Gango Co-Operative Housing ... vs Municipal Corporation Of Greater ...
2003 Latest Caselaw 958 Bom

JUDGMENT

R. M. S. Khandeparkar, J.

1. Heard learned Advocates for the parties. Perused records. The short point for consideration which arises in the matter is whether the Corporation could have rejected the proposal of the petitioner for utilisation of the balance 0.25 FSI potential of the plot which undisputably belongs to the society.

2. The petitioners are the owners of a land bearing CTS No. 248 at Borivali (West), Mumbai Suburban District, having purchased the same from M/s Parag Corporation, the builders. The title to the plot was acquired by the petitioner-society pursuant to a consent decree passed in Original Side Suit No. 1272 of 1984 on 22-9-1984. Accordingly the petitioners' name has been entered as the holders/occupiers of the plot in the property register card. At the time of acquisition of title to the property by the petitioners-society, the permissible F.S.I. was 0.75:1. However, under the Development Control Regulation 1991, the FSI which could be availed from the properties was fixed at 1:1. Consequently the FSI to be generated from the said plot was increased by 0.25:1. The petitioners therefore decided to utilise the additional FSI by constructing an extension to the three buildings in such a way that each of the members would get one additional bed room attached to his or her flat and for that purpose submitted a lay out to the respondents which was approved by the respondents by order dated 19-1-1999. On such approval of the lay out, the petitioners submitted the plans to the respondents. Initially by letter dated 5-7-1999 as well as 15-7-1999 the petitioners were informed that on payment of requisite fees, the plans would be approved. However, by letter dated 27-12-1999, the petitioners were informed by the respondents that in view of the claim by M/s Parag Corporation that they have right to utilize the said FSI, sought clarification in that regard from the petitioners. The petitioners, therefore, while refuting the claim of M/s Parag Corporation to the said FSI, informed the respondents that the claim, if any, of such third party is to be adjudicated in the Court of law and the petitioners, who are admittedly the owners of the plot cannot be prevented from developing their property. The respondents, however, by their letter dated 19-1-2001 rejected the plans on the ground that the petitioners have no right to utilise the said FSI potential of the plot. Hence the present petition.

3. It is not in dispute that the Corporation has rejected the proposal of the petitioner-society for utilisation of the balance 0.25 FSI potential of the society's plot solely on the ground that there is objection from M/s Parag Construction for the same, as M/s Parag Construction has also submitted its proposal for utilisation of the said FSI. At the same time it is also not in dispute that the plot belongs to the society and it is in occupation thereof. It is also a matter of record that there has been some agreement between the petitioner-society and M/s Parag Construction in relation to the utilisation of the said FSI. However, petitioner's contention is that the said agreement has nothing to do with the right of the petitioner-society to utilise the said FSI or to seek development of the plot for utilising the said FSI, which is available to the petitioners consequent to the changes brought about under the Development Control Regulation, 1991, subsequent to the acquisition of the title to the property by the petitioners and which was not available on the date of agreement between the petitioners and the third party. The agreement was relating to the additional FSI as was legally available on the day of the agreement. It is neither necessary nor advisable to adjudicate upon this issue in this petition. The same will have to be decided on an appropriate proceedings between the petitioners and the said third party before an appropriate forum and it is too premature to pronounce any opinion on the said point.

4. Secondly, it is sought to be contended that in case there is any agreement between the petitioner-society and the said Parag Construction, it would have to be decided in appropriate proceedings in an appropriate forum and the Corporation cannot reject the proposal on the said count. This contention of the learned counsel for the petitioner is apparently well founded. Indeed, in the matter of grant or refusal of the plan for utilisation of additional FSI made available to the owner of a plot consequent to the change in the ratio of FSI potential for utilisation subsequent to acquisition of title by the person to such plot, the Corporation should be always guided by the provisions of law under which the decision regarding the grant or refusal of permission for such utilisation of FSI is to be taken and should not allow the same to be influenced by extravenous circumstances, nor shall venture to stall the development of the property by the owner of a plot on the ground other than on which the same can he refused in terms of the provisions of law relating to the development of the properties.

