Approval Granted By Pune Municipal Corporation To Straighten Ambil Odha Stream Valid: Bombay High Court

The Bombay High Court on Tuesday held that the approval granted by the Pune Municipal Corporation and the Deputy Municipal Commissioner (Vigilance) to straighten the Ambil Odha stream is valid.

"We do not find any infirmity in the approval granted by the respondent no.1 Corporation dated 5th November, 2020 for carrying out a change in the alignment of the Ambil Odha (stream) and also approval for carrying out a change in the alignment of the Ambil Odha dated 25th August, 2020 granted by the respondent no.2", the court held.

Justices R. D. Dhanuka and M. G. Sewlikar dismissed two writ petitions challenging the decision of Pune Municipal Corporation to straighten the Ambil Odha stream flowing through the city of Pune.

Ambil Odha is a stream about 12 Kms long flowing in a south to north direction through Pune. The stream flows in a "C" shape, or horse-shoe shape, which is the natural course of the stream.

In 2013, the Pune Municipal Corporation published a Draft Development Plan under section 26(1) of the Maharashtra Regional Town Planning Act, 1966 (MRTP Act). The Final Development Plan was notified in 2017. In both, Ambil Odha was shown as flowing in a "C" shape.

In November, 2020, PMC sanctioned a correction in the stream alignment in terms of the Town Planning Scheme at the request of Deputy Municipal Commissioner (Vigilance). The work of straightening of the stream commenced on 3rd December, 2021. The petitioners challenged the approval before the High Court.

Gayatri Singh, senior counsel for the petitioners submitted that PMC has sought to make changes in the alignment of Ambil Odha by straightening of its original "C" shape contrary to the sanctioned Development Plan and without following due process of law and the provisions of MRTP Act.

Further, any change in the slope of the stream will result in an increase in the velocity of the water and may result in flooding downstream which is a densely populated area. The plan to straighten the stream in the Development Plan of 1987 and the Town Planning Scheme of 1989 was abandoned as no such plan was indicated in either the Draft Development Plan published in 2013 nor the Final Development Plan of 2017. Since it was not published, citizens were deprived of their right to raise objections under the MRTP Act.

It is not only a case of alignment of nalla or rectification of the alleged error but also of removal of a waterbody amounting to modification of the final Development Plan. The State Government could not have made such modification without following the mandatory provisions under section 37 or section 22A of the MRTP Act.

The petitioners reside along the stream and are affected due to floods that occurred on 25th September, 2019. Any change sought to be carried out in the flow of the nalla is bound to affect the area that fell along the alignment of the nalla.

Advocate General for the State submitted that the stream is being straightened to implement the Town Planning Scheme of 1989. Since it has not been challenged, it is binding on all parties. The proposal of straightening of the stream in the Development Plan of 2017 is the same as that in the Town Planning Scheme.

However, in the plan of 2017, mistakenly both alignments i.e., existing horse-shoe shape and the proposed Town Planning Scheme are shown. It is a draftsman's error. Since there is no change in proposal of straightening the stream, modification to the Development Plan of 2017 as per procedure under section 37 of the MRTP Act is not required, he submitted.

The petitioners have no locus to file this writ petition. None of the petitioners stay in the area where the proposed work of straightening of nalla is to be carried out, it was argued.

The court noted that the straightening of the stream had formed an integral part of the Town Planning Scheme. "There is no variation in the Development Plan of the year 2017 with respect to the proposal of the sanctioned Town Planning Scheme insofar as straightening of nalla is concerned", the court observed.

The court agreed with the AG's submission that the position of existing nalla in the sanctioned Development Plan of 2017 is not correctly shown and PMC rightly applied for corrections in the position of the stream by invoking Note no. 1 of the notification of the sanctioned plan of 2017.

"In our view, the respondent no.1 Corporation has rightly proposed to rectify the draftsman's error by invoking Note no.1 of the notification of the sanctioned Development Plan of the 2017 to ensure that the ground elements are represented on the sanctioned Development Plan as they exist as per revenue / land records / sanctioned Town Planning Scheme. These rectifications of the draftsman's error do not amount to modification under section 37 of the MRTP Act."

The court perused that Development Plan of 2013 and concluded that the petitioners' submission that the proposal of the straightening of the stream was not shown in the Plan is factually incorrect.

The court found no merit in the petitioners' claim that any portion of the waterbody was being removed by the PMC. The court further held that the petitioners had no locus to file this petition as they haven't pointed out any prejudice caused to them by the correction of the draftsman's error. However, the court dealt with the petitioners' case on merits as well.

The court further observed that no malafide on the part of the PMC it its decision to change the alignment of the stream could be demonstrated by the petitioners.

"In our view, the entire petition is based on erroneous premise that the final Development Plan under section 31 of the MRTP Act does not indicate any re-alignment (straightening) of the natural course of Ambil Odha from its existing "horse shoe" or "C" shaped stream."

The court noted that the petitioners could not dispute that the stream swells in the rainy season because of the reduction of velocity of the flow in the horse shoe shape causing flooding of the Ambil Odha. The town planning authority wished to correct this via the Town Planning Scheme of 1989.

The court held that since there is no change in the development plan, there is no question of following the under section 37 of the MRTP Act.

Case no. – Writ Petition No. 7354 of 2021

Case title – Kishor Manohar Kamble and Anr v. Pune Municipal Corporation and Ors.

Coram – Justices R. D. Dhanuka and M. G. Sewlikar

Click Here To Read/Download Judgment