"Sure It Is Illegal": Bombay High Court Stops Work Of Powai Cycling & Jogging Track, Directs Restoration

According to the petitions filed by IITB PhD student Omkar Supekar and NGO Vanashakti the work for the cycle track was violative of the Wetlands (Conservation and Management) Rules, as the Powai Lake was a wetland.

Another intervention filed by green activist Zoru Bhathena said that 40% of the Powai Lake was surrounded by a road being used by IIT B, therefore there was no need to build another cycle track. The road could be declared a public road and be used by the public.

On Friday, a division bench of Chief Justice Dipankar Datta and Justice VG Bisht held the existing work for the cycle track to be illegal and also refused to grant BMC a stay on the judgment.

"If the court stays its own order then that shows that the court is not sure of its order. We don't pass order like that. We are sure it is illegal and so it has been stopped," the bench observed.

The court said that the BMC should immediately remove the work already carried out.

The BMC was building a cycling track around the Powai lake as part of its plan to have cycling tracks across the city. The project was opposed by environmentalists, saying the cycle track would impact the habitat of the Indian marsh crocodiles.

The BMC was granted permission for the cycling track by the Mumbai Heritage Committee on the condition that the lake bed shouldn't be reclaimed and there will be a 100 meter buffer zone for construction from the lake.

On November 1, the High Court first stayed work on the cycling track.

"Construction activities carried out in the ecologically fragile wetland of Powai lake are a serious threat to protected and multiple endangered species of flora and fauna (crocodiles) and there is no public information available on ongoing construction activities at all, hence the application," Supekar had said in his petition.

The BMC had refuted claims in the PIL stating that the Powai Lake was a man-made reservoir and not a designated wetland. Therefore, no rules were breached. They argued that the 'gabion technology' which is "porous and doesn't prevent the flow of water'' during the monsoon was being used for the cycle track. So there was no reclamation of land.

Advocate General Ashutosh Kumbhakoni and Senior Advocate Aspi Chinoy, assisted by Advocate Joel Carlos, appeared for the State and BMC.

Senior advocate Gayatri Singh and advocate Rajmani Verma argued for the petitions. Advocate Manoj Shirsat represented Bhathena.

Shirsat argued that the road between IITB and Powai Lake was 6km long, and could easily be made available for public use. Moreover, the cycle track was a breach of Development Control Regulation 2034, [34 3.3 clause 7] mandating no construction for 100 meters from the periphery of the lake.

He pointed out the definition of reclamation in a HC judgement to assert that the lake bed was in fact being reclaimed in breach of the MHCC's refusal. According to the definition "any activity by which the surface which is submerged is taken out of water is reclamation."

While the court has held the ongoing work to be illegal, a detailed copy of the order is yet to be made available.

Citation: 2022 LiveLaw (Bom) 178

Click Here To Read/Download Judgment