Bombay High Court
Municipal Corporation Of Greater ... vs Gaurav V.Nevatia And 7 Ors on 2 July, 2019
Bench: Pradeep Nandrajog, N. M. Jamdar
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25-wp-1427-19.doc
pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1427 OF 2019
Municipal Corporation of Greater
Mumbai, through the Municipal
Commissioner .. Petitioner
Vs.
Mr. Gaurav V. Nevatia and ors. .. Respondents
Mr. R. S. Apte, Senior Advocate I/by J. J. Xavier for petitioner.
Mr. Abhishek Matkar I/by Kapil Shetye for respondent No.1.
Mr. P. A. Kabadi and Ms. Natasha Puri I/by DSK Legal for
respondent No.3.
Ms. Sharmila Deshmukh for respondent No.6.
Ms. Jyoti Chavan, AGP for respondent No.8.
CORAM: PRADEEP NANDRAJOG, CJ. &
N. M. JAMDAR, J.
JULY 02, 2019.
P.C.
1. It all commenced when two public spirited persons, impleaded as respondent No.1 and respondent No.2, in the instant writ petition filed an application before the Western Zone Bench of National Green Tribunal under Sections 14, 15, 18 and 20 of ::: Uploaded on - 04/07/2019 ::: Downloaded on - 04/07/2019 22:19:58 ::: 2/6 25-wp-1427-19.doc the National Green Tribunal Act, 2010. They alleged construction of buildings being carried out by Mr. Prakash Khubchandani and Crest Hotels Ltd. on land which was covered by the CRZ Notification, 2011. It was pleaded that the land on which construction was effected was in CRZ-II. It was pleaded that notwithstanding the statutory authorities being prima facie of the view that the constructions were illegal, no action was taken and thus direction was sought from the Tribunal to pass appropriate orders.
2. The application was registered as No. 54 of 2016 and was disposed of on 28 October 2016. The direction was that the applicants and the alleged offenders shall appear before the MCZMA, who after hearing the parties shall take necessary decision as per law.
3. MCZMA heard the parties and conveyed its decision under cover of the letter dated 3 December 2016. The final direction issued was in paragraph 10 which reads as under:
"10. On hearing the Applicant and Respondents and in the light of provisions of the CRZ Notification, 1991 and 2011, it was decided to direct the Municipal ::: Uploaded on - 04/07/2019 ::: Downloaded on - 04/07/2019 22:19:58 ::: 3/6 25-wp-1427-19.doc Corporation of Greater Mumbai to carry out the site inspection immediately and ensure that the present construction on land bearing C.S. No.1C/2 and C.S. No.996 of Worli Division, Annie Besant Road, Worli, Mumbai, is as per plans sanctioned by the MCGM prior to 4.1.2002. Construction, if any, carried out after 4.1.2002 without prior recommendation from MCZMA should be removed by the MCGM. District Collector office to ensure the action for removal of construction, as directed by Collector office to Deputy Collector, (Encroachment/Eviction, Colaba), so that Government foreshore land be kept open and un- built upon and maintain the said land as `Garden' permanently or as per the conditions stipulated in the Order of Government while leasing the land to M/s. Crest Hotel Ltd. The MCGM to constitute a team incorporating representative of Collector, Mumbai City to inspect the site of both building campus and foreshore land, to ascertain the statement given by the Respondents and applicants within a week of receipt of this Order. On the basis of report of committee / team, MCGM to undertake appropriate legal action under MRTP Act to remove the structures/ ::: Uploaded on - 04/07/2019 ::: Downloaded on - 04/07/2019 22:19:58 ::: 4/6 25-wp-1427-19.doc temporary construction, if any, which was not part of approved building plans / permissions in view of the Hon'ble NGT Order. District Collector to ensure the compliance of Order dated 26.10.2016."
4. Needless to state Municipal Corporation of Greater Mumbai was to comply with the directions in paragraph 10, reproduced above. .
5. The applicants before the Tribunal were compelled to file an application seeking execution of the order passed by the Tribunal on 28 October 2016; making a grievance that the responsibility cast upon MCZMA had been delegated to MCGM. Prayer made was that MCZMA should take the action for demolishing the structures if they were in violation of the law. In the said execution proceedings, the Tribunal passed an order on 5 July 2018, which has been challenged in the instant petition.
6. Noting the backdrop facts leading to filing of the execution application, the Tribunal noted that after its order, compliance whereof was sought by seeking execution, certain development had taken place which had been recorded by the Tribunal in its order dated 25 July 2017. The Tribunal noted that ::: Uploaded on - 04/07/2019 ::: Downloaded on - 04/07/2019 22:19:58 ::: 5/6 25-wp-1427-19.doc the Municipal Corporation of Greater Mumbai was required to effect demolition of the unauthorized constructions. The Tribunal directed MCGM to file a detail affidavit explaining its stand. Director was issued for the Municipal Commissioner of Municipal Corporation of Greater Mumbai to be present before the Tribunal on the next date.
7. Issuing notice in the Writ Petition on 9 July 2018, the Division Bench stayed operation of the order dated 5 July 2018 limited to the direction contained therein requiring personal presence of the Commissioner of MCGM. The matter was left at that without even issuing notice or fixing next date.
8. Having perused the impugned order, we find nothing stated or recorded therein which is decided any right of MCGM. The eyebrows raised in the order are on account of MCGM being lax in filing pleadings. The offensive part; of the Commissioner being directed to remain present before the Tribunal, has lost its sting on account of order dated 9 July 2018 passed in the writ petition.
9. There is nothing for us to adjudicate on account of the facts noted hereinabove.
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10. The petition is disposed of requiring MCGM to file the necessary affidavit, if not already filed before the Tribunal.
11. At this stage, we are informed that the MCGM has filed the necessary affidavit. Needless to state the direction for its Commissioner to appear before the Tribunal on the next date has been rendered defunct on account of the order dated 9 July 2018.
12. Petition is disposed of.
N. M. JAMDAR, J. CHIEF JUSTICE
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