- 1 - rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION P.I.L. WRIT PETITION NO.326 OF 2004 1.Save Mumbai from Terrorism,a Voluntary Association having its office at Shop no.7,Oscar Towers, Ground Floor, 28, Maratha Mandir Road, Mumbai-400 008. 2.Shabbir Noormohmed Patel, the President of the Petitioner No.1 abovenamed and having his residence at Shabbir Apartment,Sherly Rajan Road, Bandra (West) Mumbai-400 050 ..Petitioners vs 1.Municipal Corporation of Greater Mumbai a body incorporated constituted under Brihanmumbai Municipal Corporation Act hav ing its office at Mahapalika,Opp C.S.T.Railway Station, Mumbai-400 001 2.The Municipal Commissioner Bombay Municipal Corporation having his office at Mahapalika Opp CST Railway Station, Mumbai-400 001. 3.The Assistant Municipal Commissioner E Ward,Bombay Municipal Corporation having his office at Building Proposal Department, 3rd floor, Shaikh Haifizudin Marg, Byculla, Mumbai- 400 008. 4.The Executive Engineer E Ward, Bombay Municipal Corporation having his office at Building Proposal Department,3rd floor, Shaikh Haifizudin Marg, Byculla,Mumbai- 400 008. - 2 - 5.The Maharashtra Housing and Area Development Authority having its office at Grihanirman Bhavan, Bandra (East) Mumbai-400 050 6.Abdul Aziz Abdul Sattar Noble of Mumbai Indian Inhabitant at Dastogir House, Maratha Mandir, Mumbai-400 008. 7.Badrushama Abdul Razak Flat no.901,Oscar Towers, 9th Floor, Mumbai-400 008. 8.Mrs Nafisa Azif Razak Jariwala of Mumbai Indian Inhabitant residing at Flat no.901, Oscar Towers,9th Floor, Mumbai-400 008. 9.Abdul Razak Ahmed Jariwala of Mumbai, Indian Inhabitant residing at Flat no.901,Oscar Towers, 9th floor, Mumbai-400 008. 10.State of Maharashtra 11.The Brihan Mumbai Electric Supply & Transport Undertaking a statutory undertaking having its main office at BEST Bhavan, BEST Marg,Colaba Causeway Mumbai-400 001. and concerned office at Consumer Department (North) BEST,Tilak Road, Dadar, Mumbai-400 014. .... Respondents - 3 - Mr.Darshan Mehta i.b M/s Dhruv Liladhar & Co for Petitioners Mr.Shyam Mehta Amicus Curiae Ms.Shobha Ajitkumar for Respondent nos.1 to4 Mr.Milind More AGP for Respondent nos. 5 and 10 Mr.H.Toor with Mr.S.K.Chari i.b M.V.Kini & Co for Respondent no.11 Mr.Raju Morey i.b Mr.V.S.Talkute for Respondent nos. 6 and 9. ... CORAM: F.I.REBELLO AND MRS.MRIDULA BHATKAR,JJ DATE: 16th April, 2010 JUDGMENT (Per Mrs Mridula Bhatkar, J) 1. By an order dated 19th December, 2003 the division bench of this High Court has dismissed this Public Interest Litigation. The petitioners approached the Supreme Court by filing S.L.P. (Civil) No.(CC) 1008/2004. In the said S.L.P.the Supreme Court has observed that there was previous animosity between the petitioner no.2 and the private respondents so Supreme Court declined to entertain the petition at the instance of the petitioners. However, the Supreme Court set aside the order of this Court expressing that in respect of the alleged unauthorized construction in question more detail examination is required and directed the High Court to appoint an Amicus Curiae - 4 - to assist in the said petition. In compliance of the said order Amicus Curiae was appointed and on 8th June, 2006 the division Bench ordered that in the fitness of things the Writ Petition would be heard finally at the time of admission at an early date. 2. The petitioners have challenged the illegal and wrongful construction which carried out by respondent nos. 6,7 and 8 at C.S.No.147 situate at 47, Kamathipura, 8th Lane, Mumbai-400 008. It was contended that the sanctioned plans and the construction was in total breach of the statutory provisions including Development Control Rules and Regulations. The petitioners have specified number of irregularities including parking place,balconies and absence of open space and balconies etc. The Bombay Municipal Corporation-respondent no.1 and MHADA- respondent no.5 were held responsible along with respondent nos. 6,7,8 and 9 private persons for carrying out this construction. The petitioner no. 1-Shabir Patel filed affidavits by which he highlighted the illegality in sanctioning parking place, which was illegally converted into shops and non-observance of Development Control Rules - 5 - regarding the boundary wall, inadequate space between the side boundary walls. 3. In reply, Mr.Nandkishor Swaroopchand Satle, Executive Engineer of E Ward of MHADA respondent no. 5 filed affidavit. Similarly, respondent no.1 respondent no.9 who is co-owner of the property has also filed an affidavit defending all the allegations in the writ petition. 4. Mr.Shyam Mehta, learned Amicus Curiae for the petitioners while addressing us on the point of unauthorised constructions pointed out the relevant provisions under the Development Control Regulations for Greater Mumbai, 1991. He argued that respondent no. 5 MHADA is authorised to repair and re-construct the cessed buildings and the existing tenants and occupiers in the impugned building are rehabilitated in the building though MHADA is not entitled by any surplus in for reconstructed buildings after calculating and consuming the available FSI. 5. Learned counsel Amicus Curiae drew our attention to Regulation 33 (vii) of the Development Control Regulations, for Greater Mumbai, 1991 by - 6 - which additional FSI is allowed in certain categories. He relied on the related provisions in Appendix III and Appendix IV (6) of D.C.Regulations, 1991. As per 6.24 of Appendix IV the Chief Executive Officer of Slum Rehabilitation Authority is competent to make any relaxation wherever necessary for reasons to be recorded in writing. 6. The Supreme Court has expressly made it clear that the petitioners have raised the issue in their private interest and therefore, the only limited issue of unauthorised construction is left to us to decide in the petition. The issue is related to the facts so it is verified on the basis of the affidavits filed by the parties. The affidavits disclose that an application under section 44/69 of the M.R.T.P. Act for redevelopment of the existing building No.76087 of Kamathipura standing on C.S.No. 147 by Byculla division, E Ward was received by the Corporation and proposal for redevelopment was sanctioned with 2.5 FSI by which the existing tenants/occupiers were rehabilitated. The list of the said tenants is produced at Exhibit 1. The open space on the front and rear side is left as per D.C.Regulations. However, on one side there was - 7 - deficit of 1.5 meters and therefore, it was condoned by charging the premium in terms of the D.C.Regulations. It appears from the affidavits that after receiving the complaint in the month of November, 2003 the Senior Inspector of Police, Nagpada police station along with the licensed Architect from registered Consultant Structural Engineer carried out inspection to find out whether the actual construction was in accordance with the permission issued for redevelopment work on the basis of NOC granted by MHADA. On perusal of the affidavits filed by the petitioners and the respondents especially affidavits of Mr.Nandkishor Satle Executive Engineer E Ward and of Mr.R.G.Sharma A.E. (Civil) E ward and on hearing the Amicus Curiae we hold view that the disputed construction on the land is not unauthorised. The respondent no. 9 will be bound by the earlier undertaking given to the court and which was accepted by this court. 8. In view of these facts and provisions of law, and considering submissions made by the learned Amicus Curiae; nothing remains in the petition. We have not come across violation of any statutory rules and D.C.Regulations. - 8 - Hence, the petition is dismissed. Mrs Mridula Bhatkar, J F.I.Rebello, J - 9 - - 10 -