The Supreme Court has set aside the Bombay High Court verdict upholding the regulations framed by the Maharashtra government, through a notification in 2017 after a National Green Tribunal (NGT) order, in the context of unauthorized constructions undertaken by hill-cutting in the state's Pune district.
A bench, headed by Justice Rohinton Fali Nariman and comprising Justices S. Ravindra Bhat and V. Ramasubramanian, said the judgment of the Bombay High Court cannot be sustained, therefore it is set aside.
The bench also quashed the directions in the notification issued on November 14, 2017, noting that it does not specify what constitutes "hills", and how they can be applied in towns and communities set in undulating areas and hilly terrain.
"This is not only vague but makes the directions arbitrary as they can be applied at will by the concerned authorities. More importantly, they amount to a blanket change of all regional and development plans," it held.
The Maharashtra government had issued three directions through this notification.
As per one of them, planning authorities, preparing development plans for areas in their jurisdiction or amending them, were asked to show undeveloped portions abutting the hills up to 100 feet as "No development/Open space Reservation".
The apex court observed that such sweeping directions can be issued, if situations so warrant, such as in extraordinary or emergent circumstances, but there is the complete absence of any reasons why the state-issued them, and coupled with the lack of any supporting expert report or input, renders it an arbitrary exercise. "That they are based only on the NGT's orders, only underlines the lack of any application of mind on the part of the state, while issuing them," it added.
Citing the plans and developments that were approved before this notification was issued, the bench said it is of opinion that these cannot be disturbed and the right of the applicants, be they developers, builders or owners of land or plots, cannot be prejudiced or adversely affected.
In 2013, a mother and her daughter met with a fatal accident after debris and a part of the hill collapsed and slid down the Mauje Shindewadi on NH-4 in Pune's Bhor Tehsil.
After the incident, the Aam Aadmi Lockmanch filed a plea in the NGT seeking a mandatory injunction to restore natural contours at the base of the hill that had been destroyed by mining activity. Besides, it sought general relief by way of directions to other respondents to take necessary action for the protection of hills from destruction and for maintaining foot base design of the hills in the natural survey.
As per the apex court, the material produced before the NGT by Maharashtra, in the form of an affidavit, revealed that large scale destruction of hills by individuals and concerns who had been given short term mining licenses had occurred.
The NGT had noted that the destruction of the hill could not have occurred without connivance or at least purposeful act or omission by the project proponent, NHAI, citing the affidavit that the agreement with it required taking necessary steps for stoppage of illegal construction activity at Katraj hilltop. The NGT had directed NHAI and others to pay Rs 50 lakh as the penalty for causing damage to the environment due to hill-cutting, and also Rs 15 lakh compensation to the legal representatives of the deceased.
The NGT had also directed that "instructions may be issued to the Municipal authorities to ensure that no construction permission shall be given to any construction/development work, which is being proposed and is located at a distance may be of 100 ft. away from lowest slope i.e. incline of any hill within its territorial limits, as well as hill-tops, except for Bamboo cottages".
This direction formed the basis of the Maharashtra government notification, which was challenged in the apex court. "In these circumstances, the use of Section 154 of the Maharashtra Regional and Town Planning Act, in the present case, in fact, amounted to a modification of all plans – regional, development, etc. Such modification (by way of absolute prohibition in construction) was not preceded by any manner of public consultation, much less previous invitation of objections or consideration of the views of affected parties," the top court ruled..