pvr pil6-16.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO. 6 OF 2016
Nitesh Mohanlal Doshi )...Petitioner
Versus
1.The State Of Maharashtra through Ministry )
Of Urban Development Dept. )
)
2.The Municipal Commissioner, )
Mumbai Municipal Corporation )
3.The Executive Engineer (B.P.) City-II )
)
4. M/s.Capricon Realty Ltd. )
5. The Chief Office, Maharashtra Housing and )
Area Development Authority. )...Respondents
---
Mr.Rakesh Agrawal, for the Petitioner.
Mr.H.S.Venegaonkar, Addl.Government Pleader for the Respondent-
State.
Mr.A.Y.Sakhare, Senior Advocate with Mr.Joel Carlos and
Mrs.Shobha Ajithkumar for the Respondent-Corporation.
Dr.Veerendra Tulzapurkar, Senior Advocate with Dr.Milind
Sathe,Senior Advocate, with Dr.Birendra Saraf, Mr.Aditya
Khandeparkar, Mrs.Sukhada Wagle-Kamat, Mr.S.Bhogle i/b.
M/s.Hariani & Co., for Respondent No.4.
----
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CORAM : DR. MANJULA CHELLUR, C. J., &
G.S.KULKARNI, J.
RESERVED ON: May 5, 2017 PRONOUNCED ON: August 21, 2017
---
JUDGMENT: (Per G.S.Kulkarni,J.)
1. Rule returnable forthwith. Respondents waive service. By consent of the parties, heard finally.
2. This petition in public interest espouses a cause surrounding interpretation of Regulation No.33(1) of the Development Control Regulations for the Municipal Corporation of Greater Mumbai (for short "DCR") which provides for an additional 'floor space index' (for short 'FSI') in lieu of road set back area.
3. Petitioner claims to be a social activist and a environmentalist, having worked on such issues since last nine years and more. The Petitioner has stated that he is a founder member of AIIMS - an organization involved with the welfare of 2 of 27 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 02:16:08 ::: pvr pil6-16.doc citizens. By this petition the petitioner states to espouse the rights of poor mill workers and their family members, who are deprived of a shelter despite the beneficial provisions of Regulation 58 of the DCR. The petitioner prays for the following reliefs:-
"(a) That this Hon'ble Court may pleased to call for the record of Respondent No.2 and 3 authority and after verifying the legality and proprietary of the allegations made by the Petitioner, this Hon'ble Court may pleased to issue writ of certiorari or writ in the nature of certiorari quashing and setting aside permissions granted by Respondent No.2 and 3 in favour of Respondent No.4 and this Hon'ble Court be pleased to declare that the Respondent No.4 is liable to hand over 1673.10 sq.mtrs area to Respondent No.2 as MCGM's share and 1368.90 sq.mtrs area to Respondent No.5 as MHADA's share and this Hon'ble Court be pleased to direct Respondent No.2 and 3 to recover said MCGM's share and MHADA's share;
(b) That this Hon'ble Court may pleased to call for record of Respondent No.2 and 3 authority and after verifying the legality and proprietary of the allegations made by the Petitioner, this Hon'ble Court may pleased to issue writ of certiorari or writ in the nature of certiorari quashing and setting aside permissions granted by Respondent No.2 and 3 in favour of Respondent No.4 and this Hon'ble Court be pleased to direct Respondent No.2 3 of 27 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 02:16:08 ::: pvr pil6-16.doc and 3 to deduct area of 3543.13 sq.mtrs area from the area of 81,101.22 sq.mtrs sanctioned for construction on the said plot of Respondent No.4;
(c) In alternate to prayer clause (a) and (b) above, this Hon'ble Court be pleased to direct Respondent no.2 to decide complaint/notice dated 28th June,2015 sent by the Petitioner by treating present petition as representation of Petitioner within period of 45 days or within such period as this Hon'ble Court deem fit and proper after following principles of natural justice;
(d) pending hearing and final disposal of present petition, this Hon'ble Court be pleased to pass order of injunction restraining Respondent No.4 from carrying any further construction activity on suit plot;"
Learned Counsel for the petitioner has submitted that prayer (a) is covered by a decision of the Division Bench of this Court in the case of Girni Kamgar Karmchari Niwara & Kalyankari Sangh V/s. State of Maharashtra and Ors. in Public Interest Litigation No. 6 of 2008 dated 09/03/2011 and thus the petitioner does not press the said prayer and would pursue the petition on the other prayers.
