Bombay High Court
Sudhir M. Khandwala vs The Municipal Corporation Of ... on 16 December, 2009
Bench: S.C. Dharmadhikari
1
IN THE HIGH COURT OF JUDICAUTURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURSIDICTION
WRIT PETITION NO. 1077 OF 2007
ALONG WITH
WRIT PETITION NOS.3123 OF 2006, 1124 OF 2007,
1130 OF 2007, 1190 OF 2007, 1428 OF 2007, 1364 OF 2009,
1572 OF 2009, WRIT PETITION (LODGING) NOS.1280 OF 2007,
1467 OF 2007, PUBLIC INTEREST LITIGATION NO.100 OF 2008,
AND
WRIT PETITION NO. 1379 OF 2008 (A.S.)
WRIT PETITION NO. 1077 OF 2007
Sudhir M. Khandwala )
Adult, Occ.: Business )
residing at 2nd Lane, Khetwadi Sangli )
1st Floor, Sahakari Bhavan, Mumbai 04. ).. Petitioner
Versus
1) The Municipal Corporation of Greater )
Mumbai, Mahapalika Marg, Mumbai )
(Summons to be served on the )
Municipal Commissioner, Municipal )
Corporation of Greater Mumbai )
Mumbai-01. )
2) The Municipal Commissioner )
Municipal Corporation of Greater Mumbai )
Mumbai-01. )
3) Executive Engineer, Building Proposal )
MCGM, R-Ward, Kandivali (W) )
Mumbai 400 067. )
4) The Slum Rehabilitation Authority )
Grihnirman Bhavan, Bandra (East) )
Mumbai. )
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5) M/s. Ravi Real Estate Developers Pvt. Ltd. )
A Company incorporated under the )
Companies Act, 1956 having registered )
office at : 76, Laxmi Palace, Mathuradas )
Lane, Kandivali (West), Mumbai 400067 )
6) Shri Jayesh T. Shah )
in his capacity as Director of )
a) M/s.Ravi Real Estate Developers Limited )
b) M/s.Ravi Ashish Land Developer Limited )
and in capacity as Partner of )
a) M/s.Monarch & Querishi Builders )
b) M/s.Ravi Foundation )
c) M/s.New Monarch Builders
d) M/s.Ravi Developments
)
)
having office at 76, Laxmi Palace )
Mathuradas Lane, Kandivali (West) )
Mumbai 400 067. )
7) Arun Damji Gada )
Proprietor of M/s Nova Nirman Nigam )
104, Divya Gaurav Gagan, Gaurav Garden )
Complex, Kandivili (W), Mumbai 400067 )..Respondents
Mr. V.A. Thorat, Senior Advocate, a/w Mr. P.J. Thorat for the
Petitioner.
Mr. K.K. Singhvi, Senior Advocate, a/w Mrs.V.S. Gharapure for
the Mumbai Municipal Corporation.
Mr. J.G. Reddy i/b Utangale & Co. for Respondent No.4.
Mr. N.H. Seervai, Senior Advocate, a/w Mr. R.N. Narula and
Mr.Anuj Narula i/b M/s. J.Naruyla & Associate for Respondent
Nos.5 and 6.
Mr. F.E. D'itre, Senior Advocate, a/w. Ms.Rajani Iyer, Senior
Advocate, and Mr. Birendra Saraf i/b Y.N. Adhia for Respondent
No.7.
Ms.Geeta Shastri, Assistant Government Pleader, for the State.
Mr. Sanjay Jain i/b Nityoah Sunil for the Applicant.
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ALONG WITH
WRIT PETITION NO.3123 OF 2007
M/s. Goolamally Hasanjee )
a Partnership firm registered under the provisions )
of Indian Partnership Act, carrying on business )
from 76/78, Chakala Street, Patel Building )
Mumbai 400 003. ).. Petitioner
Versus
1) The Municipal Corporation of Greater )
Mumbai, a statutory body having its )
Head Office at Mahapalika Marg )
Mumbai 400 001. )
2) Executive Engineer, Building Proposals )
(South), having his office at "E" Ward
Byculla, Mumbai 400 008.
)
)
3) State of Maharashtra )
through Urban Development Dept. )
Mantralaya, Mumbai 400 032. )..Respondents
Mr. S.U. Kamdar a/w Mr. N.M. Shah for the Petitioner.
Mr. Shekhar Ingavale, Assistant Government Pleader, for the State.
