Disposed

Save Open Spaces and Anr. v. Municipal Corporation of Greater Mumbai and Ors.

Bombay HC17 Apr 2013PIL/129/2012

Case brief

AI extract

What is this about?

This PIL sought clarification regarding land area measurements and a plan selection for a development project involving a slum rehabilitation developer. The Court accepted a Committee's recommendation for Option III, directing that revised building plans be evaluated under regulations as of 6 December 2010. The Court directed the surrender of additional land for a Recreation Ground without FSI, wh

What did the court decide?

Issued to consider revised building plans based on regulations of 6 December 2010; ordered surrender of 212.90 sq. meters for RG without compensation or FSI; disposed of PIL with liberty to file fresh

Save Open Spaces and Anr. Vs Municipal Corporation of… — Land Acquisition | Bombay HC (2013)

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

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PUBLIC INTEREST LITIGATION NO.129 OF 2012

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Save Open Spaces & Anr. Versus

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...Petitioners

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Municipal Corporation of Greater Mumbai & Ors...Respondents

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Ms. Gayatri Singh with Mr. Kranti L.C., for petitioners. Mr. Y.S. Jahagirdar, Senior Advocate with Ms. Sharmila Modle for B.M.C. Mr. Girish Uttangale i/b. M/s.Uttangale & Co., for respondent No.3. Mr. J.S. Saluja, AGP for respondent State.

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Mr. Ashutosh Khandeparkar i/b. Khandeparkar Associates for respondent No.11.

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CORAM : MOHIT S. SHAH, C.J. & M.S. SANKLECHA, J. DATE : 17 April 2013

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P .C.

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In para 3 on page 3 of our order dated 8 February 2013 the chart indicates D.P. Road as 77.3 sq. mtrs. in CTS No.464 and 73.3 sq. mtrs. for D.P. Road in the alternative area offered by the developer. In para 3 of the said order, the area of D.P. Road is shown as 73.3 sq. mtrs.

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Similarly, in our order dated 20 February 2013 in para 2 the D.P. Road area is shown as 77.30 sq. mtrs.

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Mr.Khandeparkar, learned counsel for the respondent No.11 Developer points out from other documents, and the learned counsel for the parties do not dispute, that D.P. Road area of CTS No.464 is 73.30 sq. meters. Accordingly, the figure 77.30 sq. meters against D.P. Road in CTS No.464 shall be corrected to 73.30 sq. meters in the orders dated 8 February 2013 and 20 February 2013.

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In compliance of our direction dated 20 March 2013, the Committee headed by the Collector, Mumbai Suburban, has submitted report dated 25 March 2013. The report was submitted on 9 April 2013. The Committee considered Option 3 as well as Option 3A submitted by respondent No.11-developer and also considered the remarks submitted by the Municipal Corporation and SRA. After considering the remarks, the committee has made the following recommendations:-

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“8. Considering the above fact, it is proposed by the committee to consider the Option Plan III submitted by Respondent No.11 on 28/2/2013 with minor changes suggested by Committee. The detail plan about this is prepared and submitted along with this. The Collector will accept the proposal with following conditions.

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i) Existing structure of transit camp and toilet blocks thereon shall be demolished by the respondent No.11 before handing over in question land.

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ii) The land bearing CTS No.455 pt. Of village Vileparle offered by the Respondent No.11 is owned by the MHADA. Therefore the Respondent No.11 should first obtain the necessary NOC for transfer the said land to Collector-M.S.D.

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iii) Entire land which is to be transferred to Govt. of Maharashtra should be vacant and free of encumbrances.

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iv) The Respondent No.11 should hand over the possession of land in question in Option III with modification's as suggested by Committee within six months.

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v) As per Municipal Corporation of Greater Mumbai's remarks, respondent No.11 would also be required to offer additional area for road from CTS No.455 for maintenance of Nallah, if any.

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A plan showing the above details are submitted to Hon'ble High Court for ready reference.”