5. Where power is exercised for extraneous or irrelevant consideration or reasons, it would be unquestionably a colourable exercise of power or fraud on power and the exercise of power would stand vitiated as was held in the Collector (District Magistrate) Allahabad and Anr. v. Raja Ram Jaiswal, . It was also held in State of Punjab v. Gurdial Singh, , that an action is bad where the true object is to reach the end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment and that when the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested, the Court call it the colourable exercise and is undeceived by illusion. In Dr. Ram Manohar Lohia v. State of Bihar, , it was held that the Courts had always acted to restrain misuse of statutory power.

6. Dealing with the subject of misuse of power the Apex Court in Express Newspapers Pvt. Ltd. and Ors. v. Union of India and Ors., , has held that fraud on power voids the order if it is not exercised bona fide for the end design. While pointing out the difference between the exercise of power in good faith and exercise in bad faith, it was observed that the former arises when the authority exercises its power in breach of law by taking into account, bona fide and with best intentions, some extraneous matters or by ignoring relevant matters and the same renders the impugned order ultra vires, while the later arises when power is exercised for improper motive or to satisfy a private or personal grudge or for wrecking vengeance. It was ruled that "use of a power for an 'aben' purpose other than the one for which the power is conferred is mala fide use of that power".

7. In Shri Sitaram Sugar Co. Ltd. and Anr. v. Union of India, , it was held that a repository of power acts ultra vires either when he acts in excess of his power in the narrow sense or when he abuses his power by acting in bad faith or for an inadmissible purpose or on irrelevant grounds or without regard to relevant considerations or with gross unreasonableness. Reference was made to the decision in Westminister Corporation v. North Western Railway, (1905) AC 426, wherein it was held that ".......... it is well settled that a public body invested with statutory powers such as those conferred upon the Corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. He must act in good faith and must act reasonably......" It was then ruled by the Apex Court that any act of the repository power is open to challenge if it is in conflict with the governing Act or general principles of law of land.

8. In State of U.P. and Ors. v. Renusagar Power Co. and Ors., , it was held that the exercise of power will be set aside if there is manifest error in exercise of such power or exercise of power is manifestly arbitrary. Likewise if the power is exercised on a non-consideration, on non-application of mind to relevant factors, the exercise of power would be regarded as manifestly erroneous.

9. The owner of a property normally has right to use and enjoy his own property which right includes power of management of his property to the best of its utility as well as to consume or alienate the same. At best this right can be, and, in fact, has been regulated by statutory provisions and the statutory authorities created to ensure due implementation of such regulations are expected and required to act according to those statutory provisions relating to the regulation of such right within the parameters of the powers bestowed upon such authorities under the statute under which they are created. Transgression of such powers can result in their actions and decisions being void and/or illegal.

10. The provisions of law contained in the Chapter XII under the title "Building Regulations" of the Mumbai Municipal Corporation Act, 1888, regulates the rights of the owner and occupiers of the property in the City in relations to utilisation of their properties for construction activities and allied development thereof. Indiscriminate construction activities and disorderly development of the properties would ultimately result in disrupting orderly living in the city, apart from destroying aesthetic beauty and creating inconvenience to the public at large. The object of municipal regulations relating to construction and building activities in the city is to regulate the matters of public convenience. The same are meant to require the public to conform to certain rules, the non-compliance whereof can result in dislocation of normal comfort and thereby defeat the very object, which is intended to be achieved by those statutory provisions.

11. In terms of the provisions of law contained in the said Chapter XII of the said Act, every person intending to erect a building or carryout any other construction in the city has to give notice to Commissioner regarding such intention. The Commissioner can require such person to furnish plans and other documents regarding intended erection of the building or construction and may even require the plans to be prepared by a licenced surveyor. In case the applicant fails to furnish the required information or particulars in accordance with the provisions of law contained in Sections 338 to 340 of the said Act, the notice given under Section 337 or 342 of the intended execution of the building or construction would be deemed not to have been given. Construction activity which requires prior notice includes alterations in the existing building also.

