Disposed

Shail Rane and 2 Ors. v. State of Maharashtra and 9 Ors.

Bombay HC9 Feb 2012PIL/110/2012

Case brief

AI extract

What is this about?

In this PIL regarding Gilbert Hill preservation, the High Court declined to entertain the core petition alleging illegal construction outside the 2008 heritage notification. However, the Court directed the Municipal Corporation to ensure compliance with expert committee recommendations and to decide on landslide prevention methods within three months.

What did the court decide?

The petition was not entertained concerning illegal construction outside the notified zone. Directions issued to Municipal Corporation to ensure construction compliance with expert reports and to deci

Shail Rane and 2 Ors. Vs State of Maharashtra and 9… — Environment and Pollution | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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PUBLIC INTEREST LITIGATION (LODG.) NO.57 OF 2011

Shail Rane & Ors.

.. Petitioners

V/s.

State of Maharashtra & Ors.

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.. Respondents

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Mr.D.U. Siroya for the Petitioner Mr.R.R. Bhosale, AGP, for the Respondent State Mr.S.M. Modle for Resp. MMC

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Mr.Zal Andhyarujina with Z.A. Jariwala I/b Thakore Jariwala Asso. for Resp. No.9 Mr.Sanjay Jain I/b A.V. Jain Asso. for Respondent No.10 Mr.Rajiv Chavan with Naveena Kumai for Resp. No.3

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CORAM: MOHIT S. SHAH, C.J. & RANJIT MORE, J.

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DATED: FEBRUARY 9, 2012

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P.C.:

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By notification dated 2.2.2008 (exhibit K, page 75), the State Government through the Urban Development Department in exercise of powers vested under Regulation 67(3) of the Development Control Regulations of Greater Mumbai sanctioned the Gillbert hill structure and

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the area comprising of plot bearing CTS No.250A(Part), 250B, 250E, 251, 254(C) and 254A (Part) of village Andheri as Grade II-A heritage,

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as shown on the plan attached with the notification.

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The grievance in the present Public Interest Litigation is about construction activities on the land around Gillbert hill, particularly the construction being put up by Respondent Nos.9 and 10.

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It is necessary to note that in the year 2005, Writ Petition No.904 of 2005 was filed for the following reliefs:

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(a) That a writ of certiorari to be issued to the Respondents and restrain from removal and/or cutting, damaging and/or clearing the stones of Gillbert Hill lying, being and situated at Andheri (W), CTS No.254, 276, 277, 105, 108, 210, 211, 252, 250, 216.

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(b) That the writ of prohibition and/or any other writ to be issued and the Respondents be restrained from erecting multi storied buildings without obtaining valid permission from Ministry of Environment and tourism and metrological panel of scientists.

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(c) That the Respondents No.8 and 9 be directed to pay compensation and penalty for removal of stones of Gillbert Hills and damaging the Unique Hill, Natural Resources of the Nation and to deposit in the Welfare fund of the Government.

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(d) That pending the hearing and final disposal of the writ petition a panel of expert, scientists related to Geologists, Geographers, Meteoroligists be appointed to study and report the facts and importance of natural loss and environment and/or future affects due to removal of huge stones of the Gillbert Hill in the coaster area.

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(e) That the Respondents be directed to provide alternate accommodation to all the occupants of the slum against the structure prior to 1^st January 1995 and also draw Panchnama of

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hutments which are going to be demolished from time to time by an order of the competent authority and/or Respondent Nos.5, 8 and 9 be directed to review and reconsider the protections of the structure and annexure-2 on the basis of documents and survey.

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(f) That the Respondents be directed for strict implementation of slum rules and regulations and also for proper action at proper time in case of any illegal construction in slum areas after declaration of development scheme of SRA and/or survey and declare Annexure-2 and same to be reconsidered and modified at present as per rules.

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(g) Any other further reliefs as per the nature and circumstances of the case may be granted.

