No-Development

Zone to metro car depot. It is stated that in the petitioners’

compilation of documents, the document at page 42 in Marathi

with English translation thereof at page 179 records that the

Municipal Corporation of Greater Mumbai has disallowed this

alteration in the meeting of Improvement Committee held on 7th

June, 2017. The decision of this committee was communicated on

30th June, 2017. Prior thereto, on 14 th June, 2017, the

Improvement Committee referred to its meeting dated 7 th June,

2017, in which, it disallowed this alteration. Thus, this position is

not controverted and the Municipal Corporation is opposed to any

change of user. This and other aspects are highlighted with

reference to each and every document in the compilation of

documents and finally, it is sought to be explained by reference to

a document at Sr. No. 30 of the compilation of documents, that is a

Marathi letter dated 21st November, 2012 with office translation.

That is addressed by the Collector, Mumbai Suburban District to

the Additional Chief Secretary, Revenue and Forest Department

with respect to Aarey Car Depot, in which, it is stated that the

land is full of paragrass and big forest trees, that the bed of the

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Mithi River is situated on Eastern and Southern sides and that

the land is naturally wet (daldal). Thus, this is a forest as per the

dictionary and natural meaning. The fourth respondent finally

tendered an affidavit on 24th April, 2018, in which, it is alleged

that the petitioners are misrepresenting and misleading this

court by not providing correct statement of facts. The Marathi

documents are incorrectly translated. The Improvement

Committee is not the Municipal Corporation of Greater Mumbai.

The Municipal Corporation of Greater Mumbai has not

disapproved of the alteration or change. Thus, number of

documents in the compilation of documents tendered by the

petitioners do not indicate the accurate factual position. For

these reasons, it is submitted that the petition be dismissed.

32. On the above materials, we have heard the counsel

appearing for the parties, including the learned Advocate

General.

33. Mr. Janak Dwarkadas learned senior counsel appearing for

the petitioners would submit that this petition is filed bonafide by

the petitioners for protection and preservation of Aarey land and

forest. The petitioners have clarified in the writ petition itself as

to how their concern and anxiety is that such a pristine

uninhabited forest land, which is a green lung of Mumbai near

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floor plain of Mithi River, covering Eco-sensitive Zone should not

be damaged and destroyed. The petitioners have filed such a

petition in the bonafide belief that forests and greens are

eventually the gifts of nature. These natural gifts benefit human

beings to an enormous extent. They help us to breath clean and

fresh air. They protect health of the human beings from serious

ailments and diseases by minimising ill effects of pollution. Mr.

Dwarkadas submits that when metropolitan cities are congested,

have a huge traffic in flow, unregulated and uncontrolled

construction activities, then, that is bound to cause pollution. In a

city like Mumbai, everybody is a witness to the damage and

destruction of environment and ecology. It is, therefore, the duty

of human beings to protect the environment, particularly after

Chapter IVA, titled as “Fundamental Duties”, has been inserted in

the Constitution of India. It is the duty of every citizen of India to

protect and improve the natural environment, including forests,

lakes, rivers and wildlife and to have compassion for living

creatures. Mr. Dwarkadas submits that plants, trees, birds and

animals cannot speak and it is, therefore, the duty of the human

beings to speak for them. They are crying for protection and

preservation. It is, therefore, the obligation and duty of the

human beings to return their kindness and favour by moving

such cases before a court of law. Therefore, this litigation should

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not be understood as espousing the cause of any vested interest

or a blind opposition to improving and modernising public

transport system in metro cities. The attempt of the petitioners is

to demonstrate as to how there is competing or rival interest and

the perennial tussle as to what is paramount, namely,

development of environment and ecology. The courts have been

consistently leaning in favour of protection and preservation of

environment and ecology. The principle of sustainable

development should, as in all cases, guide us in resolving the issue

raised in this petition, according to Mr.Dwarkadas. Mr.

Dwarkadas contends that the attempt should be to harmonise and

balance the needs as in this case. If modernising public transport

system comes at the cost of destruction of ecology and

environment, then, this court must be in favour of safeguarding

and protecting the environment. By that, this court will be

reminding the State of its obligation and duty as set out in the

directive principles of State policy (Article 48-A of the

Constitution of India). Once the State is in a position of a

guardian and Trustee of forests, natural resources, lakes and

open spaces and they are vesting in it for the use and enjoyment

of the public, then, according to Mr. Dwarkadas, the doctrine of

public trust can be safely invoked in this case to issue the

directions as prayed.

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34. Mr. Dwarkadas would submit that the petitioners are,

therefore, guided by the above principles and they have

absolutely no ulterior motives nor is any challenge raised by the

respondents in that behalf. As far as Notification dated 24th

August, 2017 is concerned, Mr. Dwarkadas would submit that the

notification brings in changes in the character of the Development

Plan-1991. This notification has been issued to modify the

reservation in the existing 1991-Development Plan in respect of

the Aarey land from the No-Development Zone to Metro Car

Depot/Workshop, allied facilities and Commercial (C-1) Zone. The

power to do so is to be found in the MRTP Act. However, while

exercising that power, the State cannot lose sight of the object and

purpose of such an enactment. The obvious purpose is not to

permit and allow uncontrolled and unregulated development and

construction activities. Such construction activity, which would

totally destroy the green cover or lungs, can never be permitted

by the State Government, even if that is being carried out by an

enterprise or a company or authority controlled by it. The State

has a larger obligation to the public and when there is a conflict

between public interest and benefits and advantages accruing to a

statutory corporation like respondent no. 4, then, public interest

must prevail. Mr. Dwarkadas submits that a change or

modification, whereby a No-Development Zone is converted into a

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Commercial Zone necessarily means commercial and private

motives have intervened. There will not be just a car-shed, as

projected, but what the vague expression and general words

employed in the notification convey is that in the garb of allied

facilities, a systematic commercial activity would be undertaken.

There would be construction of buildings in the garb of car depot.

Thereafter, the portions or parts of such buildings and areas

would be put to commercial use. From that, the fourth

respondent will derive huge pecuniary benefits for itself. All this

will come at the cost of environment and ecology. This is a huge

price, which will have to be paid by the residents of Mumbai. That

is how a change in the character of the development plan of entire

D-East Ward is the result of this notification. Now, already

depleted forest cover in and around the Mumbai would be further

reduced and decreased. If a National Park is also not safe from

encroachment by human beings, then, all the more the area

surrounding such park would be taken over. If that is allowed to

be built upon, then, there is a genuine and real apprehension that

the forest cover will also be encroached and taken over. In these

circumstances, it is urged that this is a major modification. Mr.

Dwarkadas would remind us that Sanjay Gandhi National Park

acts like a lung of Mumbai and it is not just those residing in the

D-East Ward, but all over Mumbai city and Mumbai Suburban

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Districts, who visit this National Park and enjoy its green cover so

as to minimise the ill effects to their health and wellbeing. In

these circumstances, we should not allow such substantial

changes being carried out, that too at the behest of respondent no.

4. It is submitted by him that section 37(1AA) of the MRTP Act

must be read together with section 22A of the said Act. A change,

which does not alter the basic features or the identity of the plan

is permitted by section 37. An elimination of the green zone

would be a substantial modification that changes the character of

the development plan and hence, it is not permissible under

section 37 of the MRTP Act.

35. Alternatively and without prejudice, Mr. Dwarkadas

submits that the changes proposed under this notification of 24 th

August, 2017 falls within the definition of the expression

“substantial modification” under section 22A of the MRTP Act. He

would submit, therefore, that the impugned notification is

contrary to law and should be quashed and set aside.

36. The next argument of Mr. Dwarkadas is that this

notification has been issued on the recommendation of the Deputy

Director of Town Planning and all his recommendations are

illegal. The Deputy Director of Town Planning has referred to the

areas outside K-East Ward. He has ignored other options for

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establishment of metro car-shed as also alternate sites, observing

that there is no need for him to consider them. Then, he has not

taken any opinion of the Forest Department while making

favourable recommendations. He has ignored a vital objection

that the metro car depot comes under flood plain of Mithi River.

He has ignored the fact that the rest of Aarey Colony is not part of

the Mithi River floor plain. Mr. Dwarkadas would submit that in

these circumstances, the power to modify or alter or change the

development plan proposal is vitiated by total non application of

mind to relevant and germane factors and considerations. If the

power is exercised irrationally or by ignoring and brushing aside

relevant and germane factors, then, such exercise can safely be

termed as arbitrary, unreasonable, unfair and violative of Article

14 of the Constitution of India. Mr. Dwarkadas submits that the

right to life and liberty guaranteed by Article 21 of the

Constitution of India includes the right to clean and fresh air. In

other words, protection of environment and ecology are inherent

and implicit in the right guaranteed by Article 21 of the

Constitution of India. The mandate of the above Articles is

contravened when respondent no. 2 has opined that metro car-

shed can be set up in Aarey Milk Colony. His recommendations

have been accepted by the State Government and it has issued the

impugned notification. Hence, respondent nos. 1, 2 and 4

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together have violated the constitutional mandate of equality

before law and equal protection of laws.

37. As far as the second challenge in the petition and to the

Notification dated 9th November, 2017, Mr. Dwarkadas would

submit that this notification is published for the land not

recognised under the Development Control Regulations, 1991.

The metro car depot is proposed for the first time under the Draft

Development Control Regulations, 2034, which are notified, but

are not final. Therefore, the fourth respondent does not have the

right to carry out development until the final Development

Control Regulations, 2034 are notified. In that, Mr.Dwarkadas

relied upon section 2(9A) of the MRTP Act.

38. Mr. Dwarkadas then submits that there is no

record/document evidencing a purported inquiry or consultation

made with the Director of Town Planning, Maharashtra State,

Pune, prior to issuing the 2nd impugned notification, although

referred to in the notification. Mr. Dwarkadas would submit that

in fact no such inquiry or consultation was made and the

notification has been published without any application of mind in

breach of the provisions of section 31(1) and 31(3) of the MRTP

Act. This notification does not have an accompanying plan.

Although the notification refers to a part final development plan,

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which is to be kept open for inspection by the general public, no

such plan is infact prepared along with this notification. No plan

was made available when inspection was sought from offices of

Town Planning Department and the Municipal Corporation of

Greater Mumbai. The petitioners’ advocate, by their letter dated

7th March, 2018, addressed to the Government Pleader appearing

for respondent nos. 1 and 2, inter alia, sought inspection of the

said plan. However, no response to the said letter is received till

date. This notification is issued in complete ignorance and

disregard to the provisions of section 22 of the MRTP Act.

39. Mr. Dwarkadas has taken us through the relevant

provisions of the Constitution of India to submit that the State or

Municipalities cannot make a law, which runs contrary to the law

enacted by the Parliament. Even though urban forestry is

covered under the 12th Schedule to the Constitution, no law, which

results in destruction or non-preservation of urban forest and

also runs counter to the enactments like the Forest

(Conservation) Act, 1980, can be enacted.