12. The provisions of law contained in the said Act dealing with the powers of the Corporation regarding regulation of the construction activities in the city are at the stage of approval of the plans and issuance of licence for such construction activities are found embodied in Sections 338, 339, 340, 343, 345 and 346 whereas bar against commencement of construction activities by any person in the city is provided under Section 347 to 347-C.

13. Section 338 enumerates the list of documents which can be called for by the Commissioner pursuant to the receipt of notice under Section 337 regarding the intention to erect building and they are :

(a) correct plans and Sections of every floor of the building intended to be erected, which shall be drawn to a scale of not less than one inch to every eight feet and shall show the position, form, dimensions and means of ventilation of and of access to the several parts of such building and its appurtenances and the particular part or parts thereof which are, and those which are not, intended to be used for human habitation and in the case of a building intended to be used as a dwelling-house for two or more families or for carrying on any trade or business in which a number of people exceeding twenty may be employed are as a place of public resort, the means of ingress and egress. Such plans and sections shall also show the depth and nature of the foundations and the proposed dimensions of all the walls, posts, columns, beams, joints and all girders and scantling to be used in the walls, staircases, floors, and roofs of such building;

 (b)     a specification of each description of work proposed to be executed and of the materials to be employed. Such specification shall include a description of the proposed method of drainage of the building intended to be erected and of the sanitary fittings to be used and also of the means of water-supply and shall, if required by the Commissioner, be supplemented by detailed calculations showing the sufficiency of the strength of any part of such building; 
 

 (c)     a block plan of such building which shall be drawn to the scale of the largest revenue survey map at the time being in existence for the locality in which the building is, or is to be situated and shall show the position and appurtenances of the properties, if any, immediately adjoining, the width and level of the street, if any, in front and of the street, if any, at the rear of such building, the levels of the foundations and lowest floor of such building and of any yard or ground belonging thereto and the means of access to such building; 
 

 (d)     a plan showing the intended line of drainage of such building, and the intended size, depth and inclination of each drain, and the details of the arrangement proposed for the ventilation of the drains.  
 

14. Further under Section 339, the Commissioner may decline to accept any plan, section or description which does not bear the signature of the licenced surveyor in token of its being prepared by such surveyor and under his supervision. Section 340 empowers the Commissioner to call for production of further particulars and details as he deem necessary. Section 343 clarifies that the power under Sections 338, 339 and 341 can be exercised by the Commissioner in relation to the proposed construction activities sought to be executed and informed by notice under Section 342. Further Sections 345 and 346 provide thus:

345. When building or work may be proceeded with.-- If within thirty days after receipt of any notice under Section 337 or 342, or of the plan, section, description or further information, if any, called for under Sections 338, 340 or 343, as the case may be, the Commissioner fails to intimate in writing, to the person who has given the said notice, his disapproval of the building which the said person proposes to erect, or of the work which he proposes to execute;

or if, within the said period, the Commissioner signifies in writing to the said person his approval of the said building or work; the said person may, at any time within one year from the date of the delivery of the notice to the Commissioner, proceed with the said building or work in accordance with his intention as described in the notice or in any of the documents aforesaid, but not so as to contravene any of the provisions of this Act or any bye-law made under this Act at the time in force.

346. Building or work which is disapproved by the Commissioner may be proceeded with, subject to terms.-- (1) If the Commissioner disapproves of any building or work of which notice has been given as aforesaid or of any portion or detail thereof, by reason that the same will contravene some provision of this Act or some by-law made hereunder at the time in force or will be unsafe, he may, at any time within thirty days of the receipt of the notice or of the plan, section, description or further information, if any, called for under Section 338, 340 or 343, as the case may be, by a written notice intimate to the person who gave the notice first hereinbefore in this section mentioned his said disapproval and the reason for the same, and prescribe terms subject to which the building or work may be deemed to be approved by him.

