mgn 1 n.m.294-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.294 OF 2011 IN WRIT PETITION NO.1152 OF 2002 Citi Space & Ors. ..Petitioners Versus State of Maharashtra & Ors. ..Respondents And Nathani Parekh Constructions Pvt.Ltd....Applicants Mr. V.A. Thorat, Senior Advocate with Mr. B.M. Shroff and Mr. Chandra Naik i/b. Chandra Naik & Associates for the Applicants. Mr. Gautam Patel with Mr. Zulfikar A. Jariwala i/b. M/s. Thakore Jariwala Associates for the petitioners. Mr.R.S.Apte,Senior Advocate with Ms.Geeta Joglekar for Respondent- B.M.C. Mr. R.S. Mane, AGP for respondent State. Mr. G.D. Uttangale, for respondent-SRA CORAM : MOHIT S. SHAH, C. J. AND SMT. R.P.SONDURBALDOTA , J. DATE : Tuesday, 28th June, 2011 PC: This Motion is taken out by the third party for direction to respondent No.3-Municipal Corporation of Greater Mumbai to grant necessary permission to the applicants for implementation of the redevelopment scheme of the property bearing C.S. No.1/1902 of mgn 2 n.m.294-11.sxw Byculla Division undertaken by the applicants under Regulation 33(7) of Development Control Regulations for Greater Mumbai and reconstruction of the building at the site in question. The applicants are the owners/landlords of the property in question which is land admeasuring 841..98 sq. mtrs. There is a building known as Sabuwala building constructed about 80 years ago and it was in dilapidated condition and, therefore, demolished by the applicants in 2010. The applicants have produced the property card and other documents much prior to 1st September, 1940. 2. The entire building was occupied by the tenants of the applicants. Since the building was in dilapidated condition the Mumbai Building Repairs and Reconstruction Board had issued notice dated 7th March, 2007 under Section 88(3) of the MHAD Act. The applicants obtained 100% irrevocable consent from all the tenants/occupants of the building for redevelopment of the property. The applicants entered into redevelopment agreements with the tenants/occupants of the building to give them permanent alternative accommodation in the new building in lieu of their tenements. By letter dated 24th April, 2009 MHADA granted permission for reconstruction of the said old building and redevelopment of the said property. It is not necessary to set out any further history of the said project except to state that the Executive Engineer (Development Plan) of respondent No.3-Municipal Corporation of Greater Mumbai granted permission and No Objection for redevelopment of the property on certain terms and conditions including the condition that the applicants shall keep 33% of the plot area i.e. 277.85 sq. meters out of 841.85 sq. meters for recreation ground and the remaining 67% can be developed after demolition of the old building. mgn 3 n.m.294-11.sxw 3. The applicants have taken out the present Notice of Motion in view of the objection raised by respondent No.3-Municipal Corporation of Greater Mumbai as stated in paragraph 14 of the affidavit in support of the Notice of Motion, based on the order of this Court passed on 31st July, 2002 in Writ Petition No.1152 of 2002(Public Interest Petition). 4. The relevant portion of the said order dated 31st July, 2002 reads as under:- “3. Adjourned for four weeks. In the meantime, until further orders, no new rehabilitation scheme be sanctioned without the permission of this Court in respect of the open spaces which are reserved for gardens, parks, playgrounds, recreational spaces, maidans, no-development zones, pavements, roads and carriageways.” 5. Mr. Thorat, the learned Senior Advocate for the applicants submits that Writ Petition No.1152 of 2002 is Public Interest Litigation which is filed for challenging the policy of the State Government as contained in the Notification dated 3rd June, 1992 particularly the policy guidelines contained in the Schedule to the said Notification for Development Plan of Greater Mumbai for implementation of lands allocated to various users designated/reserved sites occupied by slums. It is submitted that the entire Notification is applicable only to lands occupied by slums and not to other recreational grounds, playgrounds, garden, parks or lands reserved for any other open users in the final development plan. Our attention is invited to the prayers in the said Public Interest Litigation. 6. It is, therefore, submitted that the interim order dated 31st July, 2002 cannot be held out against the applicants when the applicants are mgn 4 n.m.294-11.sxw merely redeveloping the existing property by demolishing the old building and constructing a new building which would be occupied by the tenants by reconstructing a new building in which those tenants will be granted permanent alternative accommodation, apart from others, free sale tenements. It is submitted that in any case the applicants are complying with the condition of redevelopment that the applicants have to keep 33% of the total plot area for recreational purpose. 7. Mr. Gautam Patel, the learned Counsel for the petitioners does not dispute that the scope of the PIL is against the curtailment of open spaces reserved for playgrounds and recreational purposes which are occupied by slums. 8. The learned Counsel for the State and the learned Counsel for the Municipal Corporation of Greater Mumbai are also not in a position to dispute the submissions made on behalf of the applicants. 9. In view of the above, we dispose of this Notice of Motion with clarification that the interim order dated 31st July, 2002 is not applicable to the land bearing C.S. No.1/1902 of Byculla Division on which the present applicants are redeveloping the property which was constructed prior to 1st September, 1940. 10. We make it clear that all that we have clarified is about the applicability of the interim order dated 31-7-2002 of this Court in Writ Petition No.1142/2002 to the land in question and whatever statutory provisions the applicants will have to comply with shall be complied with by the applicants. We may not be treated to have directed any authority to pass any order in favour of the applicants. The Municipal Corporation of Greater Mumbai shall accordingly process the application of the mgn 5 n.m.294-11.sxw applicants for redevelopment of the property in accordance with law. 11. Notice of Motion stands disposed of accordingly. CHIEF JUSTICE SMT. R.P.SONDURBALDOTA , J.