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4. The grievance of the petitioner in this PIL is against respondent No.4 who is undertaking a development, on a textile mill land, being plot Nos.CTS No.1903 (pt), 1904 (pt), 1905, 1/1905 and 2/1905, falling in Byculla division situated at Dr. A.L.Nair Marg, Maulana Azad Road, Jacob Circle, Mumbai (for short 'the said land'). According to the petitioner, development on this land is required to be undertaken by respondent No.4 as per the provisions of Regulation 58 of the DCR.
5. The Petitioner contends that the land originally belonged to one Hindustan Spinning and Weaving Mills Ltd.- a sick textile unit. The area of the land in question was 68,274.86 sq.mtrs. A sub plot admeasuring 6754.40 sq.mtrs. was carved out from the larger land, for construction undertaken by one Kalpataru Heights. On the balance plot of land admeasuring 61,520.46 sq.mtrs., (68274.86 - 6754.40 Sq.mtrs), construction of an area of 75,079.11 sq.mtrs. has been undertaken. The petitioner says that, considering this measurement of the construction, the plot area is 56,450.46 sq.mtrs. applying the permissible FSI of 1.33. According to the respondents, the open 5 of 27 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 02:16:08 ::: pvr pil6-16.doc plot area as contemplated under Regulation 58(1)(b) of the DCR is 61,520.46 sq.mtrs. minus 56,450.46 sq.mtrs. = 5070 sq.mtrs.
6. On the above backdrop the only issue being urged by the petitioner is stated to be violation of FSI norms by the Respondents, as it is the petitioner's case that the respondents have completely mis-interpreted and misapplied DCR No.33(1) and more particularly paragraph three of the said DCR, in calculating the benefit of FSI being conferred on Respondent No.4, for surrender of the road set back area. According to the petitioner, the Respondent No.2 has breached DCR No.33(1) read with regulation 58(1) in conferring FSI benefit on Respondent No.4 amounting to a gross illegality. The petitioner says that methodology adopted by respondent No.4, which is stated to be in connivance with the Municipal Corporation and the MHADA, has reduced the 'public benefit', namely of a substantial area, which would have entailed to the benefit of the MCGM and MHADA under Regulation 58(1). It is stated that there is reduction of area, of not only the recreation ground but also the MHADA's share, utilizable for public housing for mill workers and their 6 of 27 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 02:16:08 ::: pvr pil6-16.doc families, who are struggling for a home and who are not aware of their rights and legitimate legal entitlements.
7. It would be relevant to extract the contention of the petitioner on the issue of violation of FSI norms as contained in paragraph 15(a), (b) and (c) of the petition, which reads thus:-
"15. The Petitioner states that 2nd issue in the present petition is pertaining to the violation of FSI norms as follows:-
(a) The Petitioner states that from contents of forgoing paragraph, the plot area available for development is 56,450.46 (non-open plot) plus 2028 (owners share of open plot)=58,478.46 sq.mtrs. From said area the road set back area admeasuring 3062 is to be deducted. Thus, net plot area for the computation of FSI shall be 58,478.46 (-) 3062 = 55416.46 sq.mtrs.
(b) Thus, permissible built up area as per FSI of 1.33 shall be as follows:
Area in FSI Area in sq.mtrs.
sq.mtrs.
Plot area available 55,416.46 1.33 73,703.89
for development
including Owners
share
MCGM share 1673.10 1.33 2225.22
(33%) for
consuming FSI on
site
40% of road set 1224.8 1.33 1628.98
back area (3062
sq.mtrs) for
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loading on site
Total 77558.09
(c) The Petitioner states that as per Proforma-A to the sanctioned
plan, the FSI granted in 81,101.22 sq.mtrs. Hence, built up area of 81,101.22 (-) 77,558.09 = 3543.13 sq.mtrs. is granted contrary to provisions of Development Control Rules. The Petitioner states that said additional area of 3543.13 sq.mtrs is on account of wrong computation road set back area and MCGM share."