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Thereafter, in the year 2006, PIL No.123 of 2006 was filed for the following reliefs:

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(h) for a Writ of Mandamus or a writ in the nature of Mandamus directing the Respondents 1 to 8 to :

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(i) prevent any further construction, development, quarrying, blasting or excavation activities within minimum distance from outer boundary of Gillbert Hill and to clearly demarcate this area;

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(ii) prevent any further construction, development, quarrying, blasting or excavation activities in relation to the presently ongoing construction/development of the building and the approach road to building on the eastern side of Gillbert Hill constructed by Respondent No.8;

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(iii) to demolish all the incomplete structures that are located within the demarcated zone as prayed for in clause (a)(i);

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(iv) direct the respondent Nos.1 and 2 herein to declare the Durga Mata Temple situated on the Gillbert Hill and Gillbert Hill as Ancient Monument and Archaeological Site

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under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 or the Maharashtra Ancient Monuments and Archaeological Sites and Remains Act, 1960 and lay down further guideline regarding the development around the said Gillbert Hill;

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(v) direct the Respondent No.2 herein to include the Durga Mata Temple and Gillbert Hill as Heritage structure and direct the Respondent No.9 to include the same in the list of Heritage structure and provide for necessary protection and preservation of the same;

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(i) for an order of perpetual injunction to restrain the Respondent Nos.7 and 8 and their officers, servants, agents, representatives from carrying on any further construction, development, quarrying, blasting or excavation activities within a minimum distance of the outer boundary of Gillbert Hill, including any further construction of the building and the approach road to building on the eastern side of Gillbert Hill.

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(j) Pending the hearing and final disposal of this Petition, this Hon'ble Court be pleased to restrain Respondent No.4 from sanctioning building plans and Respondent No.5 from granting any quarrying licenses near the Gillbert Hill;

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(k) For a writ of Certiorari or a writ in the nature of Certiorari calling for the permissions granted to the Respondent No.8 in relation to the construction near the Hill and on perusing the same, quashing the said permissions and authorisation as being illegal and contrary to law;

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(l) For a writ of Certiorari or a writ in the nature of a writ of Certiorari calling for the permissions granted to the Respondent No.7 and 8 in relation to the construction of the approach road leading to building constructed by them and on perusing the same, quashing the said permissions and authorization as being illegal and contrary to law;

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(m) For interim and ad-interim reliefs in terms of prayer clauses (a)(i), (a)(ii), (a)(iv), (a)(v), (b) and (c).

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(n) For costs of this Petition.

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(o) For such further and other reliefs as this Hon'ble Court may deem fit in the facts and circumstances of the present case”

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In the above petitions, this Court passed order dated October 11, 2006 appointing a committee of Dr.S.Y. Mhaiskar, Professor in Civil Engineering and Principal, Sardar Patel College of Engineering and Mr.Cyrus R. Tata, Senior Civil and Soil Engineer to inspect Gillbert hill and to report to the court as to whether any development or construction by Respondent Nos.9 and 10 herein (which were respondent Nos.8 and 9 in the abovesaid petitions) or any other person in the area had resulted any damage to the Gillbert hill and whether any portion of the Gillbert hill was cut and / or removed for the development and to make suggestions for protection, preservation and conservation of the Gillbert Hill. The said committee submitted their report dated 12.3.2007 and particularly indicated the causes of instability and measures for protection, preservation and conservation of the Gillbert Hill. The committee also made detailed studies of vibrations and indicated the PPV vallues measured at different locations which were compared with the permissible PPV value of 2mm/sec. The studies indicated thus:

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“3. ANALYSIS OF MEASUREMENTS

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The PPV measured at different locations has been compared with the permissible PPV value of 2 mm./sec. (exhibit 17 of the Interim Report) Studies reveal the following: a) PPV resulting from the use of rock breaker are higher than those resulting from the use of vibratory roller.

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b) As the distance from the source increases the vibrations dampen and PPV value reduces. c) Within a distance of about 5 m the damping is substantial d) The PPV measurements indicate that construction equipment (road roller or rock breaker) does not cause harmful vibrations to the rock body at the site if the source of vibrations is at a distance of at least 5 m from the rock body.

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Although most commonly used construction equipment does not cause vibrations more than the permissible PV, in view of the geological importance of the rock body, protection, preservation and conservation measures need to be taken. These measures are outlined in the following section.

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MEASURES FOR PROTECTION, PRESERVATION AND CONSERVATION OF THE BILL.

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Based on the visual inspection and records available, it is apparent that due to the activities around the Gilbert Hill, the hill has shrunk and conditions that can damage the hill further are evident.

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Measures mentioned below are to prevent its further deterioration and its conservation:-

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Pave the area at the top to prevent seepage of water into joints, which cause widening of joints and subsequent toppling.

