gopi 1 pil0147-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY. ORDINARY ORIGINAL CIVIL JURISDICTION PUBLIC INTEREST LITIGATION NO.147 OF 2009 Joshi Shivshankar Jatashankar ...Petitioner V/s. The State of Maharashtra & Ors. ..Respondents. Petitioner in person. Mr. M.A. Saiyed, AGP for Respondent Nos. 1 and 2. Mr.G.D. Uthangale, for respondent No.3. Ms. Geeta Joglekar, for respondent Nos. 4 and 5. Mr. Shailesh Shah, Senior Advocate with Mr. Suresh Dubey, for respondent No.6. Mr. D.D. Madon, Senior Advocate with Ms. Jyotsana Pandhi for respondent Applicant Society. CORAM: MOHIT S. SHAH, C.J., AND MRS.ROSHAN DALVI, J. DATED : 10 October 2011. P.C. In this petition filed in December 2009 the petitioner has prayed for the following reliefs:- “(a) That a writ certiorari, writ of Mandamus or any other appropriate writ, order or direction be issued calling upon the respondents to cancel or revoke permission No.SRA/Eng/947/N/STGL/LOI, dated 07th Feb. 2006, the grant of C.C., I.O.D. and sanctioning of the Building Proposal by SRA or by Building Proposal Department, Eastern Suburb Mumbai. gopi 2 pil0147-09 (b) That a writ of certiorari, writ of Mandamus or any other appropriate writ, order or direction be issued to stop the further construction of buildings on the aforesaid plot of land 194-A (part) at Ghatkopar, Kirol, Savitribai Phule Nagar, and further that the portion of the building abutting on Ankush Gawde Road, and the entire Building constructed on reserve plot of land be stopped and demolished. (c) That a writ mandamus be issued against the Respondent No.1 to 5 to take all necessary steps to construct and widen the road from Panth Nagar Link Road to Gurunanak Nagar to the width of 90 ft.” 2. The petitioner appearing as party in person contends that the building permission granted by the Municipal Corporation of Greater Mumbai for construction on the aforesaid land is contrary to law because the Corporation has decided to widen the road from Panth Nagar to Gurunanak Nagar by extending the width of the road from 12.20 meters to 27.45 meters i.e. from the existing road width of 40 ft. to the width of 90 ft. for catering the ever increasing vehicular traffic. It is submitted that by permitting the developer, respondent No.6 to put up construction on the land reserved for school, the Corporation has committed serious illegalities. 3. The case of the respondent Municipal Corporation and the developer is that the plot in question was reserved under the development plan for Secondary School. As the plot was encroached upon by slum dwellers, the Municipal Corporation could not construct the Secondary School. In view of the above, on the basis of the policy guidelines for development plan for Greater Mumbai, the lands reserved gopi 3 pil0147-09 for various purposes, but occupied by slum dwellers are to be permitted to be developed by providing rehabilitation accommodation to the slum dwellers and also to develop part of the land for the purpose for which it was reserved. The relevant guidelines read as under:- “(i) Existing Slums on lands reserved for Primary or Secondary Schools may be developed subject to the following:- (b) In the case of lands affected by the designation or reservation of a secondary school in the Development Plan, a building for accommodation of such member of students as may be decided by the Municipal Commissioner, not in any case for less than 800 students, shall be constructed by the Owner or developer at his cost according to the size, design, specification and conditions prescribed by the Municipal Commissioner, the built – up area occupied by the constructed building shall be excluded for the purpose of FSI computation. The constructed building shall be handed over to the Corporation free of cost and charge and the Municipal Commissioner may hand over the same or part thereof intended for the school use to a recognized and registered educational institution for operation and maintenance on terms decided by him. Thereafter the land may be allowed to be redeveloped with full permissible FSI of the plot according to sub-regulations (10) of Regulation 33 read with Appendix -IV of the said Regulations.” 4. In view of the above guidelines, the Slum Rehabilitation Authority sanctioned the plans for construction of a building for Secondary School on the part of the land which will be handed over to the Municipal Corporation free of cost and the balance portion of the plot of land is permitted to be developed for construction of the rehabilitation buildings and also for construction of free sale buildings. gopi 4 pil0147-09 Accordingly the Letter of Intent has been issued by the S.R.A., for carrying out construction as per the above scheme. 5. It is pointed out by the learned counsel for the Municipal Corporation, the learned counsel for the S.R.A., and the learned counsel for respondent No.6-developer that when the impugned building permmission was granted on 7 February 2006, the width of the existing road was 40 ft. and it was proposed to expand the width of the road to 27.45 meters i.e. 90 ft. However, respondent No.6 pointed out that since the width of the existing road on the date of grant of building permission in February, 2006 was only 40 ft., the building plans were prepared accordingly and the rehabilitation buildings have already been constructed on that basis. It is, therefore, submitted by the learned counsel for the developer that if the width of the road is to be expanded by 90 ft., the rehabilitation buildings will have to be demolished. Out of 184 slum dwellers, around 160 slum dwellers and their family have already vacated their huts and they have shifted to transit accommodation provided by respondent No.6 developer. If the rehabilitation buildings are demolished, apart from causing irreparable loss to respondent No.6 the slum dwellers themselves will not be able to get permanent alternate accommodation. 