8. The petitioner thus contends that an additional area of 3543.13 sq.mtrs. is granted to Respondent No.4 on account of wrong computation of road set back area. The petitioner contends that as per Proforma A to the sanctioned plan, FSI granted is 81,101.22 sq.meters. Thus, according to the petitioner, a built up area of 81,101.22 after subtracting 77,558.09 which is the total area available for development and includes the share of 33% of MCGM and 30% road set back area (3062 sq.mtrs.). Thus, according to the petitioner, an area of 3543.13 sq.mtrs is granted to respondent No.4 contrary to the provisions of DCR which needs to be deducted from the sanctioned built up 8 of 27 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 02:16:08 ::: pvr pil6-16.doc permission. Learned Counsel for the petitioner in supporting this contention, that a benefit is granted to respondent No.4, contrary to the provisions of Regulation 33(1), has drawn our attention to Regulation 33(1) as it stood prior and post amendment dated 19.4.2001.
9. In pursuance of the orders passed by the Court, on behalf of the Municipal Corporation, counter affidavits dated 21 October 2016 and 8 February 2017 respectively have been filed. Also on behalf of the State Government counter affidavit of the Deputy Director of Town Planning dated 1 February 2017 is placed on record.
10. In the first affidavit filed on behalf of the Municipal Corporation, referring to DCR 33(1), it is averred that net area of the plot in question after deducting the set back is 58.254.98 sq.mtrs. It is stated in paragraph 3 as under:-
"In the aforesaid case the net area of the plot after deducting setback is 58254.98 sq.mtr. Thus maximum 40% of 58254.98 sq.mtr = 23301.99 sq.mtr. setback FSI can be loaded on plot under reference. In this case only 3265.48 X 1.33= 9 of 27 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 02:16:08 ::: pvr pil6-16.doc 4343.09 sq.mtr. is utilized on plot under reference which is within the permissible limits as per DCR 33(1)." (emphasis supplied)
11. What is clear from the above paragraph of the Municipal Corporation's affidavit is the Municipal Corporation's understanding of paragraph 3 of Regulation 33(1), that it permits a maximum of 40% of the FSI 'of the balance plot area' remaining after deducting the set back area, and accordingly 23301.99 sq.mtrs. of FSI could be loaded and in fact 4343.09 is loaded.
12. In the second affidavit dated 8 February 2017 as filed on behalf of the Municipal Corporation, the deponent recites the procedure adopted by the Municipal Corporation in undertaking amendment of the DCR.
13. In the counter affidavit as filed on behalf of the State Government which is of the Deputy Director of Town Planning, it inter-alia states that the Municipal Corporation vide letter dated 23 March 2010 had submitted a proposal for modification of 10 of 27 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 02:16:08 ::: pvr pil6-16.doc Regulation 33(1) of the DCR to be sanctioned as per Section 37(1) of the MRTP Act,1966. It is stated that the Government in the Urban Development Department, sanctioned the said modification under Section 37(2) of the MRTP Act vide Notification dated 17 June 2010. 'Exhibit B' of the Affidavit is the notification dated 17 June 2010 which incorporates the said amendment in the Schedule as referred in the notification.
