Holding

The Supreme Court held that the High Court’s remarks were unnecessary and ordered them to be expunged, thereby allowing the appeal.

Summary

The Municipal Corporation of Greater Mumbai (MCGM) appealed to the Supreme Court against disparaging remarks made by the Bombay High Court in a writ petition challenging the validity of Development Control Regulation No.58 (OCR 58) under the Maharashtra Regional and Town Planning Act, 1966. The petition sought to ensure open spaces and public housing in redeveloped mill lands, alleging non‑compliance with public‑amenities provisions, environmental impact assessment (EIA) requirements, and the surrender of land for open spaces. The High Court had also criticized MCGM for lacking a qualified town‑planning officer. The Supreme Court examined whether OCR 58 and related regulations were lawfully applied, whether the High Court’s observations were appropriate, and whether the remarks should be removed. It held that the High Court’s comments were unnecessary, directed their expungement, and allowed the appeal. Consequently, the appeal was allowed and the High Court’s remarks were ordered to be struck out.

Issues considered

Whether Development Control Regulation No.58 violates the statutory requirements of the Maharashtra Regional and Town Planning Act, 1966 regarding public amenities, open spaces, and public housing.
Whether the Municipal Corporation of Greater Mumbai failed to comply with the Environmental Impact Assessment (EIA) notification in the redevelopment of mill lands.
Whether the surrender of land for open spaces and public housing must be effected at the time of issuance of the commencement certificate.
Whether the absence of a qualified Town Planning Officer constitutes a violation of statutory qualifications.
Whether the High Court’s disparaging remarks against the appellant are appropriate and should be expunged.

Legislation cited

Maharashtra Regional and Town Planning Act, 1966

Subjects

Development Control RegulationPublic amenitiesEnvironmental Impact AssessmentOpen spacesPublic housingExpungement of judicial remarksMunicipal corporationTown planning officer qualifications

Judgment

A MUNICIPAL CORPORATION OF GREATER MUMBAI
!
v.
BOMBAY ENVIROl\MENTAL ACTION GROUP AND ORS.

MARCH 7, 2006

B [S.B. SINHA AND P.P. NAOLEKAR, JJ.]

Constitution of India. 1950-~Article 136-Expunction of remarks-
Disparaging remarks made by High Court against Appellant for its conduct-
Found unnecessary by this Court-Hence, directed to be expunged-Town
C Planning-Maharashtra Regional and Town Planning Act, 1966-Development
Control Regulations, 1991 [As amended in 2001 and clarified in 2003]-DCR
58 & 37.

A writ petition was filed before High Court questioning the validity
D of Development Control Regulation No.58 (OCR 58) framed by the State
of Maharashtra in terms of the Maharashtra Regional and Town Planning
Act, 1966. OCR 58 was made with a view to deal with the situation arising
out of closure and/or unviability c•fvarious cotton textile mills occasioned
. inter alia by reason of a strike resorted to by the workers thereof. It
provided for development/ re-d1~velopment of lands belonging to such
E cotton textile mills. The main thrust of the writ petitioners was to ensure
"open spaces" for the city and to provide space for "public housing".

In the said writ petition, thE High Court made disparaging remarks
against the Appellant for its conduct.

F Allowing the appeal and directing the said remarks to be expunged,
the Court

HELD: I. The High Court had commented that the Appellant had
admitted that the developers are not providing for any public amenities.
In this regard it was pointed out by the Appellant that in terms of
G Development Control Regulation (OCR) 27, only 5% of the total area was
to be designated as "Amenities" only when the plot area exceeds 2 hectares.
In view of the fact that the said OCR 27 was required to be read with
OCR 58, as the share of the owner was less than 2 hectares, the lands were
permitted to be developed as there was no requirement to provide
H 10~
~-
MUNL CORPN. OF GREATER MUMBAI v. BOMBAY ENVIRONMENTAL ACTIQN GROUP 1077
additional 5% public amenitiJs. It has not been shown that OCR 27 has A
-1 ~ -\ been violated. [1078-H; 1079-A-BI

