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Mumbai The Bombay high court (HC) in its order restraining the BMC from constructing the cycling/jogging track bordering Powai lake has held that though the lake is not notified as a wetland and a notification needs to be issued in this regard, the track being constructed was in the teeth of the regulation and hence could not be allowed.

The Development Control Regulation (DCR) 2034 regulations stipulated a 100-meter buffer zone in the periphery of Powai lake to avoid silting in the lake and soil erosion.

The court further held that as the DCR 2034 did not define construction, it was assuming the construction of the cycling/jogging track to be under the definition of the word ‘construct’ in the Oxford dictionary and hence disallowing the same.

The division bench of chief justice Dipankar Datta and justice V G Bisht in its 17-page order in the public interest litigations (PIL) filed by IIT-Bombay PhD students, Omkar Supekar and Abhishek Tripathi, NGO Vanshakti and activist Stalin Dayanand and interim application by activist Zoru Bathena against the cycling/jogging track being constructed by the BMC held that though the lake was included in the National Wetland Atlas, without a proper notification by the concerned central ministry, it could not be considered a wetland.

In its order, the bench said that a lake was a notified wetland only if it satisfied the requirements laid down by the September 2017 notification by the central ministry. “In the case in hand, merely showing that the Powai lake has been notified as a wetland in the National Wetlands Atlas in the map will not satisfy the requirement of aforesaid Notification dated September 26, 2017. It essentially requires a notification. Powai Lake must and necessarily be notified to be a wetland in accordance with the Notification dated 26th September 2017 issued by Ministry of Environment, Forest and Climate Change, Government of India, New Delhi. Admittedly, no such Notification exists as of now.”

The bench then referred to the DCR 2034 regulations wherein stipulations have been made specifically with regard to construction in the periphery of both Powai and Vihar lakes. “In order to prevent erosion of soil and silting in lakes, an exclusive green belt of 100m shall be provided around the periphery of Vihar and Powai Lake, in which no construction whatsoever shall be allowed.”

In light of the DCR 2034 regulation, the court held, “A bare reading of the above Regulation would show that an exclusive green belt of 100 m would be provided around the periphery of Vihar and Powai Lakes and in order to prevent erosion of soil and silting in lakes, no construction activity of whatsoever nature shall be allowed. Apparently, the activity of the respondent MCGM is in the teeth of this Regulation.”

The court also refuted the claims of the BMC that the use of the Gabion Technology was in no way a construction activity in the order by stating that as the DCR 2034 had not defined the word construct, it was assuming the definition from the Oxford dictionary. “Of major concern is the fact that the word “construction” is nowhere defined in DCR 2034. In the absence thereof, a plain and natural meaning will have to be assigned. The Oxford English Reference Dictionary, Edition 1995 defines ‘construct’ as and means made by fitting parts together, build, form. Similarly, in Concise Oxford Dictionary, Twelfth Edition, 2011, ‘construct’ means build or erect. Thus, simply stating, construction is the act to build or erect.”

In light of the above definition and the photographs placed before which showed large scale land filling/reclamation, metallic frames raised on water body for dumping stones and laying of tar road along with the peripheral area of the lake the court held that the claim that the Gabion technology was being used for reinvigoration and rejuvenation of the physical and natural environment of Powai lake was hard to swallow. The court observed, “Needless to say, the respondent MCGM in the present case has induced itself to undertake the reclamation under the garb of use of ‘Gabion Technology’.”

Gabion Technology involves placing PVC coated galvanized iron wire mesh baskets in place, containing stones of various sizes, without any joinery, fixing or cement mortar on which a thin layer of cement board/synthetic composite board and macadam/tar to enable walking/cycling.

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