14. On behalf of Respondent No.4, counter affidavit is filed opposing this petition. Respondent No.4 contends that the present petition is not bonafide. It is then contended that the petition is filed with a delay of almost nine years, inasmuch as in terms of Regulation 58 of the DCR, area calculation for surrender of land was already undertaken, and the portion of the land component which would fall to the share of respondent nos.2 and 5 (Municipal Corporation and MHADA) was duly handed over to these respondents in December 2007 and the remaining land is interalia being developed by respondent No.4. It is stated that the construction of residential building No.1 (Tower A, B, C) is completed and a building completion certificate is obtained on 30 11 of 27 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 02:16:08 ::: pvr pil6-16.doc November 2013. The apartment purchasers are occupying the apartments, as also the construction of other amenities, like club house was completed on 21 July 2014. Respondent No.4 would further state that the issues as raised in this petition have been conclusively decided in an earlier litigation namely PIL No.6 of 2008 filed by one Girni Kamgar Karmachari Niwara Kalyankari Sangh (for short 'Girni Kamgar Sangh'). It is submitted that Girni Kamgar Sangh had initially approached the Monitoring Committee constituted by respondent No.1 under DCR 58, raising an objection that the lands allotted to respondent Nos.2 and 5 were less than what were required to be actually allotted. It is stated that as the Monitoring Committee did not accept the said contention, the Girni Kamgar Sangh had filed PIL No.6 of 2008 which came to be dismissed by a Division Bench of this Court by judgment and order dated 9 March 2011 referring to the decision of the Supreme Court in the Bombay Dyeing & Mfg. Co. Ltd. 1. Respondent No.4, thus seeks dismissal of this petition
15. We have heard learned Counsel for the parties, with 1 (2006)3 SCC 434 12 of 27 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 02:16:08 ::: pvr pil6-16.doc their assistance, we have also perused the documents as placed on record as also the relevant provisions of the DCR.
16. Being purely a legal issue, the learned Counsel for the parties have mainly advanced their respective submissions on the interpretation of regulation 33(1). Learned counsel for the Municipal Corporation submits that paragraph three of regulation 33(1) is correctly understood by the Municipal Corporation as stated in the counter affidavit and noted by us above to mean that it permits a maximum of 40% of the FSI 'of the balance plot area' remaining after deducting the set back area. Dr.Tulzapurkar, learned Senior Counsel for respondent no.4 also supports the contention as urged on behalf of the Municipal Corporation. In contesting the petition, the respondents have also placed reliance on their respective pleas as made in the counter affidavits.
17. On the above backdrop, the question which falls for our consideration, is as to what would be the extent of additional FSI as permissible under DCR 33(1) which would be available for development, on the land when there is a surrender of an area for 13 of 27 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 02:16:08 ::: pvr pil6-16.doc road widening/ construction of a new road.
18. Before we examine the dispute, we may observe that the objection as raised on behalf of Respondent No.4 to the maintainability of the petition cannot be accepted, for the reason that Respondent No.4 is not in a position to demonstrate that the issue as regards interpretation of Regulation 33(1) of DCR as urged by the petitioner has been decided in the earlier round of litigation as initiated by Girni Kamgar Snagh. The issue which falls for our consideration in this petition is principally on the interpretation of Regulation 33(1) and more particularly the interpretation of paragraph three of DCR 33(1), inasmuch as on one hand the petitioner would contend that paragraph three of Regulation 33(1) provides for FSI as granted under paragraphs one and two to be utilized on the balance plot of land to the extent of 40% of the FSI so granted under paragraph one and two where the land is situated in Mumbai city. The contention as urged on behalf of the petitioner is that paragraph three of DCR 33(1) does not confer any benefit over and above the benefit granted under paragraphs one and two. On the other hand, the 14 of 27 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 02:16:08 ::: pvr pil6-16.doc respondents would contend that the FSI which would be available for development under regulation 33(1) would be "40% of the FSI of the balance plot which remains after surrender of the road area", for widening or construction of new road. Respondent No.4 is not in a position to show that this issue is no more res- integra. We accordingly reject the objection as raised on behalf of respondent No.4.