40. Mr. Dwarkadas, in his arguments on the point that Aarey

Milk Colony is a forest, would submit that no development is

permitted in a forest. Mr. Dwarkadas elaborated this contention

by submitting that the term “forest” has not been defined in the

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Forest (Conservation) Act, 1980. However, in the judgment of the

Hon’ble Supreme Court in the case of T. N. Godavarman

Thirumulpad vs. Union of India and Ors.1, there is a reference to

the definition of the term “forest” appearing in section 2 of this

Act and there, the Hon’ble Supreme Court has given an expansive

meaning to that phrase. It is submitted that the Aarey Milk

Colony is pristine uninhabited forest land and falls under the

definition of “forest”. It has been recorded as a “forest” by the

Forest Development Corporation of Maharashtra Limited by their

letter dated 22nd July, 1980. There is also a reference to this in

the Sanjay Gandhi National Park Management Plan for the period

2013-14 to 2022-23 and that plan states that the Revenue land

transferred from Aarey Milk Colony forms a part of Protected

Forest. Though it is styled as unclassified forest, yet, being

termed as a forest is enough for the purposes of the petitioners

and they can safely urge that if the subject area is a forested area

full of quagmire and situated in the bed of Mithi River, then, the

above apprehensions of the petitioners have reasonable basis.

41. Mr. Dwarkadas submits that the petitioners have challenged

the impugned notifications permitting the use of forest land for

metro car depot for that is in violation of section 2 of the Forest

1 (1997) 2 SCC 267

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(Conservation) Act, 1980. It is clear from the language of section

2 that there is a restriction on de-reservation of forest or use of

forest land for non-forest purpose. It is evident by the non-

obstante clause in that section that it is only a State Government

or other authority, who can undertake a non-forest activity, but

that has to be with prior approval of the Central Government.

Further, the State Government in this case is not making or

constructing the metro car-shed. The land is being developed for

the metro car-shed by the fourth respondent, which is neither the

Central Government nor a Authority, who has stepped in with

prior approval of the Central Government. Mr. Dwarkadas would

submit that this fourth respondent is a Special Purpose Vehicle

set up for the purpose of developing the Metro-III Line. The

fourth respondent is owned in the ratio of 50-50 by the State of

Maharashtra and the Union of India. The handing over of Aarey

forest land to the fourth respondent for the project is

impermissible without prior permission of the Central

Government. Mr. Dwarkadas placed reliance upon a letter dated

20th November, 2015 addressed to the fourth respondent and that

clearly refers to a prior approval, but no such prior clearance or

approval has been taken.

42. Then, it is stated that there is a very pertinent clarification

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issued on 5th December, 2017 by the Ministry of Forest, Union of

India that the Forest (Conservation) Act, 1980 and the Wildlife

Protection Act, 1972 will be applicable for diversion of forest land

for non-forest purpose irrespective of ownership of the forest land

and even forest land owned by the State cannot be acquired and

transferred to Railways under section 11(a) of the Railways Act,

1989 without following the provisions of the Forest

(Conservation) Act, 1980 and the Wildlife Protection Act, 1972.

In these circumstances, it is evident that allowing development in

a forest contravenes at least two parliamentary statutes in the

field.

43. It is then claimed that even with regard to the change or

modification in the reservation, that could not have been effected

without prior no-objection certificate of the Forest Department. In

the instant case, without obtaining such no-objection certificate,

the Urban Development Department, has, in contravention of the

provisions of the prevailing laws, changed the reservation of land

under the impugned notifications and the fourth respondent has

hastily commenced work thereon. It is in these circumstances, it

is submitted that the first respondent was bound to seek prior

permission under the Forest (Conservation) Act, 1980 before

passing any order directing the change of Aarey forest land to be

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used for the non-forest purpose. A reference is also made to the

Government Resolution dated 23rd August, 2017.

44. Mr. Dwarkadas submits that no permission under the

Forest (Conservation) Act, 1980 was sought prior to issuance of

the impugned notifications. In these circumstances, the

conversion of land, which was in No-Development Zone for the use

of metro car-depot is illegal and ought to be set aside.

45. It is stated that the Aarey land would come within the

meaning of forest and the precautionary principles laid down by

the Hon’ble Supreme Court in the case of M. C. Mehta vs. the

Union of India and Ors.2. Hence, the impugned notifications be set

aside. They are contrary to the provisions of the Forest

(Conservation) Act, 1980.

46. It is submitted that the metro administration has not

acquired the Aarey land under the provisions of the Metro Act. In

fact, it is the Maharashtra Government, who has voluntarily

handed over their own dairy land free of cost to the Mumbai

Metro Rail Corporation Limited (MMRCL) in lieu of its financial

contribution towards cost of Metro-III project. It is in these

circumstances that the fourth respondent cannot claim the

2 (2004) 12 SCC 118

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benefit or protection of section 10(4) of the Metro Rail

(Construction of Works) Act, 1978.

47. Mr. Dwarkadas has invited our attention to the proceedings

before the National Green Tribunal regarding Aarey land and

relied upon its orders so as to urge that the non-forest work

cannot proceed without the said tribunal deciding the dispute.

Now, without waiting for the outcome of the adjudication before

the National Green Tribunal, the work has been carried out and

even beyond the three hectares land, as permitted in the National

Green Tribunal’s order. It is in these circumstances that the

fourth respondent could not have misled either the authorities or

this court that the status quo order of the National Green

Tribunal does not pertain to the Aarey land nor can they

commence any non-forest activity in this manner. Mr. Dwarkadas

has handed over a note of his propositions on 27 th April, 2018.

That is essentially on the additional affidavit filed on 24 th April,

2018 by the fourth respondent. Mr. Dwarkadas submits that the

petitioners have commented upon the fourth respondent’s stand

before the National Green Tribunal and other issues highlighted

in the fourth respondent’s affidavits filed in this petition. For all

these reasons, Mr. Dwarkadas would submit that the petition be

allowed.

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48. Mr. Kumbhakoni learned Advocate General appearing on

behalf of the respondent nos. 1 and 2, after tendering a synopsis,

submited that there is no substance in any of the contentions of

Mr. Dwarkadas. On 1st July, 2009, a notice was published in the

Official Gazette, declaring the intention of the Municipal

Corporation to revise the sanctioned Development Plan for

Greater Mumbai. On 25th February, 2015, the Municipal

Corporation has prepared a Draft Revised Development Plan and

after obtaining sanction from the General Body, published it in

the Official Gazette declaring the intention of the Municipal

Corporation to revise the sanctioned Development Plan for

Greater Mumbai. On 25th February, 2015, the Municipal

Corporation has prepared Draft Revised Development Plan and

after obtaining sanction from the General Body, published notice

in the Government Gazette under sub-section (1) of section 26 of

the MRTP Act inviting suggestions and objections from general

public. On 23rd April, 2015, this draft was republished and in the

draft plan, the property/land was reserved for Metro/Mono Rail

Car-Shed (RT3.1). The notice inviting suggestions/objections was

issued under section 26(1) of the MRTP Act and after the

suggestions and objections were considered, a report was

submitted along with recommendations to the Municipal

Corporation under section 28(3) of the MRTP Act on 6 th March,

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2017. The Municipal Corporation sanctioned the Draft

Development Plan with modifications or changes carried out by

the Planning committee subject to the modifications suggested by

the Municipal Corporation. The Municipal Corporation, while

sanctioning the Draft Development Plan for the property in issue,

made modifications vide Sr. No. 266 to the effect that the land

proposed to be reserved for metro/mono car-shed be included in

Green Zone.

49. On 2nd August, 2017, the Municipal Corporation submitted

the Draft Development Plan to the State Government for sanction

under section 30(1) of the MRTP Act and on 9 th November, 2017,

this Draft Development Plan has been sanctioned by the State

Government.

50. It is submitted by Mr. Kumbhakoni that in view of the above,

it is evident that the second proviso to section 31(1) of the MRTP

Act does not apply in this case. Neither eventualities, as set out

therein, come into play. After inviting our attention to sections

26, 28 and 31(1), the learned Advocate General would submit

that there is no illegality or infirmity in the notification dated 9 th

November, 2017. It is in these circumstances that the first

notification, which is also challenged, would not survive. That

deletes 33 hectares at Aarey from No-Development Zone and

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reserves it for metro car depot and allied facilities in the

Development Plan-1991. Mr. Kumbhakoni was at pains to point

out that the property in issue is not a part of the Sanjay Gandhi

National Park. Without prejudice to this submission, he would

submit that only a proposal for inclusion of the property in issue

in the Sanjay Gandhi National Park is made. Mr. Kumbhakoni

relying upon the note prepared at page 7, handed over by the

petitioners, urged that the petitioners themselves admits that

prior to the final notification dated 6th December, 2016, a draft

notification issued by the Ministry of Environment and Forest

dated 22nd January, 2016 proposed to declare the entire area of

Aarey Colony as Eco-sensitive Zone. However, that has not been

accepted as is evident from the final notification dated 6 th

December, 2016 of the Ministry of Environment and Forest. In

these circumstances, it is futile to urge that the subject area is a

forest. It is neither forest nor it falls in Eco-sensitive Zone.

Mr.Kumbhakoni has taken us through the observations of this

court made in its order dated 5th May, 2017 in Writ Petition No.

814 of 2017 to urge that metro project is a very vital project. It is

a project of considerable public importance for a metropolitan city

like Mumbai. Mr. Kumbhakoni relies upon para 16 of this order to

submit that there is absolutely no merit in the writ petition and it

should be dismissed.

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51. Mr. Chinoy learned senior counsel appearing for the fourth

respondent, in addition to adopting the arguments of

Mr.Kumbhakoni, would submit that the petitioners have not

challenged the notification of the Ministry of Environment and

Forest dated 6th December, 2016. In the absence of

comprehensive pleadings and challenge, the petitioners cannot

request this court to inquire into the issue whether the subject

area is a forest or not. In any event, these are highly disputed

factual matters. A detailed inquiry in such matters cannot be

held by this court in its limited jurisdiction under Article 226 of

the Constitution of India. More so, when a like minded public

spirited body has approached the National Green Tribunal and

the issue is pending. This court cannot be called upon indirectly

to hold an inquiry and which in any event can be held only by

experts. Once the experts have decided not to declare the area as

forest, but merely declared it to be an Eco-sensitive Zone,

wherefrom as well, the portion carved out for a metro car-shed is

excluded, then, all the more this writ petition should be

dismissed. Both counsel have laid great emphasis on the

notification, copy of which is annexed to the affidavit in reply of

the Government of Maharashtra. Hence, it is submitted that this

writ petition be dismissed.

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52. For properly appreciating the rival contentions, a reference

will have to be made to the two notifications. The first one is

dated 24th August, 2017. A copy of the same is at page 185 of the

paper book (Exhibit ‘1’ to the affidavit in reply of respondent nos.

1 and 2. This notification reads as under:-

URBAN DEVELOPMENT DEPARTMENT

Mantralaya, Mumbai 400 032, dated 24th August 2017

NOTIFICATION

THE MAHARASHTRA REGIONAL AND TOWN PLANNING
ACT, 1966.