(2) The person who gave the notice concerning any such building or work may proceed with the same, subject to the terms prescribed as aforesaid but not otherwise, at any time within one year from the date of receipt by him under Sub-section (1) of the written notice in this behalf, but not so as to contravene any of the provisions of this Act or any bye-law made hereunder at the time in force.

15. In terms of Section 347, no person is entitled to commence construction activities in the absence of compliance of the provisions of Section 345 or Section 346 as the case may be. Besides the time limit is prescribed for such activities from the date of issuance of licence for being entitled to construct. Sections 347 and 347-B of the Act deal with the restriction relating to use of the building after its construction. Section 347-C prohibits alterations in the building without written permission of the Commissioner. The provisions relating to the structure, material, size of rooms, height of the building, nature of roof, set back, frame of the building, means of egress and special conditions with respect to the erection or re-erection of the building in suburban and extended suburban area are to be found in Sections 348 to 349E. The power of inspection of the building in the course of erection, alteration etc. are assured to the authorities under Section 350. Section 351 reads thus :

  

 351. Proceedings to be taken in respect of buildings or work commenced contrary to Section 347.-- (1) If the erection of any building or the execution of any such work as is described in Section 342, is commenced contrary to the provisions of Section 342 or 347, the Commissioner, unless he deems it necessary to take proceedings in respect of such building or work under Section 354, shall, 
 

 (a)     by written notice, require the person who is erecting such building or executing such work, or has erected such building or executed such work, or who is the owner for the time being of such building or work, within seven days from the date of service of such notice, by a statement in writing subscribed by him or by an agent duly authorised by him in that behalf and addressed to the Commissioner, to show sufficient cause why such building or work shall not be removed, altered or pulled down; or  
 

 (b)     shall require the said person on such day and at such time and place as shall be specified in such notice to attend personally, or by an agent duly authorised by him in that behalf, and show sufficient cause why such building or work shall not be removed, altered or pulled down.
 

 Explanation. -- "To show sufficient cause" in this sub-section shall mean to prove that the work mentioned in the said notice is carried out in accordance with the provisions of Section 337 or 342 and Section 347 of the Act. 
 

(2) If such person shall fail to show sufficient cause, to the satisfaction of the Commissioner, why such building or work shall not be removed, altered or pulled down, the Commissioner ***** may remove, alter or pull down the building or work and the expenses thereof shall be paid by the said person. (In case of removal or pulling down of the building or the work by the Commissioner, the debris of such building or work together with one building material, if any, at the sight of the construction, belonging to such person, shall be seized and disposed of in the prescribed manner and after deducting from the receipts of such sale or disposal, the expenditure incurred for removal and sale of such debris and material, the surplus of the receipt shall be returned by the Commissioner, to the person concerned.)

(3) No Court, shall stay the proceeding of any public notice including notice for eviction, demolition or removal from any land or property belonging to the State Government or the Corporation or any other local authority or any land which is required for any public project or civil amenities, without first giving the Commissioner a reasonable opportunity of representing in the matter.

16. Sections 352, 352A and 353 deals with the power of the authorities under the said Act to enforce the provisions of the said Act and bye-laws made relating to the construction activities and to take necessary action for the same. Section 353A relates to occupancy certificate upon completion of the construction of the building.

17. Section 354 empowers the removal of the structure which is ruinous condition or likely to fall. Section 354A reads thus:

354A. Power of Commissioner to stop erection of building or work commenced or carried out unlawfully.-- (1) If the Commissioner is satisfied that the erection of any building or the execution of any such work as is described in Section 342 has been unlawfully commenced or is being unlawfully carried on upon any premises, the Commissioner may, by written notice, require the person erecting such building or executing such work to stop such erection or work forthwith.

(2) If the erection of the building or execution of the work is not stopped as required by the Commissioner, or permission approved by the competent authority in favour of the erection of the building or execution of the work is not produced within twenty-four hours from the service of notice referred to in Sub-section (1), the Commissioner may, without further notice, remove or pull down the building or work and the expenses thereof shall be paid by the said person or owner of the building or work. The Commissioner may also direct that any person directing or carrying out such erection or work shall be removed by any police officer from the place where the building is being erecting or the work is being executed.