19. As the issue in the petition would revolve around the interpretation of DCR 33(1) and more particularly paragraph three thereof, it would be appropriate to extract the same. DCR 33(1) as is existed originally and after its amendment with effect from 19.4.2001 reads thus:-
Schedule Existing Regulation 33(1) Modification sanctioned: Road widening and construction of Road widening and construction of new Roads: new Roads The Commissioner may permit The Commissioner may permit additional FSI on 100 per cent of the additional FSI on 100 per cent of the area required for road widening or area required for road widening or for construction of new roads for construction of new roads proposed under the Development proposed under the Development plan or those proposed under the plan or those proposed under the Mumbai Municipal Corporation Mumbai Municipal Corporation Act,1888, excluding areas of internal Act,1888, excluding areas of internal means of access, if the owner means of access, if the owner (including the lessee) of such land (including the lessee) of such land surrenders such land for road surrenders such land for road widening or new road construction widening or new road construction 15 of 27 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 02:16:08 ::: pvr pil6-16.doc without claiming any compensation without claiming any compensation in lieu thereof and hands over the in lieu thereof and hands over the same to the Corporation free of same to the Corporation free of encumbrances to the satisfaction of encumbrances and after the owner or the Commissioner. Such 100% of the lessee has leveled the land to the FSI on land so surrendered to the surrounding ground level and after he Corporation will be utilizable on the has constructed a 1.5 mt. High remainder of the land upto a limit of compound wall leaving the set back (40% in respect of plots situated in area (or at a height stipulated by the Mumbai City and 80% in respect of Commissioner) with a gate at the cost plots situated in the suburbs and of the owner and to the satisfaction of extended suburbs) of the area of the the Commissioner. plot remaining after such When an owner or lessee or Power surrendered and the balance FSI of Attorney Holder/Authority Holder remaining thereafter shall be allowed also develops or constructs the road to be utilized as a Development Right on the surrendered land at his cost in accordance with regulations subject to such stipulations as may be governing Transfer of Development prescribed by the Commissioner to his Rights (TDRs) in Appendix VII or the satisfaction and hands over the said full FSI on the land surrendered to developed/constructed road to the the Corporation may be allowed to Commissioner free of cost, he may be used as Development Right in granted by the Commissioner accordance with the Regulations additional FSI equal to 25% of the Governing Transfer of Development area of this construction/ Rights (TDRs) in Appendix VII. development done by him (this Thereafter the road land shall be modification will not apply in cases transferred in the City Survey records where road FSI is utilised and also in the name of the Corporation and full occupation certificate is granted.) shall vest it in becoming part of public street as defined in sub-section Such 100% FSI on land so (3) of section 288 of the Mumbai surrendered to the Corporation Municipal Corporation Act,1888. and/or FSI towards road area constructed, will be utilizable on the remainder of the land upto a limit of 40% in respect of plots situated in Mumbai City and 80% in respect of plots situated in the suburbs and extended suburbs of the area of the plot remaining after such surrender and the balance FSI remaining thereafter shall be allowed to be utilized as a Development Right in accordance with Regulations Governing Transfer of Development Rights (TDRs) in Appendix VII or the 16 of 27 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 02:16:08 ::: pvr pil6-16.doc full FSI of land surrendered to the Corporation may be allowed to be used as Development Right in accordance with the Regulations Governing Transfer of Development Rights (TDRs) in Appendix VII.
Thereafter the road land shall be of the Corporation and shall vest it in becoming part of public street as defined in sub-section (3) of section 288 of the Mumbai Municipal Corporation Act,1888.
(emphasis supplied)
20. As noted above the question being posed on behalf of the petitioner concerns the interpretation of paragraph three (supra) of Regulation 33(1). The petitioner referring to paragraph three of regulation 33(1), contends that there is a complete mis- interpretation of paragraph three at the hands of the respondents, inasmuch as the FSI for the land surrendered to the Corporation (100% of the area so surrendered) and/or FSI towards road area constructed (25% of the area of the land so surrendered), would be utilizable on the remainder of the land only to the extent of 40% of such FSI, in respect of plots situated in Mumbai City and not 40% of the FSI of the area of the plot remaining after such surrender as being interpreted by the respondents.