No.TPB, 4312/92/(Camp)/CR-39/2012/UD-11.- Whereas the
Revised Development Plan of “K/E” ward of Greater Mumbai
(hereinafter referred to as “the Said Development Plan”) has
been sanctioned by the Government in the Urban
Development Department, under section 31(1) of the
Maharashtra Regional and Town Planing Act, 1966
(hereinafter referred to as “the said Act”) vide Notification
No.TPB.4392/4716/CR-181/92/UD-11, dated 12th November
1992, so as to come into force with effect from the 29 th
December 1992;

And whereas, the Mumbai Metropolitan Region
Development Authority is implementing Mumbai Metro
Master plan through Special purpose Vehicle Company
“Mumbai Metro Corporation Limited (hereinafter referred to
as “the said Authority”);

And whereas, the said Authority has requested that the
land admeasuring about 33 Hectare, bearing CTS No.9(pt.),
10(pt.), 11(pt.), 12 (pt.) 13(pt.) of village Prajapur and CTS
No.2(Pt.) of Village Vyravali (hereinafter referred to as “the
said land”) is required for Aarey Car Depot for Metro line-III,
Colaba-Bandra Corridor and also requested to change the use
of the said land in the said Development plan from No
Development Zone to Metro Car Depot/Workshop, allied
facilities and Commercial (C-1) Zone;

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And whereas, the Agriculture, Animal Husbandry,
Dairy Development and Fisheries Department, Government of
Maharashtra, vide memorandum dated 5th March 2014, has
accorded sanction to transfer the land in their possession
bearing CTS No.9(pt.), 10(pt.), 11(pt.), 12 (pt.), 13(pt.) of
village Prajapur admeasuring about 29.79 Hectare for Aarey
Car Depot and also accorded sanction to transfer additional
3.00 Hectare land from CTS No.12(pt.) and 13(pt.) vide
Government Resolution dated 16th March 2016 for the same
purpose;

And whereas, in the meantime the State Government
has constituted Committee vide Government Resolution
No.MRD-3315/CR-23/UD-7, dated 11th March 2015 under the
Chairmanship of the Metropolitan Commissioner, Mumbai
Metropolitan Region Development Authority regarding the
proposed Car Depot on the said land to study the alternatives
for locating Car Depot, if possible and to minimize damage to
the trees on the site if suitable alternative is not found and
also to suggest mitigation measures to minimize
environmental damages;

And whereas, the Committee has submitted report with
their recommendations to the State Government and the said
Authority vide letter dated 1st April 2016 has intimated to the
State Government that the alternative site is not available
and the said land can be utilized for Car Depot by saving more
than 50% of trees and plantation will be undertaken as per
statutory requirements of 1:3 trees for every tree cut as per
Committee’s recommendations and requested to sanction Car
Depot on the said land;

And whereas, the State Government was of opinion that
in the public interest it is necessary to delete the said land
from the No Development Zone in the said Plan and to reserve
it for Metro Car Depot/Workshop, allied facilities and
Commercial (C-1) Zone. (hereinafter referred to as “the
proposed modification” and more specifically described in the
Schedule appended hereto);

And whereas, in exercise of the powers conferred under
Sub-section (1AA) of Section 37 of the said Act, Government
had issued Notice of even No.dated 29th December 2016 for
inviting suggestions/objections from the general public with
regard to “the proposed modification” as mentioned in the
Schedule appended to the said Notice and appointed the Dy.
Director of Town Planning, Gr. Mumbai as the officer
(hereinafter referred to as “the said Officer”) to submit a

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Report on the suggestions/objections received in respect of
the proposed modification to the Government after giving
hearing to the concerned persons;

And whereas, the said Notice dated 29th December 2016
was published in the Maharashtra Government Gazette
(Extra-Ordinary Gazette) dated 29th December 2016 and the
said Officer has submitted his report vide letter dated 21st
July 2017 through the Director of Town Planning,
Maharashtra State, after completing the legal procedure
stipulated under Section 37(1AA) of the said Act;

And whereas, the Government finds it expedient to
delete the said land from the No Development Zone in the said
Plan and to reserve it for Metro Car Depot/Work shop, allied
facilities.(hereinafter referred to as “the modification”);

And whereas, after considering the above stated Report
of the said Officer and after consulting the Director of Town
Planning, Maharashtra State, Pune, the Government is of the
opinion that the modification is required to be sanctioned with
some changes.

Now, therefore, in exercise of the powers conferred
upon it under Section 37(1AA)(c) of the said Act, the
Government hereby :-

(A) Sanctions the said modification proposal with
conditions as follows :-

Sanctioned Modification

“The land admeasuring about 33 Hectare bearing CTS
No.9(pt.), 10(pt.), 11(pt.), 12(pt.), 13(pt.) of village Prajapur
and CTS No.2(pt.) of Village Vyravali (as more particularly
shown on the part plan attached herewith) is deleted from
“No Development Zone” and is reserved for reservation of
“Metro Car Depot/Workshop, allied users”. The Appropriate
Authority for development of the said reservation shall be
“Mumbai Metro Rail Corporation Limited.”

Conditions :-

(1) Open area shown on the Part Plan of proposed
modification shall be kept open and the it shall be binding to
conserve the trees on part of the said land permanently.

(2) To mitigate the environmental impact to Aarey

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Colony following measures shall be undertaken :-

(i) Ground water recharging arrangement to
be provided in the Depot.

(ii) Plantation of Trees as per recommendation
of the Committee.

(iii) Trees above 10 feet height of native variety
only be planted.

(iv) Plantation to be undertaken by professional
agencies only.

(v) Annual Audit of plantation by third party
and reports posted on the Company’s
website.

(vi) MMRC to maintain these trees for 5 years.

(3) Total 33 hectors of land shall be used only for
Metro Car Depot/Workshop, allied users only, Commercial
user shall not be permitted.

(4) Before development of the land for the purpose of
Car Shed, Mumbai Metro Rail Corporation Limited shall
obtain necessary permissions from concerned Department as
required under the all other prevailing laws.

(5) The character of overall construction shall be such
that the under ground water table shall not get disturbed.

(B) Fixes the date of publication of this
Notification in the Official Gazette as the date of coming into
force of this modification.

(C) Directs the Municipal Corporation of
Greater Mumbai that, in the Schedule of Modifications
appended to the Notification sanctioning the said
Development Plan, after the last entry a new entry as per
(A) above shall be added.

The part plan showing the said modification shall be
kept open for inspection by the general public during the
office hours on all working days for period of one month in the
office of the Chief Engineer (Development Plan), Greater
Mumbai Municipal Corporation.

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This Notification shall also be published on the
Government website-www.maharashtra.gov.in.

By order and in the name of the Governor of Maharashtra,

KISHOR D. GIROLLA,
Under Secretary to Government.

53. Then, the second notification dated 9th November, 2017, copy

of which is at page 190 (Exhibit ‘3’) needs to be set out. That

reads as under:-

URBAN DEVELOPMENT DEPARTMENT

Mantralaya, Mumbai 400 032, dated 9th November 2017

NOTIFICATION

MAHARASHTRA REGIONAL AND TOWN PLANNING ACT,
1966.

No.TPB.4317/629/CR-118/2017/UD-11.- Whereas, the
Municipal Corporation of Greater Mumbai is the Planning
Authority for jurisdiction of Greater Mumbai (hereinafter
referred to as “the said Corporation”) as per the provisions of
the Maharashtra Regional and Town Planning Act, 1966
(hereinafter refer as “the said Act”). The first Development
Plan prepared by the said Corporation, was sanctioned in the
year 1964-1967. Thereafter, the said Corporation revised the
first Development Plan as per provisions of the said Act, the
said Revised Development Plan was sanctioned by State
Government in the year 1991-1994. The last part of said
Revised Development Plan was sanctioned on 4th March 1994
and has come into force accordingly;

And whereas, the said Corporation vide their
Resolution No.767, dated 20th October 2008 declared their
intention to revise the Sanctioned Revised Development Plan
of Greater Mumbai within its jurisdiction as laid down under
section 38 read with section 23(1) of the said Act.

Accordingly, notice to that effect, was published in the Official
Government Gazette on 1st July 2009. Thereafter the survey
of Existing Land Use of the entire area within the jurisdiction
of the said Corporation was carried out as laid down under

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Section 25 of the said Act and the Existing Land Use maps
were prepared;

And whereas, the said Corporation had prepared the
Draft Revised Development Plan along with Development
Control Regulations and after obtaining sanction from
General Body, vide Resolution No.1195, dated 23rd February
2015, published a Notice in the Maharashtra Government
Gazette, dated 25th February 2015, under sub-section (1) of
Section 26 of the said Act for inviting suggestions/objections
from general public on the Draft Revised Development Plan;

And whereas, the suggestions/objections received by
the said Corporation in respect of errors in Draft Revised
Development Plan and representations from organization,
general public, members of Legislative Assembly/Council, the
State Government has issued direction vide letter dated 23rd
April 2015, under section 154(1) of the said Act, to the said
Corporation to revamp/recast the draft Revised Development
Plan after examining all the errors on the basis of existing
site conditions and its merits by considering the planning and
legal issues and republish the Draft Revised Development
Plan after incorporating all the corrections for the purpose of
inviting suggestion/objections as per the provision of section
26 of the said Act;

And whereas, as per direction of the State Government,
the Draft Revised Development Plan along with Development
Control Regulations were prepared by the said Corporation
within the time extension granted under section 26(A) of the
said Act by the State Government and after obtaining
sanction from General Body, vide Resolution No.307, dated
27th May 2016, a notice for inviting suggestions/objections
from the general public as required under the provision of
sub-section (1) of section 26 of the said Act is republished in
the Maharashtra Government Gazette dated 27th May 2016
(hereinafter referred to as “the said Draft Development
Plan”);

And whereas, the Planning Committee constituted
under section 28(2) of the said Act, has considered the
suggestions and/or objections to the said Draft Development
Plan received within stipulated period by the said Corporation
and submitted their report along with their recommendations
to the said Corporation under section 28(3) of the said Act on
6th March 2017;

And whereas, after considering the report of the

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Planning Committee, the said Corporation vide its Resolution
No.393, dated 31st July 2017 has sanctioned the Draft
Development Plan with modifications or changes carried out
by Planning Committee subject to the modifications suggested
by the said Corporation, which were published under section
28(4) of the said Act and submitted in accordance with the
provisions of sub-section(1) of section 30 of the said Act, to
the State Government for sanction vide letter dated 2nd
August 2017.

And whereas, the Director of Town Planning vide his
Marathi letter dated 11th October 2017 and 26th October 2017
has submitted his Report on the part of the said Draft
Development Plan in respect of proposals of ‘S’ and ‘K/E’ ward
respectively;

And whereas, in accordance with sub-section (1) of
section 31 of the said Act, after making necessary enquiries
and after consulting the Director of Town Planning,
Maharashtra State, Pune, the State Government is of the
opinion that the part of the said Draft Development Plan in
respect of proposals of ‘K/E’ and ‘S’ ward with modifications
shown in Schedule, needs to be sanctioned.

Now, therefore, in exercise of the powers conferred by
sub-section (1) of section 31 of the said Act and of all other
powers enabling it on that behalf, the Government of
Maharashtra hereby :-

(a) Accords Sanction to the part of the said
Development Plan along with Modifications, as specified in
Schedule.

(b) Fixes the date, one month after publication of
this Notification in the Official Gazette to be the date on which
the said sanctioned Development Plan Part, called the Final
Development Plan Part, shall come into force.