(3) In addition to the action that the Commissioner may take under Sub-section (2), he may, without further notice, cause to be removed any materials, machinery, equipments, devices or articles used in the process of erection of the building or execution of such work.

(4) If the expenses incurred by the Commissioner may take under Sub-section (2) and (3) are not paid within one month from the date of demand, such sum as remains unpaid shall be treated, as arrears of property tax and the procedure prescribed under this Act for recovery of arrears of property tax shall, mutatis mutandis, apply to the recovery of such unpaid sum.

Section 354AA empowers the authority to regulate construction of certain class of buildings in particular streets or localities.

18. Perusal of the provisions of law referred to above would disclose that the control of the authorities in relation to the construction activities in city is governed by the statutory provisions in the said Act and the authorities are required to exercise the said power within the parameters of the jurisdiction given to them in that regard. These powers specifically relate to the control over the planned development of the city, so that the public in city could have an orderly life. The power does not include right to give any specific performance of the agreement between the owner of the property in the city and the third party even in relation to the construction activities. Undoubtedly the authorities under the said Act will have to ascertain whether the person applying for permission to construct has right to do so in the property wherein construction is proposed to be done. The owner having inherent right to utilise his property to the best of its use will obviously be one of such person who is entitled to apply for licence to construct. Any other person will be entitled to do so, provided he has been delegated the said powers, in one form or the other by the owner of the property. However, mere agreement with the third party to utilise the F.S.I. in the property will not empower the Corporation to deny such right to the owner if the owner submits his application for the same in accordance with the provisions of law contained in the said Act. In such a case the third party will have to seek necessary relief from Civil Court for specific performance of such agreement, but the same will not entitle the authorities under the said Act to deny the right of exploiting such F.S.I. by the owner himself solely on the basis of objection by third party based on such agreement. It is only through the appropriate Court that such third party can obtain necessary relief and only thereupon the authorities under the said Act also would be bound by any such order of the Court, even if corporation is not a party to the proceedings before the Court.

19. The Respondents have not disclosed any other reason for rejection of the proposal of the petitioner-society in relation to the utilisation of the FSI. A feeble attempt was made by the learned Advocate for the respondents, to contend that there is no FSI available. However, the said contention is totally devoid of any substance as the letter dated 19-1-2001 of the Corporation itself discloses that on site 0.25 FSI is available for utilisation and the only dispute which was sought to be raised by the Corporation was about right of the petitioner-society to utilise the same in view of the objection by M/s Parag Corporation based on the agreement.

20. The learned Counsel for the respondents was unable to point out any provision in law either in the Mumbai Municipal Corporation Act, 1888, or in any other Act governing or relating to the grant of permission for construction activities in the city of Mumbai, which can empower the Corporation to reject the proposal to the owner of the plot for utilisation of the available FSI solely on the ground that the owner has entered into some agreement with a third party for utilisation of the such FSI. In case such an agreement is arrived at between the owner and the third party, it will be entirely for the third party to seek necessary relief in that regard from appropriate forum and on that count the Corporation will not be entitled to reject the proposal for utilisation of such FSI by the owner.

21. Once it is apparent that the Corporation could not have disputed such right of the petitioner-society solely on the basis of an agreement between the petitioner-society and M/s Parag Construction and there having no other reason to reject the proposal, the letter dated 19-1-2001 of the Corporation addressed to the petitioner-society is liable to be quashed and set aside, whereby the proposal of the petitioner-society was rejected by the Corporation. The Corporation has to take appropriate decision with regard to the proposal of the petitioner-society afresh in accordance with the provisions of law and within four weeks from the receipt of writ of this Court.

22. The petition therefore succeeds. The impugned decision communicated to the petitioner by letter dated 19th January 2001 by the respondents is hereby quashed and set aside and the respondents are directed to reconsider the proposal of the petitioner afresh in accordance with the provisions of law within four weeks from the receipt of the writ of this Court. Rule is made absolute in the above terms with no order as to costs.