Full Judgment Text
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CASE NO.:
Appeal (civil) 1548 of 2006
PETITIONER:
Municipal Corporation of Greater Mumbai
RESPONDENT:
Bombay Environmental Action Group
DATE OF JUDGMENT: 07/03/2006
BENCH:
S.B. Sinha & P.P. Naolekar
JUDGMENT:
J U D G M E N T
[Arising out of SLP (C) No. 25434 of 2005]
S.B. SINHA, J :
Leave granted.
This appeal has been preferred by the Municipal Corporation of
Greater Mumbai (MCGM) whereby the conduct of MCGM had been
criticised under the caption "Certain Disturbing Aspects".
The High Court commented that the Appellant had admitted that
the developers are not providing for any public amenities. The
submission of Mr. K.K. Singhvi, learned senior counsel appearing on
behalf of the Appellant is that the information sought for had been
supplied by the Appellant by way of affidavits affirmed by the Chief
Engineer (DP) on 14.9.2005 and 15.9.2005 wherein it was pointed out
that in terms of Development Control Regulation (DCR) 27, only 5% of
the total area was to be designated as "Amenities" only when the plot
area exceeds 2 hectares. In view of the fact that the said DCR 27 was
required to be read with DCR 58, as the share of the owner was less
than 2 hectares, the lands were permitted to be developed as there was
no requirement to provide additional 5% public amenities. It has not
been shown that DCR 27 has been violated. The High Court,
furthermore, held that MCGM took no steps as regard compliance of
EIA notification until they directed to do so during the final hearing of
the writ petition. It is not in dispute that completion or occupation
certificate had not been given and as such no prejudice had been caused
to anybody.
Mr. Singhvi submitted that MCGM was under the belief that the
mill owners/ developers could produce the required permission of
MOEF before submitting completion certificate and obtaining
occupation certificate.
Indisputably, the requirements of EIA notification were required
to be complied with. We have deliberated upon this question in Civil
Appeal arising out of S.L.P. (C) No. 23040 of 2005 [Bombay Dyeing &
Mfg. Co. Ltd. v. Bombay Environmental Action Group]. It was
furthermore opined by the High Court that MCGM had not ensured that
all the mill owners should provide free housing of 225 sq. ft. to the
occupants.
It was rightly submitted by Mr. Singhvi that the mill owners in
none of the cases had come forward for development/ redevelopment of
residential built up area occupied by the chawls and, therefore, the
question of allotting housing area of 225 sq. ft. to each occupant never
arose in terms of DCR 58(7). In terms of DCR 58(7), the eligible
occupants are to be provided alternative accommodation of 225 sq. ft.
and only then the developer would be able to utilise the vacant land
and, therefore, such questions would arise when the areas covered by
the chawls are to be developed and till then the occupant would remain
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in their tenements.
As regard the finding of the High Court that the Appellant has
not ensured surrendering of lands for "open spaces" and "public
housing" at the time of issue of commencement certificate, it was
contended that surrendering of land is possible when the encumbered
portions of the land are cleared and relocated in such a manner as to
facilitate availability of vacant land for assigning them to housing as
well as open spaces facilitating proper access to such lands.
It is not the requirement of law that such physical surrender of
land is obtained for such purposes at the time of issuing initial
commencement certificate itself.
Mr. Singhvi has further pointed out that while considering the
purported concession said to have been made by him that the MCGM
did not have even a single officer with the qualification of Town
Planning, the High Court failed to take into consideration that the
qualifications of the Town Planning Officer are laid down in the statute
and all the concerned officers fulfil the statutory requirements.
We agree with the contentions raised by Mr. Singhvi.
Furthermore, having regard to the judgment and order proposed to be
delivered in the main matter [Civil Appeal arising out of S.L.P. (C) No.
23040 of 2005], we are of the opinion that such comments of the High
Court were probably unnecessary and, therefore, directed to be
expunged. The appeal is allowed.