The aforesaid Part Final Development Plan of Greater
Mumbai Sanctioned by the State Government vide this
Notification shall be kept open for inspection by the general
public during office hours on all working days for a period of
one month from the date of coming into force of this
Notification, at the office of the,-

(1) Chief Engineer (Development Plan), Municipal
Corporation of Greater Mumbai, Mahapalika Marg, Mumbai
400 001.

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(2) Deputy Director of Town Planning, Greater Mumbai,
‘E Block, ENSA Hutment, Azad Maidan, Mahapalika Marg,
Mumbai 400 001.

This Notification shall also be available on the
Government of Maharashtra
website :www.maharashtra.gov.in”

54. Relying upon these two notifications, it is urged on behalf of

the respondents that the Government of Maharashtra published

in the Maharashtra Government Gazette dated 29th December,

2016 and in Marathi and English newspaper on 4th January, 2017,

the notice, whereunder, objections and suggestions were invited

from the public. Those were with regard to the proposal to delete

the land, more particularly described in this notice, from the No-

Development Zone in the plan referred thereto and to reserve it

for metro car depot, workshop and allied facilities and

Commercial (C-1) Zone. This is thus the proposed modification.

55. The first notification dated 24th August, 2017 records that

there is a Revised Development Plan of K-East Ward of Greater

Mumbai. That has been sanctioned by the Government in the

Urban Development Department under section 31(1) of the MRTP

Act vide notification dated 12th November, 1992. It came into

effect from 29th December, 1992. Then, it is stated that the

MMRDA is implementing Mumbai Metro Master Plan through

Special Purpose Vehicle Company, namely, the fourth respondent.

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It requested that the land admeasuring about 33 hectare bearing

CTS Nos. 9 to 13 (part) of village Prajapur and CTS No. 2(part) of

village Vyravali is required for Aarey Car Depot for Metro Line-III,

Colaba-Bandra Corridor and also requested to change the use of

the said land in the said development plan from No-Development

Zone to Metro Car Depot/Workshop, allied facilities and

Commercial (C-1) Zone. Then, it refers to the sanction accorded

by another department, namely Agriculture, Animal Husbandary,

Dairy Development and Fisheries Department, Government of

Maharashtra to transfer the land in their possession of village

Prajapur admeasuring 29.79 hectares for Aarey Car Depot and

also accorded to transfer 3.00 hectares from village Vyravali from

CTS Nos. 12 (part) and 13 (part) for this purpose. The

Government Resolution dated 16th March, 2016 is referred. Then,

it is stated that there was a committee set up by the State

Government dated 11th March, 2015 under the Chairmanship of

the MMRDA regarding the proposed car depot to study the

alternatives for locating car depot, if possible and to minimize

damage to the trees on the site. If suitable alternative is not

found, also to suggest mitigation measures to minimize

environmental damages.

56. This committee submitted its report with their

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recommendations to the State Government by letter dated 1 st

April, 2016. It stated that alternative site is not available and the

said land can be utilised for car depot by saving more than 50% of

trees and plantation will be undertaken as per statutory

requirements. Then, the opinion of the State Government that it

is in public interest to delete this land from the No-Development

Zone and to reserve it for metro car depot/workshop as above, is

referred and then, the public notice under section 37(1AA) of the

MRTP Act is referred and pursuant thereto, the report of the

Director of Town Planning was received on 21st July, 2017. It is in

these circumstances that the Government sanctioned the

modification in terms of the powers conferred in it under section

37(1AA)(c) and that modification is sanctioned with conditions.

Each of these conditions have been carefully perused by us and

they denote that precaution is taken not to allow an

indiscriminate commercial user of the premises. Beyond the

metro car depot/workshop and allied facilities, no commercial

user is permitted on the total 33 hectares of land. Even open area

has to be maintained and it is binding on the authorities to

conserve the trees on the part of the said land permanently. To

mitigate the environmental impact, measures have been taken as

well. It is clear that before the development of the land, the

fourth respondent shall obtain necessary permissions from the

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concerned departments as required under other prevailing laws.

Finally, the character of overall construction shall be such that

underground water table shall not be disturbed.

57. On 9th November, 2017, the second notification came to be

published and that says in categorical terms that there was a

development plan styled as a First Development Plan prepared by

the Municipal Corporation of Greater Mumbai. That was

sanctioned in the year 1964-67. That development plan was

revised and that Revised Development Plan was sanctioned by

the State Government in the year 1991-94.

58. It is stated that the Municipal Corporation of Greater

Mumbai, vide their Resolution No. 767 dated 20 th October, 2008

declared the intention to revise the sanctioned Revised

Development Plan of Greater Mumbai within its jurisdiction, as

laid down under section 38 read with section 23(1) of the MRTP

Act. A notice to that effect was published in the Official Gazette on

1st July, 2009. Thereafter, the survey of the entire area within

the jurisdiction of the said Municipal Corporation was carried out

and maps were prepared. It is stated that the Municipal

Corporation prepared the Draft Revised Development Plan along

with Development Control Regulations and after obtaining

sanction from the General Body, vide Resolution No. 1195 dated

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23rd February, 2015, published a notice in Maharashtra

Government Gazette dated 25th February, 2015 under section

26(1) of the MRTP Act for inviting suggestions/objections of the

general public on the Draft Development Plan.

59. Then, it is clarified that suggestions and objections were

received by the said Municipal Corporation in respect of errors in

the Draft Development Plan and representations from

organisations, general public and members of the Legislative

Assembly/Council and the State Government issued direction

under section 154(1) of the MRTP Act on 23 rd April, 2015 to

revamp/recast this plan. That was after examination of the

errors on the basis of existing site conditions and its merits by

considering the planning and legal issues and republishing the

Draft Revised Development Plan after incorporating all the

corrections for the purpose of inviting suggestions/objections as

per the provisions of section 26 of the MRTP Act.

60. As per the directions of the State Government, the Draft

Revised Development Plan, along with Development Control

Regulations were prepared by the Municipal Corporation within

the time extension granted under section 26(1) of the MRTP Act

and after obtaining sanction from General Body, vide Resolution

No. 307, dated 27th May, 2016, a notice for inviting

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suggestions/objections from the general public, as required under

the provisions of sub-section (1) of section 26 of the MRTP Act

was republished in the Maharashtra Government Gazette dated

27th May, 2016. Then, there is a reference to the Planning

Committee constituted under section 28(2) of the MRTP Act,

which considered these suggestions/objections to the Draft

Development Plan. The Municipal Corporation considered all this

and submitted its report with its recommendations under section

28(3) of the MRTP Act on 6th March, 2017 sanctioning the Draft

Development Plan with modifications or changes carried out by

the Planning Committee and they were published under section

28(4) of the MRTP Act. They were submitted under section 30(1)

of the MRTP Act to the State Government for sanction vide letter

dated 2nd August, 2017.

61. A reference is made to the report of the Director of Town

Planning and his letter. Then, it is stated that the Government

exercised its powers under section 31(1) of the MRTP Act and

gave its sanction to the part of the Development Plan, along with

modifications specified in the Schedule and determined the date

on which this sanctioned part Development Plan shall come into

force.

62. The Schedule has been reproduced at pages 192 to 193 of

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the paper book and it reads as under:-

Schedule
(Accompaniment to the Government Notification
No.TPB.4317/629/CR-118/2017/UD-11
dated 9th November 2017

Modifications Sanctioned by the Government u/s.31(1) of
the Maharashtra Regional and Town Planning Act, 1966

Adminis Sanctio Details of Proposal Proposal Modification sanctioned
trative ned Land under under by the State Government
Ward Modific section section
ation 26 of the 30 of the
No. Act Act
(1) (2) (3) (4) (5) (6)
‘K/E’ K/E- CTS Metro/ Green Metro/Mono Car shed
Ward SM 1 No.9(Pt.), Mono Zone (RT3.1)
10(Pt.), Car with following
11(Pt.) Shed conditions:-

12(Pt.), (RT (1) Open area shown
13(Pt.) of 3.1) on the Part Plan of
village proposed modification
Prajapur shall be kept open and
and CTS it shall be binding to
No.2(Pt.) conserve the trees on
of Village part of the said land
Vyaravali permanently.
(Area
about 33 (2) To mitigate the
Hectare) environmental impact
to Aarey Colony
following measures
shall be undertaken :-

(i) Ground water
recharging
arrangements to be
provided in the Depot.

(ii) Plantation of Trees
as per
recommendation of the
Committee

(iii) Trees above 10
feet height of native
variety only be
planted.

(iv) Plantation to be
undertaken by
professional agencies
only.

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(v) Annual Audit of
plantation by third
party and reports
posted on the
Company’s website.

(vi) MMRC to maintain
these tress for 5 years.
(3) Total 33 hectares
of land shall be used
only for Metro Car
Depot/Workshop, allied
users only.
Commercial user shall
not be permitted.

(4)Before development
of the land for the
purpose of Car Shed,
Mumbai Metro Rail
Corporation Limited
shall obtain necessary
permissions from
concerned Department
as required under all
other prevailing laws.

(5) The character of
overall construction
‘S’ Ward S-SM 1 CTS Multipu Court shall be such that the
No.356 rpose Building under ground water
A/2 (Area Commu (RPU table shall not get
about nity 3.5) disturbed.
2098.75 Centre
Sq.mtr.) (RSA
of Village 2.1) Court Building (RPU
Hariyali 3.5)
Kannam
war
Nagar,
Vikhroli
(E)

By order and in the name of the Governor of Maharashtra,

KISHOR D. GIROLLA,
Under Secretary to Government.”

63. Before proceeding further, it would be necessary to refer to

some provisions of the Maharashtra Regional and Town Planning

Act, 1966. This is an Act to make provision for planning the

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development and use of land in Regions established for that

purpose and for the constitution of Regional Planning Boards

therefor; to make better provisions for the preparation of

Development Plans with a view to ensuring that town planning

schemes are made in a proper manner and their execution is

made effective; to provide for the creation of new towns by means

of Development Authorities; to make provisions for the

compulsory acquisition of land required for public purposes in

respect of the plans; and for purposes connected with the matters

aforesaid. The Act is divided into several Chapters and Chapter I

contains preliminary provisions, including definitions. Chapter II

contains provisions relating to regional plans and the whole of the

procedure as set out therein with regard to making and

sanctioning of regional plans denotes that the powers are all

pervasive in nature. After that Chapter comes Chapter III styled

as “Development Plans”. To understand some of the provisions of

this Chapter III, a reference to the few definitions would be

necessary. The word “development” is defined under section 2(7)

and the word “development right” is defined under section 2(9).

The term “Director of Town Planning” is defined under section

2(10). The term “Planning Authority” is defined under section

2(19). These definitions are reproduced herein below:-

“2(7) “development” with its grammatical variations means

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the carrying out of buildings, engineering, mining or other
operations in or over or under, land or the making of any
material change, in any building or land or in the use of any
building or land or any material or structural change in any
heritage building or its precinct and includes demolition of
any existing building, structure or erection or part of such
building, structure of erection; and reclamation,
redevelopment and lay-out and sub-division of any land; and
“to develop” shall be construed accordingly.

2(9) “Development plan” means a plan for the development
or re-development of the area within the jurisdiction of a
Planning Authority and includes revision of a development
plan and proposals of a special planning Authority for
development of land within its jurisdictions.