2. The High Court, furthermore, held that Appellant took no steps
as regard compliance of Environmental Impact Assessment (EIA)
notification until they directed to do so during the final hearing of the writ
petition. But it is not in dispute that completion or occupation certificate B
had not been given and as such no prejudice had been caused to anybody.
It was submitted that the Appellant was under the belief that the mill
owners/ developers could produce the required permission of MOEF
before submitting completion certificate and obtaining occupation
certificate. (1079-B, CJ
c
3. It was furthermore opined by the High Court that Appellant had
not ensured that all the mill owners should provide free housing of 225
sq. ft. to the occupants. But as rightly submitted by the Appellant, the mill
owners in none of the cases had come forward for development I
redevelopment of residential built up area occupied by the chawls and, D
therefore, the question of allotting housing area of 225 sq. ft. to each
~ occupant never arose in terms of OCR 58 (7). In terms of OCR 58(7), the
eligible occupants are to be prnvided alternative accommodation of 225
sq. ft. and only then the developer would be able to utilize the vacant land
and, therefore, such questions would arise when the areas covered by the
chawls are to be developed and till then the occupant would remain in E
their tenements. [1079-0, F)

4: As regard the finding of the High Court that the Appellant has
not ensured surrendering of lands for "open spaces" and "public housing"
at the time of issue of commencement certificate, it was contended that
F
;;... surrendering of land is possible when the encumbered portions of the land
are cleared and relocated in such a manner as to facilitate availability of
vacant land for assigning them to housing as well as open spaces facilitating
proper access to such lands. It is not the requirement of law that such
physical surrender of land is obtained for such purposes at the time of
issuing initial commencement certificate itself. (1079-G; 1080-A) G
5. It was further pointed out that while considering the purported
J
concession said to have been made that the Appellant did not have even a
single officer with the qualification of Town Planning, the High Court
failed to take into consideration that the qualifications of the Town
Planning Officer are laid down in the statute and :all the concerned officers H
I
1078 SUPREME COURT RElPORTS [2006] 2 S.C.R.

A fulfil the statutory requirements. [1080-81
;
6. This Court agrees with tlte contentions raised by the Appellant.
Furthermore, having regard to the judgment and order proposed to be
delivered in the main matter (Civil Appeal arising out of S.L.P. (C) No.
23040 of 2005] such comments of thf: High Court were probably
B unnecessary and, therefore, direded to be expunged. (1080-C-D]

Bombay Dyeing and Mfg Co. Ltd. v. Bombay Environmental Action
Group, [C.A. No.1.519 of 2006 arising out of SLP(C) No. 23040 of 2005],
referred to.

C CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1548 of2006.

From the Final Judgment arid Order dated 17.10.2005 of the Bombay
High Court in PIL Writ Petition 'Jo. 482/2005.

Ravi M. Kadam. Adv. Gen., Harish N. Salve, Iqbal Chagla, M.L. Venna,
D Colin Gonsalves. Dinesh Dwiv.::di, Janak D\\arkadas, K.K. Singhvi, Uijainwala
S.H., Rakesh Katana, D.N. Mishra. Jay Savla, Gautam Patel, Parag Kabadi,
Lynn Periera, Sharan Jagtiani, Devansh Mohta, Ms. Reena Bagga, Ms.
Meenakshi Ogra, Ms. Meenakshi, Satya Mitra. M.N. Shroff, Ms. Anuradha
Singh, Ms. Apama Bhat. Ravindra K. Adsure, Sambhaji S. Shinde, V.N.
E Raghupathy, Anirudha P. Mayee, Mukesh Venna, Ashok B. Jain, D.T. Devale,
Manish Shanker, P'ankaj K. Singh, Ashish Mohan, Yash Pal Dhingra, N.M.
Ganguly, Vinay Navare, Naresh Kumar, C.S. Ashri, Prashant Bhushan, Vishal
Gupta, Rohit Kumar Singh, M;. Sumeet Sharma, Vikas Mehta, Mahesh
Agarwal, Manu Krishnan and EC. Agrawala for the appearing parties.

