Dismissed

Save Open Spaces and Ors. v. Municipal Corporation of Greater Mumbai and 10 Ors.

Bombay HC16 Feb 2015PIL/43/2014

Case brief

AI extract

What is this about?

The High Court dismissed a PIL challenging the covering of a nalla for a slum rehabilitation project. The court upheld the legality of the covering as necessary for hygiene, subject to safeguards for maintenance. It also permitted the developer to use transit camp land for 24 months.

What did the court decide?

PIL dismissed; direction to permit developer to occupy transit accommodation land for 24 months.

Save Open Spaces and Ors. Vs Municipal Corporation of… — Landlord and Tenant | Bombay HC (2015)

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1 of 10 PIL.43.2014

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

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PUBLIC INTEREST LITIGATION NO.43 OF 2014

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Save Open Space and another Petitioners versus Municipal Corporation of Greater Mumbai and others Respondents

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Ms.Gayatri Singh for Petitioners. Ms.T.H.Puranik for Respondent nos.1 and 2 MCGM. Mr.G.W.Mattos, AGP for Respondent-State. Mr.G.D.Utangale i/by Utangale & Co. for Respondent no.3. Mr.V.P.Sawant with Mr.Prabhakar Jadhav for Respondent no.4 MHADA.

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Mr.A.S.Khandeparkar i/by Khandeparkar & Associates for Respondent no.11.

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CORAM : MOHIT S. SHAH, C.J. AND B.P.COLABAWALLA, J. DATE : 16 February 2015

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PC :

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In this Public Interest Litigation, the petitioners have challenged the approval granted by the Municipal Corporation for Greater Mumbai (`MCGM') to the concurrent report dated 4 February 2012 (Exhibit-P) and order dated 24.2.2012 (ExhibitQ) concerning covering up of the Nalla where the slum rehabilitation project is being put up by respondent no.11

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M/s.Zodiac Developers Private Limited. The petitioners have also challenged the revalidation of the permission of covering of nalla dated 28 November 2014.

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In reply, the respondent Municipal Corporation for Greater Mumbai (`Municipal Corporation') as well as respondent no.11 developer have relied upon the order dated 18 August 2000 issued by Government of Maharashtra in Urban Development Department, which, while laying down instructions regarding FSI of the land covered by nalla, has provided as under :

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"(e) It is necessary that Nalla as and similar natural water bodies shall not be affected. Trenching may be carried out without affecting them and without obstructing water flow. The same could be covered by putting over the slab and could be used for parking etc."

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Subsequently by amendment dated 9 May 2010, the State Government made a modification which, inter alia, provided as under :

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"MODIFICATION

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Following new Regulation No.(i) is added to Regulation No.34 as follows :-

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'Provision for Proposed Nalla/Nalla Widening/Training and appurtenant service roads

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thereto shall be considered to be reservation" in the Development Plan and if the FSI of such land is not possible to be consumed on the remaining land as envisaged under Regulation 35, with prior approval of the Government, the owner shall be eligible for grant of TDR on handing over the land free of cost for such purpose as in Appendix-VII. However, as per the provision of regulation 15 of Appendix-VII, the owner shall be insisted to pay pro-rata charges for cost of construction of compound wall instead of retaining wall :

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Provided that when Proposed Nalla/Nalla Widening/ Training and appurtenant service road thereto is passing through the lands affected by any other reservation of the Development Plan, then TDR of the land can be granted only once either for D.P. reservation or deemed reservation mentioned above for nalla etc. Efforts shall be made to cover/to train the nalla suitably so that the said land can be used for its intended purpose as proposed in the Development Plan. However, if such covering of nalla is not feasible/viable then the nalla and appurtenant service road shall be developed as per requirement and the said other reservation of the Development Plan affecting the said land shall be deemed to be deleted/modified to that extent."