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Learned counsel for respondent No.11-developer has submitted that the Court may accept Option IIIA, because if Option III is accepted respondent No.11-developer will have to give up one free sale building of 700 sq. meters i.e. 7,534 sq. ft. It is submitted that respondent developer was required to give only 1787 sq. meters of RG in Plot No.455, but on account of the orders passed by this Court respondent No.11developer is required to give RG of 2000 sq. meters. It is necessary to note that the correct measured area is shown as 2546.50 in the following chart in para 8 of the order dated 8 February 2013 recording the submission of Mr.Saluja, learned AGP appearing for the Collector:-

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		In square meters
1	Recreation Ground	1787.10
2	D.P. Road	73.30
3	Housingfor dishoused	579.30
4	B.S.E.S.	106.80

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Learned counsel for respondent No.11-developer submits that the developer was earlier required to give only 1787.10 sq. ft. of RG, but by the orders dated 8 February 2013 and 20 February 2013, the Court has directed respondent No.11-developer to give RG of 2000 sq. meters. It is submitted that the above direction for giving additional RG of 212.90 sq. meters will cause following prejudice to the developer:-

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(i) respondent No.11-developer will have to give additional 212.90 sq. meters of RG from his own land without getting any compensation or FSI against the said 212.90 sq. meters of land.

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(ii) respondent No.11-developer is also going to lose more than 7500 sq. ft. of built up area in the free sale component without any

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reduction in the liability to construct 17,000 sq. meters of built up area for slum rehabilitation tenements.

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(iii) respondent No.11-developer had submitted plans for construction on the land in question for larger built up area (including for free sale building with built up area of 7,534 sq. ft.) for which IOD was issued in favour of the developer on 6 December 2010, a copy whereof is placed on record. Thereafter there is change in the Regulations with effect from 6 January 2012.

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It is, therefore, submitted that respondent No.11-developer will now have to submit revised plans on account of respondent No.11-developer being required to provide 2000 sq. meters of RG in compliance of the directions of this Court. Hence, SRA may be directed to consider the revised plans on the basis of the Regulations applicable on 6 December 2010.

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Learned counsel for the petitioner opposes the above submissions and submits that no concession should be granted in favour of the developer.

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Learned counsel for the Municipal Corporation also submits that the Corporation may not be treated to have agreed to any RG being given on an existing RG.

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Having heard the learned counsel for the parties, we are inclined to accept the report of the Committee headed by the Collector which has suggested acceptance of Option Plan III submitted by the developer on 20 February 2013 with minor changes suggested by the Committee but since the developer is required to give up the sale building with built up area of about 700 sq. mtrs. = 7,534 sq. mtrs. as against about

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17,000 sq. meters of rehabilitation area being provided by the developer free of cost and the developer has agreed not to take any FSI or compensation for 212.90 sq. meters of its land which is to be added to RG and for which the developer would have otherwise got FSI or compensation, we are inclined to accept the request made by Mr.Khandeparkar.

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We accordingly direct that the developer's revised building plans necessitated by the exercise undertaken in this PIL, shall be considered on the basis of the Regulations applicable on 6 December 2010, on which date the IOD was issued by SRA.

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As regards 212.90 sq. meters of land being surrendered by respondent No.11 developer, we make it clear that it is only to make RG area in CTS No.455, 2000 sq. meters as a large and compact RG area and for imposing penalty on respondent No.11 that we have directed respondent No.11 to surrender 212.90 sq. meters of land without compensation or FSI. Hence there is no question of entertaining the objection of the Municipal Corporation that there should not be an RG over an existing RG. The order is passed in the peculiar facts of this case already highlighted in this order including the prejudices that respondent No.11 is going to suffer by acceptance of Option III as against Option IIIA offered by respondent No.11.

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As regards the petitioner's grievance about covering and training the nallah we do not propose to go into that controversy in this PIL.

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The PIL is accordingly disposed of with liberty to the petitioner to file fresh proceedings in respect of the dispute which the petitioner has raised about covering or training the nallah. All contentions in relation to prayer (e) are also kept open.

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CHIEF JUSTICE

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M.S. SANKLECHA, J.

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Save Open Spaces and Anr. v. Municipal Corporation of Greater Mumbai and Ors.

Case brief

What is this about?

What did the court decide?

Save Open Spaces and Anr. v. Municipal Corporation of Greater Mumbai and 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

Case details

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