F The Judgment of the Comt was delivered by

S.B. SINHA, J. Leave granted.

This appeal has been prefem;d by the Municipal Corporation of Greater
Mumbai (MCGM) whereby the i;onduct of MCGM had been criticised under
G the caption "'Certain Disturbing Aspects".

The High Court commented that the Appellant had admitted that the
developers are not providing for any public amenities. The submission of Mr. ..__
K.K. Singhvi, learned senior coJnsel appearing on behalf of the Appellant is
that the information sought for had been supplied by the Appellant by way
H of affidavits affinned by the Chief Engineer (DP) on 14.9.2005 and 15.9.2005
" MUNI. CORPN. OF GREATER MUMBAI''· BOMBAY ENVIRONMENTAL ACTION GROUP [SINHA, J J

wherein it was pointed out that in terms of Development Control Regulation
1079
A
..... ~ (OCR) 27, only 5% of the total area was to be designated as "Amenities"
only when the plot area exceeds 2 hectares. Jn view of the fact that the said
OCR 27 was required to be read with OCR 58, as the share of the owner was
less than 2 hectares, the lands were permitted to be developed as there was
no requirement to provide additional 5% public amenities. It has not been
shown that OCR 27 has been violated. The High Court, furthermore, held B
that MCGM took no steps as regard compliance of EIA notification until they
directed to do so during the final hearing of the writ petition. It is not in
~
dispute that completion or occupation certificate had not been given and as
such no prejudice had been caused to anybody.

Mr. Singhvi submitted that MCGM was under the belief that the mill
c
owners/ developers could produce the required permission of MOEF before
submitting completion certificate and obtaining occupation certificate.

Indisputably, the requirements of EIA notification were required to be
complied with. We have deliberated upon this question in Civil Appeal arising D
out of S.L.P. (C) No. 23040 of 2005 Bombay Dyeing & Mfg. Co. ltd v.
-..\ Bombay Environmental Action Group., It was furthermore opined by the
High Court that MCGM had not ensured that all the mill owners should
provide free housing of 225 sq. ft. to the occupants.

It was rightly submitted by Mr. Singhvi that the mill owners in none E
of the cases had come forward for development/ redevelopment of residential
built up area occupied by the chawls and, therefore, the question of allotting
housing area of 225 sq. ft. to each occupant never arose in terms of DCR
58(7). In terms of OCR 58(7), the eligible occupants are to be provided
alternative accommodation of 225 sq. ft. and only then the developer would
F
be able to utilise the vacant land and, therefore, such questions wou Id arise
> when the areas covered by the chawls are to be developed and till then the
occupant would remain in their tenements.

As regard the finding of the High Court that the Appellant has not
ensured surrendering of lands for "open spaces" and "public housing" at the G
time of issue of commencement certificate, it was contended that surrendering
of land is possible when the encumbered portions of the land are cleared and
~,) relocated in such a manner as to facilitate availability of vacant land for
assigning them to housing as well as open spaces facilitating proper access
to such lands.
H
1080 SUPREME COURT REPORTS [2006) 2 S.C.R,.

A It is not the requirement of law that such physical surrender of land is
obtained for such purposes at the time of issuing initial commencement ;
certificate itself.

Mr. Singhvi has further pointed out that while considering the purported
concession said to have been made by him that the MCGM did not have even
B a single officer with the qualification of Town Planning, the High Court
failed to take into consideration that the qualifications of the Town Planning
Officer are laid down in the sta:ute and all the concerned officers fulfil the
statutory requirements.

We agree with the contentions raised by Mr. Singhvi. Furthermore,
C having regard to the judgment ar.d order proposed to be delivered in the main
matter [Civil Appeal arising out of S.L.P. (C) No. 23040 of 2005], we are of
the opinion that such comments of the High Court were probably unnecessary
and, therefore, directed to be expunged. The appeal is allowed.

D B.B.B. Appeal allowed.