2(10) “Director of Town Planning” means the officer
appointed by the State Government as the Director of Town
Planning.

2(19) “Planning Authority”means a local authority; and shall
includes,-

(a) a Special Planning Authority constituted or
appointed or deemed to have been appointed under
section 40; and

(b) in respect of the slum rehabilitation area declared
under section 3C of the Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment) Act,
1971, the Slum Rehabilitation Authority appointed
under section 3A of the said Act.”

64. A perusal of these definitions would denote as to how the

provisions relating to regional planning and provisions relating to

the Development Plan operate. Chapter III is titled as

Development Plan and with sub-heading “(a) Declaration of

intention, preparation, submission and sanction to Development

plan”. Sections 21 and 22 appearing therein read as under:-

“21. (1) As soon as may be after the commencement of
this Act, but not later than three years after such

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commencement, and subject however to the provisions of this
Act, every Planning Authority shall carry out a survey,
prepare an existing land-use map and prepare a draft
Development plan for the area within its jurisdiction, in
accordance with the provisions of a Regional plan, where
there is such a plan, publish a notice in the Official Gazette
and in such other manner as may be prescribed stating that
the draft Development plan has been prepared and submit the
plan to the State Government for sanction. The Planning
Authority shall also submit a quarterly Report to the State
Government about the progress made in carrying out the
survey and preparing the plan.

(2) Subject to the provisions of this Act, every
Planning Authority constituted after the commencement of
this Act shall, not later than three years from the date of its
constitution, declare its intention to prepare a draft
Development plan, prepare such plan and publish a notice of
such preparation in the Official Gazette and in such other
manner as may be prescribed and submit the draft
Development plan to the State Government for sanction.

(3) On an application made by any Planning
Authority, the State Government may, having regard to the
permissible period specified in the preceding sections, from
time to time, by order in writing and for adequate reasons to
be specified in such order, extend such period.

(4) If the declaration of intention to prepare
Development plan under section 23 is not made or if the draft
Development plan is not submitted to the State Government
as aforesaid for sanction by any Planning Authority within
the period specified or within the extended period, the
concerned Divisional Joint Director or Deputy Director of
Town Planning and Valuation Department or an officer not
below the rank of an Assistant Director of Town Planning
nominated by him, as the case may be, may after declaring
the intention, carry out necessary survey of the area and
prepare an existing-land-use map in consultation with the
Director of Town Planning and prepare such Development
plan and publish a notice in the Official Gazette and in such
other manner as may be prescribed stating that such plan has
been prepared and submit it to the State Government for
sanction, and may recover the cost thereof from the funds of
that Planning Authority, notwithstanding anything contained
in any law relating to the said fund. Such officer shall
exercise all the powers and perform all the functions of a
Planning Authority which may be necessary for the purposes

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of preparing a Development plan and publishing a notice as
aforesaid and submitting it to the State Government for
sanction.

(4A) If at any stage of preparation of the draft
Development plan, the time fixed under sections 25, 26 and
30 for doing anything specified in the said sections lapse, the
Planning Authority shall be deemed to have failed to perform
its duty imposed upon it by or under the provisions of this Act
and any work remaining to be done upto the stage of
submission of the draft Development plan under section 30
shall be completed by the concerned Divisional Joint Director
or Deputy Director of Town Planning and Valuation
Department or an officer nominated by him not below the
rank of an Assistant Director of Town Planning, as the case
may be. The said officer shall exercise all the powers and
perform all the duties of a Planning Authority, which may be
necessary for the purpose of preparing a Development plan
and submitting it to the State Government for sanction and
may, notwithstanding anything contained in any other law
relating to the funds of the Planning Authority, recover the
cost thereof from such funds:

Provided that, the said Officer shall exercise all the
power and perform all the duties of the Planning Authority
within such period as may be specified by an order by the
Director of Town Planning, having regard to the stage of
preparation of Development plan:

Provided further that, the said period specified under
the first proviso shall not exceed the original period stipulated
under the relevant section.

(5) If any local authority which is a Planning
Authority is converted into, or amalgamated with, any other
local authority or is sub-divided into two or more local
authorities, the Development plan prepared for the area by
that Planning Authority so converted, amalgamated or sub-
divided shall, with such alternations and modifications, as the
State Government may approve be the Development plan for
the area of the new Planning Authority or Authorities into or
with which the former Planning Authority is converted,
amalgamated or sub-divided.

22. A Development plan shall generally indicate the
manner in which the use of land in the area of a Planning
Authority shall be regulated, and also indicate the manner in
which the development of land therein shall be carried out. In

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particular, it shall provide so far as may be necessary for all
or any of the following matters, that is to say, –

(a) proposals for allocating the use of land for
purposes, such as residential, industrial, commercial,
agricultural, recreational;

(b) proposals for designation of land for public
purpose, such as schools, colleges and other educational
institutions, medical and public health institutions, markets,
social welfare and cultural institutions, theaters and places
for public entertainment, or public assembly, museums, art
galleries, religious buildings and government and other public
buildings as may from time to time be approved by the State
Government;

(c) Proposals for designation of areas for open
spaces, playgrounds, stadia, zoological gardens, green belts,
nature reserves, sanctuaries and dairies;

(d) transport and communications, such as roads,
high-ways, park-ways, railways, water-ways, canals and air
ports, including their extension and development;

(e) water supply, drainage, sewerage, sewage
disposal, other public utilities, amenities and services
including electricity and gas;

(f) reservation of land for community facilities and
services;

(g) proposals for designation of sites for service
industries, industrial estates and any other development on
an extensive scale;

(h) preservation, conservation and development of
areas of natural scenery and landscape;

(i) preservation of features, structures or places of
historical, natural, architectural and scientific interest and
educational value and of heritage buildings and heritage
precincts;

(j) proposals for flood control and preservation of
river pollution;

(k) proposals of the Central Government, a State
Government, Planning Authority or public utility undertaking

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or any other authority established by law for designation of
land as subject to acquisition for public purpose or as specified
in a Development plan, having regard to the provisions of
section 14 or for development or for securing use of the land
in the manner provided by or under this Act;

(l) the filing up or reclamation of low lying, swampy
or unhealthy areas or levelling up of land;

(m) provisions for permission to be granted for
controlling and regulating the use and development of land
within the jurisdiction of a local authority including
imposition of fees, charges and premium, at such rate as may
be fixed by the State Government or the planning Authority,
from time to time, for grant of an additional Floor Space Index
or for the special permissions or for the use of discretionary
powers under the relevant Development Control Regulations,
and also for imposition of conditions and restrictions in
regard to the open space to be maintained about buildings, the
percentage of building area for a plot, the location, number,
size, height, number of storeys and character of buildings and
density of population allowed in a specified area, the use and
purposes to which buildings or specified areas of land may or
may not be appropriated, the sub-division of plots, the
discontinuance of objectionable users of land in any area in
reasonable periods, parking space and loading and unloading
space for any building and the sizes of projections and
advertisement signs and boardings and other matters as may
be considered necessary for carrying out the objects of this
Act.”

65. A perusal of sections 21 and 22 would demonstrate that a

development plan shall generally indicate the manner in which

the use of land in the area of a Planning Authority shall be

regulated and also indicate the manner in which the development

of land therein shall be carried out. In particular, it shall provide

so far as may be necessary for all or any of the matters listed in

clauses (a) to (m). Thus, the proposals for designation of areas

for open spaces, play grounds, stadia, zoological gardens, green

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belts, nature reserves, sanctuaries and dairies is one of the

matters, which a development plan shall provide for. A careful

perusal of the clauses would indicate that the plan shall contain

proposals for allocating the use of land, proposals for designation

of land for public purpose, proposals for designation of area for

open spaces etc. At the same time, it shall provide, as far as may

be necessary, for transport and communication, such as roads,

highways, parkways, railways etc. It shall include their extension

and development. It is not the case of the petitioners that

transport and communications and roads, railways cannot be a

matter provided for in the development plan. There are also

other matters such as public utilities, amenities and services,

including electricity and gas. In several of these matters, judicial

notice can be taken of the fact that the land in the area of a

Planning Authority can be used and the user is regulated as well.

However, that has not ruled out excavation and opening up of

land so as to lay pipelines, sewerage and drainage lines and

equally, electricity, gas and water supply pipelines. It is not the

case of the petitioners that such opening up, digging and

excavation is prohibited altogether. Public utilities, amenities and

services have equally to be provided in open spaces, play grounds,

stadia, gardens and sanctuaries and dairies. Equally, the plans

can provide for preservation, conservation and development of

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area of natural scenery and landscape. A balancing act has to be

performed and it is not the object and purpose of a law like the

MRTP Act to permit uncontrolled, unrestricted and unchecked,

much less unregulated development. Planned development itself

means that a development is permitted and promoted, but that

has to sustain the environment and ecology. It cannot damage or

destroy ecology and environment altogether. We have seen the ill

effects, when there are no flood control measures, the river

pollution is not checked and prevented. A balance has been

created and judicial notice can be taken of the fact that if

adequate safeguards and measures so as to prevent floods and

pollution are not taken, there is either a rainfall deficit or there is

excess and untimely rainfall. There are other man-made

calamities. If there is undue human intervention and nature is

not allowed to take its course, then, we have seen the adverse

effects. Cities like Mumbai, Chennai, Kochi in Kerala and

Bengaluru in Karnataka and several others have been witnessing

floods and at regular intervals. There are no long term protective

and preventive measures and that is the reason why these

incidents are frequent. At the same time, the nature is tinkered

in hilly areas. The States of Himachal Pradesh and Uttarakhand

have experienced such calamities. The need of the hour is a

balanced and sustainable development. The planning is a

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continuing process. Eventually, a planner cannot lose sight of

human aspirations and hopes, which have to be fulfilled. Our life

is full of complexities and contradictions. In cities and metro

cities people with contrasting and contrary hopes, dreams and

aspirations reside and settle, then, it is a challenging task for an

urban planner. The balancing act, which has to be performed on

the above lines, is often a subject of challenge and attack in court

and outside. We cannot be oblivious to the fact that those who

shout from rooftops and complain about destruction of

environment and ecology feel nothing when occupying houses

and structures, which are built either on forest land or lands

which have been opened up after hill cutting. We feel nothing

while using roads which pass through thick forests and green

areas and rather we demand shortcuts, bypasses, over bridges,

underpasses, flyovers so as to avoid traffic congestion. Those,

who speak of preservation of environment and ecology, are the

first ones to buy modern technosavvy gadgets and frequently use

airports and aerodromes which are close to the metro cities or

within the cities or have been built or expanded by reducing the

parks, gardens, playgrounds etc. It is this dichotomy, which will

have to be taken into consideration in determining the challenge

of the present nature.

