In this PIL, the court considered allegations of illegal diversion and construction on the Mogra Nulla. Relying on affidavits showing valid permissions for re-alignment and covering of the stream, the court held that relief cannot be granted at this stage.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO.133 OF 2009
Rajpal Social Welfare Trust
vs.
The Commissioner, Municipal
Corporation of Greater Bombay
and others
...Petitioner
...Respondents
Mr.E.A.Sasi for the petitioner
Mr.A.Y.Sakhare, Senior Counsel a/w Ms K.R.Punjabi
for the respondent Nos.1 and 3
Mr.J.G.Aradwad (Reddy) for respondent No.2
CORAM : A.S.OKA, &
A.S.GADKARI, JJ.
DATE : NOVEMBER 5,2014
P.C.:
1Heard the learned counsel for the petitioner,
learned counsel for the respondent Nos.1 and 3 and
the learned counsel for the respondent No.2. The
grievance made in this PIL is regarding construction
of a seven storeyed building on the bank of Mogra
Nulla (a stream carrying waste water) more
particularly described in paragraph 2 of the
petition.
2The allegation is that Nulla has been illegally
diverted by the builder and thereafter, construction
of the building was commenced after filling in a
portion of the Nulla.
3There is aN affidavit-in-reply filed by Shri
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Jayesh C. Dusane, the Sub Divisional Engineer
working with the Slum Rehabilitation Authority. The
affidavit records that a Letter of Intent was
granted by the said Authority on 27th October 2004.
The affidavit further records that the concerned
department of the Mumbai Municipal Corporation
issued a permission for covering of the Nulla and
for re-alignment of the Nulla having width of 12
meters. In the letter dated 7th November 2008, it is
stated that the Authority permitted a building to be
constructed at the distance of 4.50 meters from the
edge of Nulla as per the permission for re-alignment
of the Nulla. Part Occupation Certificate for the
building has been granted on 7th September 2007. It
is stated that the plan for construction of Regional
Transport Office building, on the other side of the
Nulla was approved in the year 2009 which permits
construction of the Regional Transport Office after
maintaining distance of minimum 7.00 meters from the
edge of Nulla wall.
4It is stated that the building in question as
well as RTO office have been constructed by the
developer by maintaining the required distance from
the edge of the Nulla. Paragraph 11 of the
affidavit reads thus:
“11I say that and I deny all the baseless
allegations and contentions raised by the
petitioner in the present PIL. I say that
the Nala is constructed by the developer as
per the permission granted by the MCGM's SWD
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Department and as per various plans
sanctioned by the Slum Rehabilitation
Authority from time to time. I say that
there is no likelihood of 26/7 like flood
situation as is sought to be made out by the
present petitioner in the PIL and even there
is no likelihood of any natural calamity such
as flood, famine etc., as is alleged by the
Petitioner in the present PIL. I say that by
following the due process of law, the Slum
Rehabilitation Authority has sanctioned the
Slum Rehabilitation Scheme on the suit
property and there is no any illegality or
irregularity as is contended and alleged by
the Petitioner in sanctioning the Slum
Rehabilitation Scheme on the suit property.”
5Thus, the affidavit records that the permission
which was granted on 7th November 2008 for covering
of Nulla which also permits re-alignment of the
Nulla has been acted upon.
6Therefore, the relief prayed for in this PIL
cannot be granted at this stage. However, any
action is taken by any of the respondents which has
the effect of adversely affecting the Nulla which is
re-aligned in terms of the permission dated 7th
November 2008, it will be open for the petitioner to
make appropriate representation before the
appropriate Authority. We are sure that the
concerned Authority will consider the said
representation in accordance with law.
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7 Subject to what is observed above, petition is rejected.(A.S.GADKARI,J.) (A.S.OKA,J.)3 issues framed by the court
Whether to grant relief regarding the construction of a building on the bank of a diverted waste water stream known as Mogra Nulla.
Whether the alleged diversion and filling of the Nulla constitute illegality given existing permissions for covering and re-alignment.
Whether future adverse action affecting the re-aligned Nulla is an adequate contingency for the petitioner.
Rajpal Social Welfare Trust
Commissioner, Municipal Corporation of Greater Bombay
A.S. OKA
A.S. Gadkari
As recorded by the court registry
Litigation brought on behalf of the public interest rather than a personal grievance, relaxing the usual rule of locus standi.
Judgements on the same questions, provisions and authorities, from every court