Amit R. Goenka vs Pandurang Patil

Delay condoned.

Leave granted.

These appeals are filed against the order(s) of the Bombay High Court refusing permission to the appellants to make a construction on their own property in spite of their having a sanctioned plan. An application in this behalf was made in a litigation where the High Court had restrained the citizens, except those belonging to certain categories to carry on construction in the following terms :

"(a) The development permissions/ IOD shall not be granted by either the said Municipal Corporation or the State Government on the Applications/proposals submitted from 1st March 2016 for construction of new buildings for residential or commercial use including Malls, Hotels and Restaurants. Such applications shall be processed, but the IOD and/or commencement certificate shall not be issued. It is obvious that in view of this restraint, no one can take advantage of deeming provisions in the DCR and MRTP Act. Needless to state that this condition will not apply to all the redevelopment projects covered by the clauses (5),(6),(7),(8),(9) and (10) of the DCR No. 33. This condition will not apply to the buildings proposed to be constructed for the hospitals or educational institutions. The condition shall not apply for consideration of the proposals for repairs/ reconstruction of the existing buildings which do not involve use of any additional FSI in addition to the FST already consumed. These restrictions shall apply only to the Applications/proposals submitted from tomorrow i.e. 1st March 2016."

It is a common ground that the main reason that weighed with the Court for passing such a drastic order is the alarming lack of waste disposal facilities with the Municipal Corporation of Greater Mumbai. In this background, the High Court was pleased to reject the permission sought by the appellants.

We have heard learned counsels for all the parties, including, the learned Attorney General for India. The learned senior counsel for the appellants has submitted that the appellants shall while constructing according to the sanctioned plan, not remove any debris, garbage or any other such material from the property in question situated at CTS No. 650, village Juhu, Plot No. 43, Nutan Laxmi CHS Ltd. at N.S. Road No. 9, J.V.P.D Scheme, Ville Parle (West), Mumbai. The learned senior counsel for the appellants has further stated before us that the appellants will not remove any garbage from the site in question at any point of time, until the orders of the Bombay High Court are in force and thereafter shall do so only in accordance with the rules for such disposal as may be enforced at that time.

We are inclined to accept the above submission of the appellants.

Shri R.P. Bhatt, learned senior counsel appearing for the Municipal Corporation of Greater Mumbai, who sought time to file reply and take instructions has accepted the fact that it will meet the purposes of the order of the High Court if the appellants do not dispose of any waste material, including, debris and household garbage outside the site in question.

Having given our anxious consideration to the matter and the undoubted right of the appellants to carry on construction on their own property in accordance with the sanctioned plan, in the facts and circumstances of this case, we permit the appellants to carry on construction at the site, as mentioned above, in accordance with the approved building plan. The appellants shall keep their property open for inspection by the officials of the Municipal Corporation of Greater Mumbai at all times. The Municipal Corporation shall forfeit the appellants'' right to carry on construction if they violate the conditions whereby they are restrained from removing any garbage, dabris etc. from the plot in question.

The civil appeals are disposed of in above terms.