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66. Suffice it to say that when a modification of a substantial

nature within the meaning of section 22A can be carried out,

then, absent a challenge to the very legal provision or enactment

as a whole, we cannot, only on general concerns, interfere with

the policy decisions. Eventually, it is for the Executive to frame a

policy. Equally, it is open for the Executive to modify or reform its

existing policies to suit the current needs and trends. It is they

who have determined that the mode of transportation in a city

like Mumbai needs to be modernised so also traffic congestion can

be effectively tackled by reforming or modifying public transport,

then, merely because another view is possible or that there will be

necessarily a destruction of environment and ecology, we cannot

strike down such policies. So long as there is a power enabling the

authorities to frame and modify its policies, then, we are nobody

to interfere with their actions. The policy measures can be

interfered with on limited grounds. In the absence of clear proof

of lack of bonafides, contravention of the rights guaranteed by the

Constitution of India or violation of statutory provisions, the

policy decisions cannot be interfered with. They are founded on

the executive discretion and freedom of experiment. There is a

greater latitude in such matters. The methodology may be of trial

and error, but so long as the bonafides are not in issue, then, we

are nobody to interfere with the policy decisions. We have noted

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that the arguments of the petitioners overlook section 22A of the

law and equally section 31.

67. While modification of substantial nature can be carried out

and that is provided for by section 22A, then, the procedure

therefor is set out in Chapter III of the MRTP Act. Sections 22A,

26 and 31 read as under:-

“22A. In section 31, the expression “of a substantial nature”
used in relation to the modifications made by the State
Government in the draft Development Plan means,-

(a) any modification to a reserved site resulting in
reduction of its area by more than fifty per cent. or
reduction of such amenity in that sector by an area of
more than ten per cent. in the aggregate;

(b) insertion of a new road or a new reservation or
modification of a reserved site or a proposed road or a
proposed road widening resulting in inclusion of any
additional land not so affected previously;

(c) change in the proposal of allocating the use of
certain lands from one zone to any other zone provided
by clause (a) of section 22, which results in increasing
the area in that other zone by more than ten per cent.
in the same planning unit or sector in a draft
Development plan;

(d) alteration in the Floor Space Index beyond ten
per cent. of the Floor Space Index prescribed in the
Development Control Regulation.

26. (1) Subject to the provisions of section 21, a Planning
Authority, or the said Officer shall, not later than two years
from the date of notice published under section 23, prepare a
draft Development plan and publish a notice in the Official
Gazette, and in such other manner as may be determined by it
stating that the Development plan has been prepared. The
notice shall state the name of the place where a copy thereof
shall be available for inspection by the public and that copies
thereof or extracts therefrom certified to be correct shall be

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available for sale to the public at a reasonable price, and
inviting objection and suggestions within a period of thirty
days from the date of notice in the Official Gazette:

Provided that, in case of a Municipal Corporation
having population of ten lakhs or more as per the latest
census, the period for inviting objections and suggestions
shall be sixty days from the date of notice in the Official
Gazette::

Provided further that, the State Government may, on an
application of the Planning Authority, by an order in writing,
and for reasons to be recorded from time to time extend the
period for preparation and publication of notice of the draft
Development plan.

Provided also that, the period so extended shall not in
any case, exceed,-

(i) twenty-four months, in the aggregate, in case of
Municipal Corporation having population of one crore
or more, as per the latest census figures;

(ii) twelve months, in the aggregate, in case of
Municipal Corporation having population of ten lakhs
or more but less than one crore, as per the latest census
figure; and

(iii) six months, in the aggregate, in any other case.

(2) The notice shall also state that copies of the
following particulars in relation to the draft Development
plan are also available for inspection by the public and copies
thereof, or extracts therefrom certified to be correct, are also
available for sale to the public at a reasonable price at the
place so named, namely:-

(i) a report on the existing-land-use map and the
surveys carried out for the purpose of preparation of
the draft plan;

(ii) maps, charts and a report explaining the
provisions of the draft Development plan;

(ii-a) map showing the planning units or sectors
unalterable till the Development plan is revised;

(iii) regulations for enforcing the provisions of a draft

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Development plan and explaining the manner in which
the permission for developing any land may be obtained
from the Planning Authority or the said officer, as the
case may be;

(iv) a report of the stages of development by which it
is proposed to meet any obligation imposed on the
Planning Authority by the draft Development plan;

(v) an approximate estimate of the cost involved in
acquisition of land required by the Planning Authority
for the public purposes, and also cost of works, as may
be necessary.

31. (1) Subject to the provisions of this section, and not
later than six months from the date of receipt of such plan
from the Planning Authority, or as the case may be, from the
said Officer, the State Government may, after consulting the
Director of Town Planning by notification in the Official
Gazette sanction the draft Development plan submitted to it
for the whole area, or separately for any part thereof, either
without modification, or subject to such modifications as it
may consider proper, or return the draft Development plan to
the Planning Authority, or as the case may be, the said Officer
for modifying the plan as it may direct or refuse to accord
sanction and direct the Planning Authority or the said Officer
to prepare a fresh Development plan:

Provided that, the State Government may, if it thinks
fit, whether the said period has expired or not, extend from
time to time, by notification in the Official Gazette, the period
for sanctioning the draft Development plan or refusing to
accord sanction thereto, by such further period not
exceeding,-

(i) twenty-four months, in the aggregate, in case, the
area of such Development plan falls in the jurisdiction
of a Metropolitan Planning Committee constituted
under the Maharashtra Metropolitan Planning
Committee (Consultations and Functions)
(Continuance of Provisions) Act, 1999;

(ii) twelve months, in the aggregate, in any other
case, as may be specified in such notification:

Provided further that, where the modifications
proposed to be made by the State Government or submitted
by the Planning Authority under section 30 and proposed to

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be approved by the State Government without any further
change are of a substantial nature with respect to the draft
Development plan published under section 26, the
Government shall publish a notice in the Official Gazette and
also in not less than two local newspapers inviting objections
and suggestions from any person in respect of the proposed
modifications within a period of one month, from the date of
such notice:

Provided also that, if the Government does not publish
its decision by notification in the Official Gazette, regarding
sanctioning the draft Development plan submitted to it, for
the whole area, or separately for any part thereof, either
without modification, or subject to such modifications as it
may consider proper, or return the draft Development plan to
the Planning Authority, or as the case may be, the said Officer
for modifying the plan as it may direct or refuse to accord
sanction and direct the Planning Authority or the said Officer
to prepare a fresh Development plan, within the period under
this section, such draft Development plan shall be deemed to
have been sanctioned as submitted to the Government under
section 30, on the date immediately following the date of
expiry of the period under this section:

Provided also that, where any modification submitted
by the Planning Authority or, as the case may be, the said
Officer, under section 30 is of substantial nature with respect
to the draft Development plan published under section 26,
such modification shall not be deemed to have been
sanctioned and the Government shall publish a notice
regarding such modifications of substantial nature and the
provisions relating to publication of the notice in the Official
Gazette and two local newspapers for obtaining suggestions
and objections as stipulated in the second proviso, shall apply.

(2) The State Government may appoint an officer of
rank not below that of a Group A officer and direct him to hear
any such person in respect of such objections and suggestions
and submit his report thereon to the State Government within
one year from the date of publication of notice under second
proviso to sub-section (1).

(3) The State Government shall before according
sanction to the draft Development plan take into
consideration such objections and suggestions and the report
of the officer:

Provided that, the time-limits as provided in sub-

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sections (1) and (2) shall not apply for according sanction to
the modifications published under sub-section (1):

Provided further that, the Government shall take final
decision regarding such modifications within one year from
the date of receipt of the report from the officer appointed
under sub-section (2).

(4) The State Government shall fix in the notification
under sub-section (1) a date not earlier than one month from
its publication on which the final Development plan shall
come into operation.

(4A) The State Government may, by notification in the
Official Gazette, delegate all the powers and functions under
this section to the Director of Town Planning in such cases
and subject to such conditions, if any, as may be specified in
such notification.

(5) If a Development plan contains any proposal for
the designation of any land for a purpose specified in clauses

(b) and (c) of section 22, and if such land does not vest in the
Planning Authority, the State Government shall not include
that purpose in the Development plan, unless it is satisfied
that the Planning Authority will be able to acquire such land
by private agreement or compulsory acquisition not later
than ten years from the date on which the Development plan
comes into operation.

(6) A Development plan which has come into operation
shall be called the “final Development plan” and shall, subject
to the provisions of this Act, be binding on the Planning
Authority.”

68. By section 37, a modification of Final Development Plan is

also permitted. Section 37 is heavily relied upon together with

section 37A. Both read as under:-

“37. (1) Where a modification of any part of or any
proposal made in, a final Development plan, the Planning
Authority may, or when so directed by the State Government
shall, within ninety days from the date of such direction,
publish a notice in the Official Gazette and in such other
manner as may be determined by it inviting objections and
suggestions from any person with respect to the proposed
modification not later than one month from the date of such

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notice; and shall also serve notice on all persons affected by
the proposed modification and after giving a hearing to any
such persons, submit the proposed modification (with
amendments, if any,) to the State Government for sanction
within one year from the date of publication of notice in the
Official Gazette. If such modification proposal is not
submitted within the period stipulated above, the proposal of
modification shall be deemed to have lapsed:

Provided that, such lapsing shall not bar the Planning
Authority from making a fresh proposal.

(1A) If the Planning Authority fails to issue the notice
as directed by the State Government, the State Government
shall issue the notice, and thereupon the provisions of sub-
section (1) shall apply as they apply in relation to a notice to
be published by a Planning Authority.

(1AA)(a) Notwithstanding anything contained in
sub-section (1), (1A) and (2), where the State Government is
satisfied that in the public interest it is necessary to carry out
urgently a modification of any part of, or any proposal made
in, a final Development plan of such a nature that it will not
change the character of such Development plan, the State
Government may, on its own, publish a notice in the Official
Gazette, and in such other manner as may be determined by
it, inviting objections and suggestions from any person with
respect to the proposed modification not later than one month
from the date of such notice and shall also serve notice on all
persons affected by the proposed modification and the
Planning Authority.

(b) The State Government shall, after the
specified period, forward a copy of all such objections and
suggestions to the Planning Authority for its say to the
Government within a period of one month from the receipt of
the copies of such objections and suggestions from the
Government.

(c) The State Government shall, after giving
hearing to the affected persons and the Planning Authority
and after making such inquiry as it may consider necessary
and consulting the Director of Town Planning, by notification
in the Official Gazette, publish the approved modifications
with or without changes, and subject to such conditions as it
may deem fit, or may decide not to carry out such
modification. On the publication of the modification in the
Official Gazette, the final Development plan shall be deemed to

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have been modified accordingly.

(1-B) Notwithstanding anything contained in sub-
section (1), if the Slum Rehabilitation Authority appointed
under section 3A of the Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment) Act, 1971 is
satisfied that a modification of any part of, or any proposal
made in, a final Development plan is required to be made for
implementation of the Slum Rehabilitation Scheme declared
under the said Act, then, it may publish a notice in the Official
Gazette, and in such other manner as may be determined by
it, inviting objections and suggestions from any person with
respect to the proposed modification not later than one month
from the date of such notice; and shall also serve notice on all
persons affected by the proposed modification, and after
giving a hearing to any such persons, submit the proposed
modification (with amendments, if any) to the State
Government for sanction.

(2) The State Government may, make such inquiry as
it may consider necessary and after consulting the Director of
Town Planning by notification in the Official Gazette, sanction
the modification with or without such changes, and subject to
such conditions as it may deem fit or refuse to accord
sanction. If a modification is sanctioned, the final
Development plans shall be deemed to have been modified
accordingly.