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(Emphasis supplied)

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It is also pointed out in the reply affidavit dated 15 November 2011 filed in Public Interest Litigation No.119 of 2012 by the Municipal Corporation that realignment and covering of nalla is approvable under Sections 222(2), 224(1) and 225(1) of Mumbai Municipal Corporation Act, 1888, which read as under :

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"(p) I say that these respondents have considered the aforesaid application as per MMC Act, 1888, DC Regulation 1991. I say that the realignment and the coverage of nalla is approvable as per sections 222(2), 224(1) and 225(1) of MMC act, 1888. The relevant sections of Mumbai Municipal Corporation Act, 1888 are as under :

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S.222(2) : The Commissioner may enter upon, and construct any new drain in the place of an existing drain, in any land wherein any municipal drain has been already lawfully constructed or repair or alter any municipal drain so constructed.

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S.224(1) : The Commissioner may enlarge, arch over or otherwise improve any Municipal drain, and may discontinue, close up or destroy any such drain which has, in his opinion, become useless or unnecessary.

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S.225(1) : The Municipal drains shall be so constructed, maintained and kept as to create the least practicable nuisance and shall be from time to time properly flushed, cleansed and emptied."

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The justification for covering up nalla is given in affidavit-in-reply dated 29 April 2014 filed on behalf of respondent no.11 developer, wherein it is stated as under :

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"I state that the state of the existing Nalla as it originally stood prior to the development was approximately 7 mt to 8 mt wide from CTS Nos.455, 1766 and 1756 and that this Respondent

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increased the width of the Nalla to 11 mt and 15 mt respectively. Nalla was flowing in a zig-zag manner and at many places there were obstructions and full of garbage and silt. I state that there was a Tabela adjoining the nalla and that cow dung and other waste was being dumped into the nalla. I state that the nalla was being used as a toilet. I state that the nalla was severely clogged and stagnant and that this was the reason for flooding. Because nalla was open and touching slum from both sides, people were using nalla as an outlet for sewer disposal and as a dumping ground to throw plastic waste and debris. I state that all these reasons were a grave health hazard and that this was the reason this respondent applied for the nalla to be trained and covered.

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I state that most open Nallas in the city are in this state and this was highlighted in the report of the Fact Finding committee on Mumbai Floods headed by Dr.Chitale which observed that "Encroachment on some part of S.W.D. system by the above development : Hutment colonies have been developed on the banks of nallas mainly for two reasons. Since it is a non-priority area it is less likely that huts will be demolished. Secondly, as there are no sanitary facilities, nallas act as flowing toilets taking away filth, garbage, plastic and excreta and thus stinking is avoided. As the income of slum dwellers grows, they tend to extend from all the sides, preferably on the nalla side, thus covering part of the nalla and restricting or reducing its waterway. Moreover, there is a huge amount of garbage and debris generated in the slums which is thrown into the nalla, without any discrimination, reducing the cross-section of the nalla ."

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(emphasis supplied)

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On the basis of the above statutory orders and pleadings, it is submitted on behalf of the Municipal Corporation and respondent no.11 developer that covering of nalla is in accordance with law and necessary for the purposes of hygiene and sanitation.

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Learned counsel for petitioners, however, would submit that covering of nalla would make desilting of the nalla difficult, if not impossible. Covering the nalla would also affect the free flow of storm water in the nalla.

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These issues have been addressed by the Municipal Corporation in the revalidation order dated 28 November 2014 and in their affidavit dated 15 December 2011 in Public Interest Litigation No.119 of 2012 between the same parties.

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In the revalidation order passed by the Municipal Corporation on 28 November 2014, the following conditions have been added :

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"Modified Condition No.(10) : Opening of 15 m x 3.0 m with MS frame and removable covers shall be provided at 30.00 M centre to centre distance along the proposed covered nalla along with similar openings on proposed silt pits. Further built in M.S.ladders shall be provided in the retaining walls at every opening for desilting purpose.

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Additional Condition No.(1) : That the building line shall be proposed leaving 3.00 M open space from the edge of nalla on the north side."

