1 srk nm-417-06.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.417 OF 2006 IN PUBLIC INTEREST LITIGATION NO.87 OF 2006 The Bombay Environmental Action Group and another. ... Petitioners Versus The State of Maharashtra and others. ... Respondents And Dhanraj Co-operative Housing Society Ltd. ... Applicant/intervener Ms. Nityoah S. Mehta i/by M/s. Nityoah Suned & Associates for the applicant. Mr. G.S. Patel i/by J/s. M.V. Jayakar & Co. for the petitioners. Mr. K.K. Singhvi, Senior Advocate with Ms. Geeta Joglekar for MCGM. Mr. N. Pandit, Assistant Government Pleader for State. Mr. Rui Rodrigues with Mr. N.R. Prajapati for Union of India. Mr. A.A. Garge for NMMC. CORAM : MOHIT S. SHAH, C.J. & S.J. KATHAWALLA, J. Friday, December 03, 2010 P .C. Leave granted to amend the prayer clause of the above notice of motion in respect of Plot No.121. 2. The notice of motion was taken out on 28th July, 2006 but in view of the subsequent developments, we have permitted the applicant-society to amend the prayer clause. 3. Plot No.121 allotted to the applicant-society and Plot No.56 allotted to Om Shri Vinayak Co-operative Housing Society Ltd. are adjacent to 2 srk nm-417-06.sxw each other. Both the societies were initially granted construction permission by the Navi Mumbai Municipal Corporation in the year 2004. However, the Corporation issued stop work notice to Om Shri Vinayak Co-operative Housing Society Ltd. and the applicant-society in December, 2005 on the basis of the oral instructions of the Collector, Thane who purported to do so on the basis of the allegations that the construction was coming up within 50 meters of the land under mangroves. 4. Thereafter Om Shri Vinayak Co-operative Housing Society Ltd. filed notice of motion No.416 of 2006 and the present applicant society filed present notice of motion No.417 of 2006 for directing the respondent- Corporation to withdraw the stop work notice on the ground that their plots were not within 50 meters of the land under mangroves. In notice of motion No.416 of 2006, the Municipal Commissioner of Navi Mumbai Municipal Corporation filed affidavit admitting that the lands in question did not fall within 50 meters of the land under mangroves or did not fall under the category of protected forest. 5. In view of the said affidavit, this Court passed order dated 14th January, 2009 in notice of motion No.416 of 2006 allowing the notice of motion with the following observations: "It is the contention of the applicants that their building does not come within CRZ I or II both and does not fall within 50 meters from the mangroves. This fact has now been accepted by the Respondent-Municipal Corporation, who had issued stop work notice and the respondent-Coastal Zone Management Authority. In view of this, no orders are required to be passed in the Notice of Motion for the reason that the applicants can complete their project as it does not contravene any statutory provisions including CRZ I and II and as the building is located 50 meters away from the 3 srk nm-417-06.sxw mangroves, the prohibitory orders passed by this Court on 6th December, 2005 do not apply to their case." 6. The applicant-society contends that it is similarly situated as Om Shri Vinayak Co-operative Housing Society Ltd. and is entitled to the same reliefs. 7. Having heard the learned counsel for the parties including the learned counsel for the Navi Mumbai Municipal Corporation and the learned counsel for the writ petitioners in the PIL, we are satisfied that the applicant- society deserves to be granted the same relief which was granted to Om Shri Vinayak Co-operative Housing Society Ltd. as far back as on 14th January, 2009. 8. Accordingly, the notice of motion is allowed. Since the plot allotted to the applicant-society is more than 900 meters from the land under mangroves, we direct Navi Mumbai Municipal Corporation to consider the applicant's application for approval of the amended building plans submitted in 2009 without raising any objection qua the mangroves. 9. Having regard to the statement made by the learned counsel for the applicant-society that the applicant-society had demolished the building which was constructed in the year 2007-2008 and that the applicant-society is now seeking approval of the amended building plans for putting up a new construction, it is obvious that the prayer of the writ petitioners in PIL for demolition of the construction put up by the applicant-society on plot No.121 does not survive. 4 srk nm-417-06.sxw 10. The learned counsel for the writ petitioners shall bring this order to the notice of the Court when PIL No.87 of 2006 or notice of motion No.33 of 2007 is heard. 11. As regards the applicant's prayer for compensation from the Navi Mumbai Municipal Corporation, we do not propose to express any opinion at this stage. Let this matter be listed on 13th January, 2011. CHIEF JUSTICE S.J. KATHAWALLA, J.