Mr. K.K. Singhvi, Senior Advocate, a/w Mrs.V.S. Gharapure for
the Mumbai Municipal Corporation.
ALONG WITH
WRIT PETITION NO.1124 OF 2007
Rameshchand S. Dhanesha )
an Adult of Mumbai, residing at 29, Second )
Floor, Girgaum Adarsh Co-operative Housing )
Society Ltd., Goregaonkar Lane, Girgaon )
Mumbai 400 004. )..Petitioner
Versus
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1) Municipal Corporation of Greater Mumbai )
a Local Statutory Body through its )
Commissioner of Municipal Corporation of )
Greater Mumbai, having its office at )
Mahapalika Marg, Fort, Mumbai 400 001 )
and having its Branch Office through )
Asstt. Commissioner of Municipal )
Corporation at P/North Ward Office )
1st Floor, Liberty Garden, Malad (West) )
Mumbai 400 064. )
2) Smt. Hema Anil Shah )
Legal heir/wife of deceased Shri Anil K.Shah)
an Adult of Mumbai, residing at Sonabai )
Chawl, Room No.__, Shivaji Chowk )
144 Daftary Road, Malad (West)
Mumbai 400 097.
)
)
3) Anilkumar Manilal Prajapati )
an Adult of Mumbai, residing at )
Rameshchand S. Dhanesha Chawl, )
144, Daftary Road, Malad (East) )
Mumbai 400 097. )..Respondents
Mr. M.B. Jadhav for the Petitioner.
Mr. K.K. Singhvi, Senior Advocate, a/w Ms.Aruna Savla for
the Mumbai Municipal Corporation.
ALONG WITH
WRIT PETITION NO.1130 OF 2007
Bhupendra Rajaram Gupta alias Shah )
aged 24 years, having address at Rajaram )
Gupta Chawl, Sainath Anmol Nagar, Cutting )
No.10, Appapada Kurar Village, Malad (E) )
Mumbai 400 097. )..Petitioner
Versus
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1) Municipal Corporation of Greater Mumbai )
a Municipal Corporation duty constituted )
under Mumbai Municipal Corporation )
Act, 1888 having its address at Mahapalika )
Marg, Opp. CST Railway Station, Fort )
Mumbai 400 001. )
2) Asst. Commissioner )
P/North Ward Office, Liberty Garden )
Malad (West), Mumbai 400 064. )
3) Vijay Bhagvansing Chauhan alias Vijay )
Marwadi, an adult having address at )
Shivkrupa Welfare Society, Azaz Nagar )
Op. Sir D.S. High School, R.S. Marg )
Malad (East), Mumbai 400 097. )
4)
Koushlendra Prabhunath Dubey
An adult of Bombay having address at
)
)
Rajaram Gupta Chawl, Anand Nagar )
Appa Pada, Malad (East), Mumbai 400 097. )..Respondents
Mr. V.S. Deokar for the Petitioner.
Mr. K.K. Singhvi, Senior Advocate, a/w Mrs.V.S. Gharapure for
the Mumbai Municipal Corporation.
ALONG WITH
WRIT PETITION NO.1190 OF 2007
Ramprasad Soni )
of Mumbai Indian Inhabitant residing at )
1/1, Satyam Building, Kalina-Kurla Road )
Santacruz (East), Mumbai 400 098. )..Petitioner
Versus
1) Subhash Satyapal Singh )
Indian Inhabitant of Mumbai having )
address at Makhija Building, Church Road )
Kalina, Mumbai 400 029. )
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2) Municipal Corporation of Greater Mumbai )
having their head office at Mahapalika )
Building, Mahapalika Marg, Fort )
Mumbai 400 001. )..Respondents
Mr. A.C. Singh a/w Mr. D.R. Shah for the Petitioner.
Mr. K.K. Singhvi, Senior Advocate, a/w Mrs.V.S. Gharapure for
the Mumbai Municipal Corporation.