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The Municipal Corporation indicated in the said affidavit as under :

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"(l) I further say that to facilitate maintenance and desilting operations 3 numbers of huge silt pits with openable covers above and openaings of 1.2 Mt x 1.5 Mt. At 15 Mt. centre to centre with CI frames and removable covers are proposed within covering slab vide said revalidated remarks dated 16-11-2011. I say that further the difference of cost for desilting of covered nalla and open nalla has been recovered by these Respondents from the Developer i.e. Respondent no.11.

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(m) I further say that sofit level of the proposed covering is much above the existing ground level as well as high tide level due to which free flow of storm water in the nalla before the proposed covering will not be affected.

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(o) I further say that as per the D.C.Regulation 33(10) Appendix-IV, Clause 6.13, 3 meters wide open space has been insisted along the open nalla portion in S.R.Schemes. This mandatory open space from building line along the nalla is being used as passage for desilting of nalla and same is mentioned as desilting access in the nalla remarks issued for the SR Schemes. In this instant case, the covered portion of nalla is allowed to be used as desilting access vide remarks issued in the year 2007, as separate desilting access along the covered portion of the nalla is not necessary.

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The covering slab of the nalla is proposed to be constructed for "AA" class loading. As per condition no.25 laid in the revised major nalla remarks, the covered portion of nalla cannot be used for any habitable purpose."

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In view of the above safeguards stipulated by the Municipal Corporation and also the measures taken by the Municipal Corporation and the developer, in our view, there is no illegality in covering up of the nalla in question.

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Having heard learned counsel for the parties, we do not find any constitutional invalidity in the impugned orders issued by the State Government in the Urban Development Department. The urban planning authorities must have some play in the joints while dealing with the issues which have a direct bearing on public hygiene and sanitation, such as covering of nalla. In case covering of nalla creates any problems in future, it would always be open to the concerned Municipal/urban authorities to remove the covering. The undertaking that respondent no.11 developer will not put up any construction over the nalla covering, is itself a sufficient safeguard for dealing with any apprehended inconvenience.

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We accordingly record the undertaking being given by respondent no.11 developer that the slab covering the nalla would not be used for any construction above that area and that

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the same would be used only for parking. The undertaking is accepted.

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In view of the above, the PIL is required to be dismissed, subject to accepting the above undertaking of respondent no.11.

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At this stage learned counsel for respondent no.11 states that by order dated 8 May 2014 of this Court, the time to hand over the area of transit camp to the respondent authorities was extended by 24 months from the date of issuance of Letter of Intent. It is submitted that in view of pendency of this PIL, the respondent no.11 could not get all the plans sanctioned for the other rehabilitation buildings. It is submitted that out of five rehabilitation buildings to be constructed to house the slum dwellers, respondent no.11 has been able to complete only three buildings till today, fourth rehabilitation building is under construction and plans are to be submitted for the fifth rehabilitation building. In that view of the matter, around 150 slum dwellers residing in transit accommodation will have to be allowed to occupy the transit accommodation till completion of the rehabilitation buildings and therefore, respondent no.1 will be able to hand over the land covered by the transit camp to the respondent authorities only within 24 months from today.

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Having regard to the interests of 150 slum dwellers' families who are occupying the transit accommodation, and in view of the fact that respondent no.11 has to construct the rehabilitation buildings, we direct that the respondent authorities shall permit respondent no.11 to occupy the land covered by transit accommodation for the purpose of use of transit accommodation for a period of 24 months from today.

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We accordingly dismiss the Public Interest Litigation No.43 of 2014, subject to the direction in paragraph 16 above and recording & acceptance of the undertaking of respondent no.11 in paragraph 13 above.

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(CHIEF JUSTICE)

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(B.P.COLABAWALLA, J.)

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MST

Save Open Spaces and Ors. v. Municipal Corporation of Greater Mumbai and 10 Ors.

Case brief

What is this about?

What did the court decide?

Save Open Spaces and Ors. v. Municipal Corporation of Greater Mumbai and 10 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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