37A. Notwithstanding anything contained in this Act or any
other law for the time being in force, or in any judgment,
order or direction of any Court or any draft or final
Development plan, the State Government or the Planning
Authority may, in respect of any plot of land reserved,
designated or allocated for the purpose of playground in such
draft or final Development plan, which is in the possession of
the State Government or the Planning Authority, by an order
issued from time to time, permit any organisation, body of
persons or association to use such play-ground for functions
organised on the occasions of Independence Day, Republic
Day, Maharashtra Day and similar National events, and the
Jayanties or Punnyatithies of National Leaders, religious
functions and public meetings, on terms and conditions
specified by the State Government or the Planning Authority,
as the case may be, in such order, for a period not exceeding
12 days at a time and in any case not exceeding forty-five
days in the aggregate, in a calender year; and such use shall
not be deemed to be a change of user:

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provided that, temporary use of any plot of land,
reserved, designated or allocated for the purpose of play-
ground, for management of any disaster or emergency such as
Helipad or other essential use, shall also not be deemed to be a
change of user.”

69. A perusal of section 37(1) would denote that where a

modification of any part of or any proposal made in a Final

Development Plan, the Planning Authority may or when so

directed by the State Government shall carry out the mandate of

that sub-section. The public has a vital interest and is an

important stakeholder. It can object and equally give suggestions.

There is a hearing contemplated and the proposed modifications

with amendments, if any, have to be forwarded to the State

Government for sanction within one year from the date of

publication of notice in the Official Gazette. If that is not done, the

proposal of modification shall be deemed to have been lapsed.

However, if the procedure is followed, then, what is important to

note is that the further steps have to be taken. The argument of

the petitioners also overlooks sub-section (1AA)(a) to (c) of

section 37. It is relevant here to note that this provision is given

an overriding effect. If the State Government is satisfied that in

public interest, it is necessary to carry out urgently modification

of any part of or any proposal made in a Final Development Plan

of such a nature that it will not change the character of such

development plan, it can, on its own motion, take the steps within

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the meaning of the sub-section and the clauses thereof. The

modification then would come into effect.

70. In the present case, we have noted that by section 22A, the

expression “modification of substantial nature” is defined and for

the simple reason that during the course of sanction of Draft

Development Plan, it would be open for the State Government to

effect modification thereto. It may sanction the Draft either

without modification or subject to such conditions as it may

consider proper and as provided in the second and third proviso

to section 31(1) of the MRTP Act If the modifications proposed to

be made by the State Government or submitted by the Planning

Authority under section 30 and proposed to be approved by the

State Government without any further change are of a substantial

nature with respect to the Draft Development Plan, then, the

State Government has to follow the second and the third proviso.

71. The provision as highlighted by the State Government

indicates that the notification dated 24th August, 2017, issued by

respondent no. 1 is under section 37(1AA) clause (c) of the MRTP

Act. We have referred to this section in the foregoing paragraphs

only to emphasise that by the sub-section and its clauses, an

overriding power is conferred in the State Government. If the

State Government is satisfied that in the public interest it is

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necessary to carry out urgently a modification of any part of or

any proposal made in a Final Development Plan and that is of

such a nature that it will not change the character of such

development plan, then, the State Government can suo moto

proceed to invite objections and suggestions from any persons

with respect to the proposed modifications and after giving

hearing to such persons and after making such inquiries as it may

consider necessary and consulting the Director of Town Planning,

it can, by a notification in the Official Gazette, publish the draft

modifications with or without changes and subject to such

conditions as it may deem fit or may decide not to carry out such

modifications.

72. The notification has been reproduced by us and that

sanctions the modifications, namely, deleting the land from No-

Development Zone in the Revised Development Plan of K/East

Ward and to reserve it for metro car-depot, allied facilities and

Commercial (C-1) Zone. This notification making this

modification is in accord with the legal provisions. There is no

substance in the allegation and the complaint that this brings

about a modification, which changes the character of the

development plan. The character of the development plan is not

changed and all the more when this modification is sanctioned

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with conditions. None of the conditions reproduced by us in the

foregoing paragraphs would contravene the constitutional

guarantee of protection of environment and ecology. We have

seen that the conditions rather safeguard the environment and

ecology. The conditions enshrine that the plantation of trees will

be made as per the recommendations of the Committee and that

trees above 10 feet height of native variety only be planted and

that plantation to be undertaken by professional agencies only.

Annual audit by third party would be done and reports would be

posted on the website with an additional term that the fourth

respondent will maintain these trees for five years and ensure

that damage, if any, caused to ecology and environment is

mitigated by the plantation. Further, nothing beyond the total 33

hectares of land would be used for the metro car depot/workshop

and allied user. No commercial user has been permitted. Further,

several authorities will have to be approached for prior

permissions. Finally, the character of overall construction shall

be such that the underground water table is not disturbed.

Hence, we do not see any substance in the challenge to this

notification.

73. As far as the notification dated 9th November, 2017 is

concerned, that is in relation to the Draft Revised Development

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Plan along with Development Control Regulations. These were

placed before the General Body and the Municipal Corporation’s

General Body passed a Resolution No. 1195 dated 23rd February,

2017 resolving that a notification under section 26(1) of the

MRTP Act shall be published for inviting suggestions/objections

from general public on the Draft Revised Development Plan. As

far as this aspect is concerned, there is a clear prescription and to

be found in sub-section (1) of section 26 of the MRTP Act. Sub-

section (1) says that subject to provisions of section 21, the

Planning Authority can, within the time prescribed in that

provision, prepare a Draft Development Plan and publish a notice

in the Official Gazette, informing that the development Plan has

been prepared and public can inspect it and thereafter, the

objections and suggestions can be made.

74. After this was published and the suggestions/objections

were received by the Municipal Corporation, during that course,

the State Government issued directions by a letter dated 23 rd

April, 2015 to the Municipal Corporation to revamp/recast the

Draft Development Plan after examining all the errors on the

basis of existing site conditions and its merits by considering the

planning and legal issues and republish this Draft Development

Plan after incorporating all the corrections for the purpose of

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inviting suggestions/objections as per section 26 of the MRTP Act.

75. It is in these circumstances and in terms of the directions of

the State Government that the Draft Revised Development Plan,

along with Development Control Regulations were prepared by

the said Municipal Corporation within the extended time granted

under section 26 of the MRTP Act and after obtaining sanction

from the General Body, by Resolution No. 307 dated 27 th May,

2016, the Municipal Corporation of Greater Mumbai published a

notice inviting suggestions/objections of the general public.

76. Then, there is a reference made to the objections to the

Draft Development Plan and which objections were considered by

the Planning Authority. It submitted its report under sub-section

(3) of section 28 to the State Government on 6th March, 2017. The

Municipal Corporation, after considering the report of the

Planning Committee, by its Resolution No. 393 dated 31st July,

2017, has sanctioned the Draft Development Plan with

modifications or change carried out by the Planning Committee,

subject to the modifications suggested by the Municipal

Corporation. These were also published in terms of sub-section

(4) of section 28 for the information of the public.

77. Thereafter, the Draft Development Plan came to be

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forwarded to the State Government and in terms of sub-section

(1) of section 30. The State Government had before it this Draft

Development Plan as also a report of the Director of Town

Planning. He made his report on part of the said Development

Plan in respect of the proposals of “S” and “K/East” Wards

respectively. Thereafter, in exercise of this power of sanction to

the Draft Development Plan conferred by sub-section (1) of

section 31, the Government of Maharashtra accorded sanction to

the part of the said Development Plan along with modifications as

specified in the Schedule to the notification dated 9th November,

2017.

78. A careful perusal of sub-section (1) of section 31 would

denote that the State Government is conferred with a power to

sanction the Draft Development Plan submitted to it for the whole

area or separately for any part thereof, either without

modification or subject to such modifications as it may consider

proper or return the Draft Development Plan to the Planning

Authority for modifying it. It may also refuse to accord sanction

to the Draft and direct preparation of fresh development Plan.

The State Government is right in this case when it says that the

two provisions, namely, sub-section (1) of section 31 and section

37(1AA) deal with different situations, in the sense, by the first,

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namely, section 31(1), the sanction is to Draft Development Plan

and it may be sanctioned for the whole area or separately for any

part thereof either with modifications or subject to such

modifications as the State Government may consider proper and

the latter is dealing with modification of Final Development Plan.

A care has been taken by law to ensure that the Final

Development Plan does not lose its character altogether.

Therefore, the petitioners are in error in mixing up the issues.

The argument of Mr. Dwarkadas that section 22A of the MRTP

Act would apply overlooks the fact that the modification to the

Final Development Plan is made under a distinct provision,

whereas, when the Draft Development Plan is sought to be

sanctioned, what is contemplated by sub-section (1) of section 31

is that where the modification is proposed to be made by the State

Government or submitted by the Planning Authority under

section 30 and proposed to be approved by the State Government

without any further change are of substantial nature, then, the

Government shall publish a notice in the Official Gazette and also

in not less than two local newspapers, inviting objections and

suggestions from any person in respect of the proposed

modifications. That is how the second proviso to sub-section (1)

of section 31 reads. However, a careful perusal of the notification

dated 9th November, 2017 leaves us in no manner of doubt that the

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State Government had before it the Corporation’s Resolution

dated 20th October, 2008 declaring its intention to sanction

Revised Development Plan of Greater Mumbai within its

jurisdiction as laid down under section 38 read with section 23(1)

of the MRTP Act. It had before it the notice published in the

Official Gazette of 1st July, 2009, the survey of existing land use of

the entire area within the jurisdiction of the Municipal

Corporation and the existing land use maps. Further, it had the

Resolution dated 23rd February, 2015, a notice published in the

Maharashtra Government Gazette of the same date under section

26(1) inviting suggestions/objections from general public on the

Draft Revised Development Plan. However, the State Government

issued a direction as noted above dated 23rd April, 2015 to

revamp/recast the Draft Revised Development Plan and republish

such draft after incorporating all the corrections for the purpose

of inviting suggestions/objections as per section 26 of the MRTP

Act. The Government was pleased to extend the time and after

obtaining sanction from the General Body, vide Resolution No.307

dated 27th May, 2016, the notice under section 26(1) was

republished on that very day by the Municipal Corporation. After

that, the Planning Committee also submitted its report on 6 th

March, 2017 to the Municipal Corporation, which was also

forwarded to the State Government, the Municipal Corporation’s

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Resolution of 31st July, 2017, sanctioning the draft with

modifications or changes carried out by the Planning Authority

and the publication under section 28(4) of the MRTP Act. All this

was forwarded vide letter dated 2nd August, 2017 to the State

Government for sanction. Thereafter, the State Government

came to the conclusion that the part of the said development plan,

in respect of proposals of “K/East” and “S” Wards, with

modifications need to be sanctioned. That is how the Schedule to

the notification reads. This is a conditional modification. It is in

these circumstances, according to us, section 22A is not violated.

This is not a change of a substantial nature. This is not a case

where the green area has been eliminated or has been allotted to

be used for commercial purposes. We have carefully perused the

report of the Director of Town Planning and we do not find that

this report undermines the importance of Aarey Colony.