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21. At the outset, we may observe that there is some ambiguity in the manner paragraph three (supra) of Regulation 33(1) is worded, which we discuss hereafter. A bare perusal of Regulation 33(1) makes it clear that it deals with "Road Widening and Construction of new Roads" and confers a benefit of FSI on the owner/lessee of the land who would surrender his land for the purpose of road widening or construction of new road. As apparently seen paragraph one of regulation 33(1) confers a power on the Commissioner to grant additional FSI of 100% of the area so surrendered by the owners/lessee without claiming any compensation. In paragraph two additional FSI equal to 25% area of the construction/development undertaken by the owner/ lessee can be granted if the owner/lessee interalia develops or constructs the road on the surrendered land at his cost and hands over the same to the Commissioner free of cost, however, with an exception that this modification will not be applicable in cases where road FSI is utilised and also full occupation certificate is granted. Further paragraph three of the DCR 33(1) provides that such 100% of the FSI on the lands so surrendered to the Corporation or FSI towards road area constructed, will be 18 of 27 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 02:16:08 ::: pvr pil6-16.doc utilizable on the remainder of the land, upto a limit of 40% in respect of the plot situated in Mumbai city and 80% of the land situated in the suburb and extended suburb, to be utilized on the plot remaining after such surrender. The balance FSI remaining thereafter shall be allowed to be utilized as a Development Right in accordance with Regulations governing Transfer of Development Rights (TDRs) as contained in Appendix VII of the DCR. Thus, a plain reading of regulation 33(1) makes it manifest that what is permissible under paragraph 3 of regulation 33(1) is that 100% of FSI of land so surrendered to the Corporation or 25% FSI towards road area constructed is utilizable on the area of the remaining plot. As the entire controversy is what would be the correct reading of paragraph three of regulation 33(1), we separately extract the said paragraph hereunder:-
"... ... ... ...
Such 100% FSI on land so surrendered to the Corporation and/or FSI towards road area constructed, will be utilizable on the remainder of the land upto a limit of 40% in respect of plots situated in Mumbai City and 80% in respect of plots situated in the suburbs and extended suburbs of the area of the plot remaining after such surrender and the balance FSI remaining thereafter shall be allowed to be utilized as a Development Right in accordance with Regulations Governing 19 of 27 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 02:16:08 ::: pvr pil6-16.doc Transfer of Development Rights (TDRs) in Appendix VII or the full FSI of land surrendered to the Corporation may be allowed to be used as Development Right in accordance with the Regulations Governing Transfer of Development Rights (TDRs) in Appendix VII. Thereafter the road land shall be of the Corporation and shall vest it in becoming part of public street as defined in sub-section (3) of section 288 of the Mumbai Municipal Corporation Act,1888." (emphasis supplied)
22. The ambiguity making a departure from giving a definite meaning to the provision crops up in paragraph three of regulation 33(1), as created by the following wordings:
".... of the area of the plot remaining after such surrender...." The endeavour of the Court would be to render the provision meaningful so as to fulfill the object and purpose it intends to achieve. On a plain reading of paragraph three of regulation 33(1), it is quite apparent that the word "of" (supra) as incorporated in the above sentence of the provision, completely takes away the object which the provision intends to achieve namely as to what has been stipulated in paragraphs one and two of Regulation 33(1). What is intended in paragraphs one and two of Regulation 33(1) is interalia conferring of an additional 20 of 27 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 02:16:08 ::: pvr pil6-16.doc benefit of FSI of 100% of the area required for road widening or construction of new road proposed under the development plan or those proposed under the Mumbai Municipal Corporation Act, if the owner/lessee surrenders such land for road widening or new road, without claiming any compensation in lieu thereof and hands over the same to the Corporation. Paragraph two provides for a benefit of 25% of additional FSI when owner/lessee actually develops or constructs the road on the surrendered land at his cost. When such additional FSI either of 100% or 25% is granted by the Municipal Commissioner/Corporation as aforestated, then, the owner or lessee is permitted to utilize the FSI on the remaining plot of land to the extent it is so conferred. Paragraph three of DCR 33(1) clearly provides for utilization of FSI so granted under paragraphs one and two. It cannot be read to mean that it confers on the owner/lessee an additional benefit dehors or over and above the benefit which has been conferred under paragraphs one and two of regulation 33(1). The interpretation as made by the respondents would require one to read paragraph three of DCR 33(1) to mean that for plots in Mumbai City it permits utilization of FSI of 40% of the balance 21 of 27 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 02:16:08 ::: pvr pil6-16.doc area of the plot remaining after such surrender, and not what has been conferred in paragraphs one and two of Regulation 33(1) of DCR. In our opinion such interpretation amounts to a complete absurdity. Paragraph three cannot be read to defeat what has been provided in paragraphs one and two of Regulation 33(1) of DCR and/or dehors paragraphs one and two of the said regulation. Paragraph three simplicitor provides for the manner of utilization of the FSI as would be granted in accordance with paragraphs one and two, on the balance plot of land. In reaching to this conclusion we are required to consider the provision in its entirety. The interpretation as canvassed on behalf of the respondents if accepted makes paragraph one and two of DCR 33(1) completely unworkable, in the statutory scheme, they appear, inasmuch as there is no indication elsewhere in the regulations as to how and in what manner FSI as conferred under paragraph one and two would be treated. In any event on first principles paragraph 3 of regulation 33(1) cannot be read so as to confer a benefit different from paragraphs one and two of the said regulation, when paragraph three of the said regulation merely speaks of utilization of the FSI conferred under paragraphs one 22 of 27 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 02:16:08 ::: pvr pil6-16.doc and two.
