JANHIT MANCH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE creative judicial interpretation of article 21 by our Constitutional Courts, has broadened our vision, in understanding the expression "right to life". Preventing degradation of our ecology and protection of our environment, including the right to clean drinking water and pollutant free atmosphere are some of its facets. Ecological factors as judicially understood, indisputably are relevant considerations in town and Country Planning Statutes. Courts to preserve the environment and ecology of "earth" our home for the present and future generations whilst interpreting environmental laws, lean in favour of protection. The questions raised by the petitioners and which fall for our consideration, give rise to a host of legal issues. Can the State, citing its financial inability to provide housing to en-croachers on public and private lands residing in structures which came up before 1-1-1995 to whom it has granted protection from eviction or its inability to free RG areas, parks, gardens, footpaths and roads from encroachment, enact legislation, granting TDR to builders which TDR is to be used in the suburbs of Mumbai by permitting increase of f. S. I, from 1 to 2. This apart from increasing the burden on infrastructural facilities permits construction without normal set backs and R. G. Areas. According to the petitioner this has resulted in affecting the quality of life of millions of citizens, staying in one room tenements and who pay their taxes and by obeying the law have either purchased or taken on rent tenements, to house themselves and their families. The question posed is, do these law abiding citizens who believe in the rule of law, living in this financial capital of India, have a right to life which is meaningful and worth living with human dignity. Are their children entitled to participate in sports on public playgrounds and enjoy recreational facilities in parks, which are to be maintained, in terms of the development plan. Do senior citizens have a right to live in an atmosphere free from pollution and suspended particulate matter. Can the State abdicate its functions to maintain and preserve the rule of law by amending the Town Planning laws to legalise encroachments. These are some of the broad aspects which we are called upon to consider, while deciding the legal issues which arise in this petition. Though lakhs of square feet of F. S. I, in the form of tdrs have been released pursuant to the s. R. A. Schemes with the avowed object of removing slums and providing human habitation to the hutment dwellers, the problem has become unmanageable because of the state increasing the cut-off dates for protection of illegal hutments from time to time. The Municipal Corporation has prepared a document called "city Development Plan under Jawaharlal Nehru Urban Renewal Mission (JNNURM ). We may refer to the projections of Slum population and the need for housing from that document. <FRM>JUDGEMENT_329_BCR1_2007Html1.htm</FRM> The same document sets out that for a population of 12 million, in an area of 437 sq. Kms. there are only 753 parks with an area of 4. 4 sq. Kms. Forests which this Court had to intervene to protect, cover an area of 174. 15 sq. Km. meters. Against the present requirement of 3900 MLD of water supply, what is available is 3100 MLD. There is a vehicle population of 1. 2 million with annual increase of 4 to 5%. 9. 9 million people commute daily. Out of 2600 MLD of sewage only 1500 is collected and disposed off in an environmentally acceptable manner. The transportation system is plagued by inadequate capacity of the existing arterial roads, overriding surface of the roads, traffic bottle-necks and over burdened suburban rail system. The traffic density at peak hours is 6 to 8 kms. per hour. Based on these statistics, petitioners argue that provisions, permitting usage of additional F. S. I, in the suburbs are illegal, null and void.

(2.) THE power conferred on a constitutional Court to strike down a Legislation may be considered from excerpts from Thomas m. Cooley on a "treatise on the Constitutional Limitations". Courts in matters of striking down a law, conscious of the fallibility of the human judgment, should shrink from exercising in any case, where it can conscientiously and with due regard to duty, decline the responsibility. Being required to declare what the law is in the cases which come before them, courts must enforce the constitution as the paramount law, whenever a legislative enactment comes in conflict with it. But the courts sit, not to review or revise the legislative action, but to enforce the legislative will and it is only where it finds that the legislature has failed to keep within its constitutional limits, are courts at liberty to strike down the law. Nevertheless, in declaring a law unconstitutional a Court must necessarily cover the same ground which has already been covered by the legislative judgment, and must not indirectly overrule the decision of that coordinate department. The task is therefore, a delicate one, and only to be entered upon with reluctance. To hold that a body to whom the people have committed the sovereign function of making the laws for the commonwealth, have deliberately disregarded the limitations imposed upon this delegated authority, and usurped power which the people have been careful to withhold and it is almost equally so when the Act which is adjudged to be unconstitutional appears to be chargeable rather to careless and improvident actions or error of judgment, than to intentional disregard of obligation. But it is a duty which courts in a proper case are not at liberty to decline. The law on this subject appears to be, that, except where the constitution has imposed limits upon the Legislative power, it must be considered as practically absolute, whether it accords with natural justice or not in any particular case. The courts are not the only guardians of the rights of the people of the State, unless those rights are secured by some constitutional provision which comes within the judicial cognizance. The remedy for unwise or oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fails, the people in their sovereign capacity can correct the evil; but courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the constitution. It cannot run a race of opinions upon points of right, reason and expediency with the law making power. Any legislative act which does not encroach upon the powers apportioned to the other departments of the Government, being prima facie valid, must be enforced, unless restrictions upon the legislative power can be pointed out in the constitution and the case shown to come within them. We may also consider the tests for judicial review of sub-ordinate legislation, more so a regulation made under the Town Planning Statute. Reference may be made to the judgment of the Supreme Court in (Bombay Dyeing and Mfg. Co. Ltd. (3) Vs. Bombay environmental Action Group), 2006 (3)Bom. C. R. (S. C.)260 : (2006)3 S. C. C. 434 and to the following paragraphs 104, 105, 115, 116, 117,118, 119 and 123 which read as under:-104. A policy decision, as is well known, should not be lightly interfered with but it is difficult to accept the submissions made on behalf of the learned Counsel appearing on behalf of the appellants that the courts cannot exercise their power of judicial review at all. By reason of any legislation, whether enacted by the legislature or by way of sub-ordinate legislation, the State gives effect to its legislative policy. Such legislation, however, must not be ultra vires the constitution. A sub-ordinate legislation apart from being intra vires the Constitution, should not also be ultra vires the patent Act under which it has been made. A sub-ordinate legislation, it is trite, must be reasonable and in consonance with the legislative policy as also give effect to the purport and object of the Act and in good faith. 105. In (P. J. Irani Vs. State of Madras), (1962)2 s. C. R. 169, this Court has clearly held that a sub-ordinate legislation can be challenged not only on the ground that it is contrary to the provisions of the Act or other statutes; but also if it is violative of the legislative object. The provisions of the sub-ordinate legislation can also be challenged if the reasons assigned therefor are not germane or otherwise mala fide. The said decision has been followed in a large number of cases by this court. See also (Punjab Tin Supply Co. Vs. Central Govt.), (1984)1 S. C. C. 206. . "

(3.) THE petition was filed for reviewing the existing "development Control Regulations for Greater Bombay, 1991". Petitioner No. 1 claims as an N. G. O. espousing legal issues concerning the State and the nation before the concerned authorities for resolution, in the larger public interest. The second petitioner is a Resident of Juhu vile Parle Development Scheme and President of the first petitioner. Some of the reliefs as originally prayed for read as under :-