79. It is also not possible to agree with Mr. Dwarkadas when he

urges that the notification dated 9th November, 2017 is published

for land use not recognised under the Development Control

Regulations-1991. That metro car depot may have been proposed

for the first time, but a mode of public transport, such as Metro

Railway was always in the offing. That it took time to take

concrete shape does not mean that the State was not at all

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contemplating its introduction. In fact, on the own showing of the

petitioners, such a project was always thought of so as to solve the

problem of traffic congestion. In these circumstances, it is not

possible to agree with him that metro car depot was not a

recognised land use or that the fourth respondent does not have

the right to carry out development of metro car depot until Final

Development Regulations-2034 are notified. It is apparent that

the same are now notified. Secondly, the argument that the

notification does not have the accompanying plan is incorrect

simply because when the suggestions of the public and equally

objections were invited, everything was made available for

inspection. That is set out in the notification itself. Finally, we

find that none of the proposals in the development plan, in terms

of section 22, have been brushed aside. The notification dated 9th

November, 2017 does not disregard section 22 of the Act.

80. The argument that Aarey is a forest and no development is

permitted in a forest belies the fact that the additional affidavit of

respondent no. 4 shows that the Aarey Milk Colony was, by a

draft notification dated 22nd January, 2016, for the first time,

proposed to be included within the Eco-sensitive Zone of Sanjay

Gandhi National Park. The Expert Committee constituted for

declaration of Eco-sensitive Zone had, however, unanimously

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decided that the area of 165 hectares of the said Aarey Land,

which includes the land proposed to be allotted to metro car

depot, should not be included in the Eco-sensitive Zone and

accordingly, the final notification did not include the said 165

hectares of land in the notified Eco-sensitive Zone. Hence, it is

erroneous to term Aarey or Aarey Milk Colony area as a forest.

There is no question of the same being referred to as forest,

particularly in the light of the final notification dated 6 th

December, 2016. We have carefully perused that notification and

which is to be found at page 347 of the compilation handed in by

Mr. Dwarkadas. The notification dated 22 nd January, 2016 is a

draft. It contains the extended boundaries of Eco-sensitive Zone

and other details. When that was forwarded for sanction, it is

clear that it was not sanctioned by including the subject Aarey

land as a Eco-sensitive zone. Thus, it is not an Eco-sensitive Zone

of the Sanjay Gandhi National Park. If that is how it is projected

in the notification, then, absent a challenge thereto, we cannot

consider the arguments of Mr. Dwarkadas on this point any

further. Respondent no. 4, in the additional affidavit, tendered on

15th June, 2018 has clarified that the metro car depot site is not a

forest land. The car depot is not in a statutorily recognised forest

area. No Government record has been referred to by the

petitioners, in which, the metro car depot area is recorded as a

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forest. Further, we have other materials on record, which would

denote that the metro car depot site forms part of Aarey Milk

Colony and does not form part of the Sanjay Gandhi National

Park. The petitioners, in the additional affidavit and particularly

in paras 24 to 28 at running pages 226-228 rely upon the copy of

the letter dated 22nd July, 1980 of the Forest Development

Corporation of Maharashtra Ltd. The said letter alone is not

decisive for it is evident that the land has not been notified as a

forest. The respondent no. 4 has clearly denied this fact and with

reference to public documents. In para 21 of this affidavit at page

295, the fourth respondent says as under:-

“21. With reference to paragraphs 24 to 28, I say that the
same refers to 2076 Ha of land which were transferred earlier
from the Aarey Milk Scheme to the Borivili National Park.
The present area of Aarey Milk Scheme: 1278 Ha, is after
excluding the said area of 2076 Ha which had thus been
transferred to the National Park. The Metro Car depot site
forms part of the Aarey Milk Scheme Lands and does not form
part of the lands transferred to the National Park. This issue
has been raised before the NGT and the Forest
Department/Govt have also clarified that the Aarey Car Depot
Land falls within the Aarey Milk Scheme lands and that it did
not fall within the 2076 Ha transferred to and forming part of
the National Park.”

81. It is also reiterated that Aarey Milk Colony is a larger area

of 1287 hectares adjoining the National Park. It is claimed that

the plot, which has been allotted for the metro car depot is located

in the extreme southern end of the Aarey Milk Colony area and is

located on its southern periphery. It is in the vicinity of the busy

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JVLR, the Marol-Maroshi Road and the Aarey-Powai Road. There

are other locations as well. Mr. Dwarkadas argues that Aarey

land has been recorded as a forest and in that regard, our

attention is invited to a letter dated 22nd July, 1980. That is at

page 476 of the petitioners’ compilation of documents. However,

it is on the subject of exclusion of the recreational zone from the

part of the notification declaring the area as National Park under

the Wildlife Protection Act, 1972. This letter, to our mind, does

not lend support to the arguments of the petitioners, as

canvassed. We have, therefore no hesitation in accepting the

arguments of Mr. Kumbhakoni and Mr. Chinoy to the contrary.

The lands have been transferred from Aarey Milk Colony to

Sanjay Gandhi National Park and there may have been some

amendment plans of this park, but from that alone, it is not

possible to deduce that the subject land is a forest.

82. Then, the letter of the District Collector, Mumbai Suburban

District dated 21st November, 2012, addressed to the Additional

Chief Secretary, Revenue and Forest Department, recording the

change in the land earmarked for metro car depot for Metro-III

Line is also carefully perused. It merely says that the land is fully

quagmire. However, by that itself, it will not be possible to

conclude that this land or the preferred land is a forest. Hence,

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we have no hesitation in rejecting the petitioners’ argument that

the impugned notifications permit use of forest land for metro car

depot.

83. Needless to clarify that the use of the land for metro car

depot must abide by the conditions imposed on the fourth

respondent, but that is a distinct aspect. That is not to be

confused with the assertion of the petitioners that the metro car

depot is in a forest or on a forest land. Thus, this is not a case of

assignment and allotment of a forest land to the fourth

respondent without prior permissions or without any cognizance

of the environment protection and wildlife protection laws. It is

evident that before development and use as a metro car-shed, all

the permissions will have to be obtained and all conditions have to

be abided by the respondent no. 4.

84. In the above circumstances, we are not in a position to

accept Mr. Dwarkadas’s arguments that the Environment

Protection Act, 1986 and the Forest Conservation Act, 1980 have

been given a go-bye while issuing the impugned notifications and

while permitting change of user.

85. Mr. Dwarkadas is heavily relying upon the report of a

Technical Committee set up by the State Government. He is also

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relying upon the project report of Mumbai Metro Rail Corporation

Limited styled as the Delayed Project Report for Metro Line III,

Colaba-Bandra-Seepz and the conclusion in the final report, which

indicates, according to the Corporation itself, that additional

clearance would be required because the site is in green forest

area (DP Zone-I). However, the affidavit styled as clarificatory

affidavit filed by the Assistant Conservator of Forest, Thane

Forest Division, Thane, before the National Green Tribunal, a copy

of which is on record of this case and part and parcel of the

petitioners’ compilation of documents, reveals that the subject

property admeasures 1280 hectares as referred by the applicants

before the National Green Tribunal, has not been recognised and

notified and/or identified and demarcated as a forest land in any

record. When this information is placed before us, then, it is

difficult to accept the arguments of Mr. Dwarkadas that the

perception or understanding of the fourth respondent-

Corporation to the contrary must override everything and should

be accepted by us. Any publication by the fourth respondent, but

not of identical legal status and character as this affidavit of the

Assistant Conservator of Forest and duly supported by official

records and public documents, therefore, cannot be accepted. Mr.

Dwarkadas has made much capital of the additional affidavit of

the petitioners, wherein they made a solemn statement to the

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effect that the Municipal Corporation of Greater Mumbai has

objected to and disapproved the proposed change in the Aarey

Milk Colony land from No-development Zone to metro car depot.

The petitioners have understood that the Deputy Director of Town

Planning records, in his report, that the Municipal Corporation of

Greater Mumbai has disallowed the proposed alteration in the

meeting of the Improvement Committee held on 7 th June, 2017. it

is evident from a perusal of the relevant documents that the

Municipal Corporation has not said anything of the nature

attributed to it by the petitioners. Rather, the Municipal

Corporation has informed the Deputy Director of Town Planning

that it has published the notice in relation to the modification

proposed to sanction Revised Development Plan of “K/East” Ward.

The modification was published on 29th December, 2016. The

remarks that are forwarded by the office of the Chief Engineer,

Development Plan are subject to approval of the Municipal

Corporation. The Municipal Corporation has not said anything in

relation thereto. It is evident from the correspondence in this

behalf that there is no disapproval of the Municipal Corporation.

Any document and attributed to the Improvement Committee of

the Municipal Corporation of Greater Mumbai cannot be said to be

the basis for such an argument. The Marathi resolution of the

Corporation stated to be disallowing the alteration, has been

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carefully perused by us. It does not say anything, by which we

can hold that the Municipal Corporation is disapproving the

alteration or modification. In fact, the Improvement Committee

Resolution stated to be of disapproval has been forwarded as its

recommendation to the Municipal Corporation. However, the

Municipal Corporation has not said what is attributed to it by the

petitioners. Hence, we do not see how any assistance can be

taken of this letter at page 314 of the compilation of documents of

the petitioners to contend that the Municipal Corporation of

Greater Mumbai has disapproved the alteration or modification.

86. We are mindful of the concerns expressed in the Technical

Committee Report. The remarks and observations of the

minority member have been carefully perused by us. We are not

oblivious to these concerns of Dr. Sham Asolekar, who is not in

agreement with the conclusions of the majority and to be found

from paras v to ix and the recommendations of the majority as

well. We have carefully perused his notes as well. We are of the

firm opinion that these notes and the concerns expressed by him

cannot be ignored. That they are not being ignored is apparent

from the conditions imposed on the fourth respondent. The

modification is not unconditional. Similarly, neither of the

notifications allow a free user as is projected before us. No

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commercial user is permitted. Further, prior sanctions and

permissions have to be obtained and secondly, there is a

monitoring and supervising mechanism in place as well.

87. While we dismiss the writ petition and by discharging the

Rule without any order as to costs, we direct the fourth

respondent to strictly abide by the conditions imposed in the

impugned notifications and no activity contravening and violating

the same shall be permitted at site. We direct respondent no. 1-

State as also the concerned officials of the Municipal Corporation

of Greater Mumbai to ensure that none of these conditions are

flouted or violated by the fourth respondent. If any term or

condition is found to have been violated, then, irrespective of the

construction carried out at site, the State Government and the

Municipal Corporation of Greater Mumbai shall not be inhibited

or prohibited from exercising their statutory powers, particularly

under the MRTP Act and the Mumbai Municipal Corporation Act,

1888. They can refuse development permission in the event any

violations or breaches are noticed or they can refuse permission

or approval for using the construction at site as a metro car depot

in the event they are satisfied that the terms and conditions of the

notifications are breached or violated. Merely because we have

upheld the legality and validity of the notifications does not mean

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that the statutory authorities should permit the fourth

respondent to carry out any works or activities contrary to the

terms and conditions of the notifications. We clarify that we have

upheld the notifications with the terms and conditions. With this

clarification, the writ petition stands dismissed. Rule discharged.

There would be no order as to costs.

(PRAKASH.D.NAIK, J.) (S.C.DHARMADHIKARI, J.)

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