23. It is well settled that the Statute is designed to be workable and the interpretation which the Court would attribute shall serve that object. (Oswal Agro Mills Ltd. Etc. Vs. Collector of Central Excise and Ors.2) It is further well settled principle of interpretation that if the ordinary and plain reading of a statutory provision leads to an absurdity, contrary to the purpose, intent and object of the provision, then, it is permissible for the Court to correct the said anomaly and accord a construction which may even modify the meaning of the word and even the structure of the sentence. It would be profitable to refer to the following paragraph from Maxwell on the Interpretation of Statutes (12 th Edition, pg.228):-
"Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning."
2 1993 Supp (3) SCC 716 23 of 27 ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 02:16:08 ::: pvr pil6-16.doc In "Tirath Singh Vs. Bachittar Singh & Ors."3, their Lordships of the Supreme Court adverting to the above position in law and referring the above passage in Maxwell in interpreting Section 99 of the Representation of the People Act,1951 held as under:-
" It is argued that if the language of the enactment is interpreted in its literal and grammatical sense, there could be no escape from the conclusion that parties to the petition are also entitled to notice under the proviso. But it is a rule of interpretation well- established that, "Whether the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence."
(Maxwell's Interpretation of Statutes, 10 th Edition, p.229)" (emphasis supplied)
24. Adverting to the above norms of interpretation, we are of the considered opinion that paragraph three of regulation 33(1) does not confer any additional or a different FSI benefit than what is provided in paragraphs one and two of regulation 33(1). It only prescribes the manner in which the benefit of FSI already conferred under paragraphs one and two is to be utilized.
3 AIR 1955 SC 830
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The word "of" in the following sentence of paragraph three of regulation 33(1) creates an absurdity and is required to be read as "on". The relevant wording in paragraph three of regulation 33(1) (supra), thus is required to be read as under:-
"on the area of the plot remaining after such surrender" In our opinion, on the above interpretation the provision becomes workable and satisfies its legislative intent and object, namely of the grant of FSI and its utilization, in case of surrender of land for road widening and construction of new road.
25. We accordingly partly allow the petition in terms of the following directions.:-
(i) In the light of the interpretation of DCR 33(1) as held above the Municipal Commissioner shall re-calculate the area surrendered by respondent No.4 for road widening and construction of road under paragraphs one and two of Regulation 33(1) of the DCR and the FSI to be granted by the Municipal Commissioner thereunder, and thereafter calculate 40% of the said FSI to be utilized by respondent no.4 on the land remaining after such surrender.
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(ii) The Municipal Commissioner shall permit respondent
no.4, utilization of FSI conferred under paragraphs one and two of DCR 33(1) on the balance plot of land, only to the extent of 40% of the FSI so conferred under paragraphs one and two of the Regulation 33(1) and nothing more.
(iii) In the event, any excess FSI is granted to respondent no.4 under paragraph 3 of regulation 33(1), to be used on the said plot which is over and above the entitlement as stipulated under paragraphs one and two of regulation 33(1), in that event the Municipal Commissioner shall take corrective measures of withdrawing such excess FSI. If any construction is undertaken by respondent no.4 utilizing such excess FSI (non entitled FSI), respondent no.4 shall surrender the said construction in favour of the Municipal Corporation and/or the MHADA as per law or the same shall be adjusted in the balance non-completed works of respondent no.4 in the said project.
The petition is disposed of in the above terms. No costs.
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The Municipal Commissioner shall not take coercive steps in terms of the above order for a period of eight weeks from today.
(G.S.KULKARNI, J.) (CHIEF JUSTICE)
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