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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.