6. It is stated in the reply dated 6 April 2011 of the S.R.A., that the S.R.A., by its letter dated 26 June, 2009 requested the Municipal Corporation not to insist upon widening of the road in question because the proposal for widening the road was made after a lapse of 3 years after the date of sanction of the scheme. The Letter of Intent was issued on 17 February 2008 and the further permission by IOD and CC were also issued on 16 November 2006 and 9 January gopi 5 pil0147-09 2007 respectively. Accordingly, respondent No.6 initiated construction activities on the said land and it appears that in March 2009 the Additional Municipal Commissioner, Eastern Suburb called a meeting to discuss about widening regular line of road from 12.20 metres to 27.45 metres. Hence by letter dated 4 April 2009 the S.R.A., had informed the Municipal Corporation that it was not possible to widen the road to 27.45 metres for the aforesaid reasons. 7. In view of the above situation, the S.R.A., and the Municipal Corporation have decided to revise the width of the road to 18.30 meters i.e. 60 ft. as per the consensus at the meeting held on 20 August 2011. The Municipal Corporation has, however, to follow the procedure under Section 297(1)(b) of the Mumbai Municipal Corporation Act for effecting this change and will also require to issue public notice inviting suggestions/objections. Ms. Geeta Joglekar, the learned counsel for the Municipal Corporation states that pursuant to the above decision, the public notice will be issued within one week from today inviting suggestions/objections from the members of the public and after considering the suggestions/objections, if any, to the width of the road the final decision will be taken by the Competent Authority. 8. As far as construction of the rear portion of the building on the Nala land is concerned, the petitioner submits that the rear portion of the building is on the Nala and it may obstruct the flow of water. It is pointed out in paragraph 6 of the affidavit in reply filed by respondent No.6 as follows:- “6. There is Nala approximately having 12 metres width. There is a proposal to expand the width of the Nala. As per the said gopi 6 pil0147-09 proposal around 21 slum dwellers who fall within that proposed expanded area of the Nala are included in part of the slum rehabilitation scheme to be carried out by the respondent No.6. If the scheme is permitted and allowed to be completed those hutment dwellers who are residing on that area of expansion of Nala will be automatically accommodated in a new building to be constructed on the said plot and the said area will become vacant and it will be possible to extend the width of Nala. Except two – three persons remaining 17 to 18 slum dwellers have been vacated and they have been provided transit accommodation by the Developer and those persons will ultimately get new premises in a new rehabilitation building when constructed on the plot. So the said scheme is in the interest and for benefit of expansion of Nala”. 9. It is further stated in the reply filed on behalf of the S.R.A., that the rear portion of the building is abutting the existing Nala and that necessary remarks from storm water drain department of the Municipal Corporation have been obtained. As per the said remarks the Nala wall is to be constructed by respondent No.6. 10. The learned counsel for respondent No.6 upon taking instructions from the respondent No.6 states that the respondent No.6 undertakes to construct the Nala wall as required by the storm water drain department within four months from today for which respondent No.6 will make an application within two weeks from today. Respondent no.6 shall file an affidavit in that behalf within two weeks from today. gopi 7 pil0147-09 11. In view of the above, it would appear that the public interest petition served the purpose by alerting the authorities for ensuring that the rehabilitation buildings do not fall upon the road proposed to be expanded. Since the width of the road is now proposed to be kept at 60 ft. there will not be need to demolish the rehabilitation buildings in which 184 slum dwellers families are to be accommodated by giving them permanent alternate accommodation. 12. In view of the above, we do not think that any further directions are required to be given in this Public Interest Litigation. The Public Interest Litigation is accordingly disposed of recording the above statements viz:- 1. That respondent No.6 will construct a Nala wall within four months from today. 2. That the Municipal Corporation will follow the procedure under Section 297 (1)(b) of the Mumbai Municipal Corporation Act regarding widening of the road in question. (CHIEF JUSTICE) (MRS. ROSHAN DALVI, J.)