Mumbai The Bombay High Court (HC) in its order prohibiting the BMC from constructing the cycling/jogging path bordering Lake Powai ruled that although the lake is not notified as a wetland and a notification must be issued at this regard, the track being built was within the teeth of the regulations and therefore could not be cleared.
The Development Control Regulation (DCR) 2034 stipulated a buffer zone of 100 meters on the outskirts of Lake Powai to prevent siltation of the lake and soil erosion.
The court further held that since DCR 2034 did not define construction, it assumed that the construction of the cycle/jogging path fell within the definition of the word ‘construction’ in the Oxford dictionary and therefore prohibited it.
The divisive bench of Chief Justice Dipankar Datta and Justice VG Bisht in his 17-page order in Public Interest Litigation (PIL) filed by IIT-Bombay PhD students Omkar Supekar and Abhishek Tripathi, the NGO Vanshakti and Activist Stalin Dayanand and Activist Zoru Bathena’s interim claim against the cycle/jogging path being built by the BMC argued that although the lake has been included in the National Atlas of Wetlands, without proper notification from the relevant central ministry, it could not be considered a wetland.
In its order, the bench said a lake was only a notified wetland if it met the requirements set out in the Central Ministry’s September 2017 notification. “In the present case, simply showing that Lake Powai has been notified as a wetland in the National Wetlands Atlas on the map will not satisfy the requirement of the aforementioned notification dated September 26, 2017. It basically requires notification. Powai Lake shall and must be notified as a Wetland as per the notification dated September 26, 2017 issued by the Ministry of Environment, Forests and Climate Change, Government of India, New Delhi. Admittedly, no such notification exists to date.
The bench then referred to DCR Regulation 2034 in which stipulations were made specifically with regard to construction on the outskirts of Powai and Vihar lakes. “In order to prevent soil erosion and siltation of lakes, an exclusive green belt of 100m will be provided around the outskirts of Vihar and Lake Powai, in which no construction will be permitted.”
In light of DCR Regulation 2034, the court held that “a simple reading of the above regulation would show that an exclusive green belt of 100m would be provided around the periphery of Vihar and Powai Lakes and in order to prevent the soil erosion and siltation of lakes, no construction activity of any kind is permitted. Apparently, Respondent MCGM’s activity is inconsistent with this settlement.
The court also rebutted the BMC’s assertions that the use of Gabion technology was in no way a construction activity in the order stating that since DCR 2034 had not defined the word construction, it assumed the Oxford dictionary definition. “The fact that the word ‘construction’ is not defined anywhere in DCR 2034 is a major concern. In the absence of it, a clear and natural meaning should be attributed. The Oxford English Reference Dictionary, 1995 edition defines the term “to build” as being made by joining parts, building, forming. Similarly, in the Concise Oxford Dictionary, Twelfth Edition, 2011, “build” means to construct or erect. So, to put it simply, construction is the act of building or erecting.
In light of the definition above and the photographs placed in front of which showed large scale backfilling/reclamation, metal frames raised over a body of water for rock dumping and tarmac road laying along the perimeter area of the lake, the court found the allegation that the gabion technology was being used to invigorate and rejuvenate the physical and natural environment of Lake Powai to be hard to swallow. The court observed: “Needless to say, the respondent MCGM in this case has undertaken to undertake the remediation under the guise of the use of ‘Gabion technology’.
Gabion technology consists of placing PVC coated galvanized iron wire mesh baskets, containing stones of different sizes, without any carpentry, fixing or cement mortar on which a thin layer of cement board/synthetic composite board and macadam/tar to allow walking/cycling.