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Provide properly designed storm water drain (SWD) at the top of the hill. This should be done without cutting rock surface.

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Prevent any further excavation of hill sides and which would result in steepening of slopes or removal of support. 4. Create an area which should be turfed with a suitable fencing all round the base of the existing hill. No construction activity should be permitted in this area. The proposed extent of this area is shown in Exhibit-4.

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The UCR retainign wal near the Gaondevi Trust office should be dismantled and reconstructed with proper design

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and drainage provisions. Length of the wall should be increased. This would protect the flow of soil cover on te rock slope.

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Unite sides to prevent further erosion and weathering. However, weep holes should be provided to facilitate drainage to prevent development of pore pressures. This work is proposed on the South and South East side where there is soil overburden.

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Adopt construction methods for the nearby roads that would eliminate use of heavy equipment. Use of paver blocks that can be laid without heavy equipment should be considered.

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Provide catch fence for rock fall protection.”

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In their conclusions, the committee specifically suggested:

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“d. Vibration studies show that PPV caused due to use of road roller or rock breaker is within permissible limits provided the equipment is beyond 5m. from the rock body.”

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The Committee even suggested that M/s.Gaondevi Devasthan

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Trust may have unintentionally damaged the hill by constructing various structures without any permission of the authorities that had resulted in seepage through the joints, etc.

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The Committee also suggested the location plan for the areas which were required to be ear marked where no construction activity was to be permitted in the area.

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After consideration of the said report, the State Government

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issued the above mentioned notification dated 2.2.2008 specifying the plots indicated therein as a heritage site.

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Though the petitioner has made allegations about the illegal construction activities by Respondent Nos.9 and 10, at the hearing of the petition, it has been pointed out that the construction being put up by respondent Nos.9 and 10 is not on any of the lands which are covered by the aforesaid notification dated 2.2.2008. In the affidavit in reply dated 8.12.2011 filed by the Assistant Engineer (Building Proposal, K (West) Ward) of the Municipal Corporation for Greater Mumbai, it has been stated that the IODs were issued by the Municipal Corporation in modification of the previous IODs, after considering the heritage site as notified by the notification dated 2.2.2008. The particulars of the IODs given in respect of the concerned plots are mentioned in paragraph 5 of the said affidavit in reply.

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We do not propose to go into the details of the matter as the grievances in the petition is only about the alleged illegal construction by respondent Nos.9 and 10.

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Having gone through the record, while we do no find that

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any construction is being put up by Respondent Nos.9 and 10 on the lands covered by notification dated 2.2.2008, we enquired from the learned Counsel for Respondent Nos.9 and 10 whether any construction activity on the lands outside those covered by the notification dated 2.2.2008 is being carried on, in accordance with the recommendations made by the committee which were appointed in the aforesaid Public Interest Litigation. The learned Counsel for Respondent Nos.9 and 10 stated that the construction is being carried on by their respective clients in accordance with the recommendations made in the reports of the committee and that they are not using the hammering method for digging the lands but the vibratory rotary method is being employed for digging.

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Having heard the learned Counsel for the parties and having regard to the fact that the Public Interest Litigation No.904 of 2005 and Writ Petition No.123 of 2006, in which petitioner No.2 herein was one of the petitioners and respondent Nos.9 and 10 were also parties, were disposed off by this Court by orders dated October 11, 2006, this Court did not accept the prayers of the petitioners for not allowing the construction on the lands outside the areas covered by the notification dated 2.2.2008, we are not inclined to entertain this petition.

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Even so while disposing off this writ petition, we direct that the Municipal Corporation shall ensure that the parties carrying on construction on the lands outside the plots covered by the notification dated 2.2.2008 carry on construction in accordance with the recommendations made by the committee.

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As regards the submission of the learned Counsel for the petitioner that the authorities should employ Net Boosting and other methods for ensuring that there are no landslides in future at a distance of 5 meters from the Gillbert hill, the Municipal Corporation shall consider the said submission and take a decision thereon within three months from today.

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Public Interest Litigation is disposed off accordingly.

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CHIEF JUSTICE

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RANJIT MORE, J.

Shail Rane and 2 Ors. v. State of Maharashtra and 9 Ors.

Case brief

What is this about?

What did the court decide?

Shail Rane and 2 Ors. v. State of Maharashtra and 9 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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