Mumbai HC upholds state’s ban on hilltop, slope construction


City high court recently upheld the state government’s directives to prohibit construction on hilltops and hill slopes and expected everyone concerned to conform to a 100 feet no-development buffer zone around the hills.


A bench of justices S C Dharmadhikari and Anuja Prabhudesai said the state has exercised its power not to defeat the purpose of a law that regulates construction and development, but to ensure that civic and state bodies take “measures to preserve ecology and prevent environmental damage, accidents resulting in loss of human life and property.’’


The high court dismissed a clutch of petitions filed by members of housing societies and builders from Mumbai and Pune challenging two orders of the National Green Tribunal in Pune and the November 2017 hilltop policy.


The bench found no merit in the submissions as it amounted to illegally altering the development plans for these cities and held that the state “cannot be faulted’’.


The state had, on November 14, last year, using its powers under Maharashtra Regional Town Planning Act, a law meant to regulate real estate development, directed that no development is permissible on hilltops and slopes having depth of less than 1.5km and that an area of 100ft surrounding or abutting the hills should not be used for construction but declared ‘non-buildable.’


The petitioners, Harshada Cooperative Housing Society in Kothrud with many senior citizens looking for “urgent redevelopment” of their 30-year-old building, developers D B Realty, Suyog Developers and Shah Promoters and Developers, along with Practising Engineers Architects and Town Planners Association (India) through their counsels Milind Sathe, Girish Godbole, Saket Mone, Birendra Saraf and Rutuja Patil contended that both the NGT orders and the state’s circular, were legally flawed.


The state lacks power, under MRTP, to change the DP without hearing all stakeholders, they argued. The HC, however, found no evidence of abuse of power by the state or any “subversion”. 


It agreed with government lawyers BV Samant, Jyoti Chavan and Geeta Shastri that its directive which essentially also clarifies the hill gradient, was in the larger public interest.


Sathe and Saraf argued that the power under MRTP to issue directives does not extend to changing the Development Control regulations, which the Supreme Court has held in three separate rulings.


The state’s decision merely supplements what the civic bodies are empowered to do to regulate construction based on the principles of sustainable development through a constitutional duty to protect environment, the HC held in its August 6 ruling.


While permitting development, the mandate of Article 21 (Right to life) of the Constitution cannot be ignored, the HC said.


The court stated, “Conservation of ecology and environment and preventing damage to them are but features of every development plan.’’


It added, “Preservation of natural scenery and surroundings and conservation of hills is thus implicit… Equally, ecological imbalance and damage can be prevented by ensuring that there is no breaking or cutting of hills nor undertaking of such activity in or around the same by which there would be landslides, mudslides and rubble and debris can then fall from hilltops straight on roads or on dwelling houses.’’


“We have not been shown any material by any of the petitioners by which they can claim that in the areas which are identified as hilltops and hillslopes, there is absolutely no restriction. Rather, we have seen that there is prohibition on development and construction activities as far as a hilltop is concerned,’’ the HC observed in its judgment.

Written by The Realty Paper

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