ALONG WITH
WRIT PETITION (LODGING) NO.1280 OF 2007
1) Tulsi Tower Co-operative Housing Society )
Limited, a registered society having its )
office at Tulsi Tower Building, P.F. 188,
51th Road, TPS III, Borivali (West)
)
)
Mumbai 400 092. )
2) Bharat J. Patel )
Flat No.1001, 10th Floor )
3) Alpesh P Patel )
Flat No.102, 10th Floor )
4) Kalpesh B. Dhamalia )
Flat No. 1003, 10th Floor )
5) Manji R. Sawani )
Flat No.1101, 11th Floor )
6) Surekha Devichand Rawal )
Flat No.1102, 11th Floor )
7) Navin Ramjibhai Patel )
Flat No.1103, 11th Floor )
8) Mahendra A. Patel )
Flat No.1201, 12th Floor )
9) L.K. Sukhadia )
Flat No.1202, 12th Floor )
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10) Alpesh Lakhubhai Patel )
Flat No.1203, 12th Floor )
Flat Nos.1301, 1302, 1303 and 1401, 13th )
& 14th Floors, All adults, Indian Inhabitants )
residing in their respective flats as above )
situated at Tulsi Tower Bldg., Tulsi Tower )
Co-op. Hsg. Society Ltd., 51th Road, )
T.P.S. III, Borivali (West), Mumbai 400 092 )..Petitioners
Versus
1) Municipal Corporation of Greater Mumbai )
Body Corporate incorporated under BMC )
Act, 1888, having its head office at )
Mahapalika Building, Mahapalika Marg )
Opp. C.S.T., Mumbai 400 001. )
2) Municipal Commissioner )
Mumbai Mahanagar Palika having office )
at Mahapalika Building, Mahapalika Marg )
Opp.C.S.T., Mumbai 400 001. )
3) Assistant Engineer (B.P) W.S. "R" Ward )
Mumbai Mahanagar Palika having office )
at W.S. "R" Ward, Dr.Babasaheb Ambedkar )
Market Bldg., Kandivali (West) )
Mumbai 400 067. )
4) Jyotsna Construction Pvt. Ltd. )
a Company incorporated under Companies )
Act and carrying on business of building )
construction as Developers/Builders )
having office at 1, Hormestead, 16, )
Dattatray Road, S.V. Road, Santacruz (West))
Mumbai 400 054 and also office at Benzer )
Tower, 2nd Floor, Behind Bhor Industries )
Borivali (E), Mumbai 400 066. )
5) Dhirubhai Nagarjibhai Mehta )
6) Nitinkumar Nagarjibhai Mehta )
7) Manikumar Nagarbhai Mehta )
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8) Vinaykumar Nagarjibhai Mehta )
9) Pradeep Nagarjibhai Mehta )
10) Deepak Nagarji Vashi )
11) Jyotsnaben Nagarjibhai Mehta )
12) Rashmikant Ranchhodji Desai )
13) Shobhna Rashmikant Desai )
All adults, Indian Inhabitants, Nos.5 to 13 )
being Directors and officials of Jyotsna )
Construction Pvt. Ltd. having office at )
1, Hormestead, 16, Dattatray Road, S.V. )
Road, Santacruz (West), Mumbai 400 054. )..Respondents
Mr. O.P. Pande i/b Pande & Co. for the Petitioners.
Mr. K.K. Singhvi, Senior Advocate, a/w Ms.S. Ajithkumar and
Mrs.V.S. Gharapure for
the Mumbai Municipal Corporation.
Mr. R.S. Mishra for Respondent Nos.4 and 7.
ALONG WITH
WRIT PETITION NO.1428 OF 2007
1) Dr. Renu Dilip Agarwal )
Age 33 years, Occupation : Doctor )
2) Dr. Jyoti Rajiv Agarwal )
Age 37 years, Occupation : Doctor )
Both having their address at ½, Ground )
Floor, Divya Stuti, Wing B, Survey No. 261 )
CTS No.620 (Part), Gen. A.K. Vaidya Marg )
Film City Road, Goregaon (East) )
Mumbai 400 063. )..Petitoners
Versus
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1) State of Maharashtra )
(Summons to be served on the learned )
Government Pleader, High Court, O.S. )
2) The Secretary )
Urban Development Department )
Government of Maharashtra, Mantralaya )
Mumbai 400 032 )
(Summons to be served on the learned )
Government Pleader, High Court (O.S.) )
3) The Additional Collector and the Competent)
Authority, [Urban Area Land Holding] )
Mumbai. )
(Summons to be served on the learned )
Government Pleader, High Court [O.S.] )
4)
The Chief Executive Officer )
Slum Rehabilitation Authority )
Griya Nirman Bhavan, Bandra (E) )
Mumbai 400 051. )
[Summons to be served on the learned )
Government Pleader High Court [O.S.] )
5) Municipal Corporation of Greater Mumbai )
A Statutory Authority established under )
the provisions of Bombay Municipal )
Corporation Act, 1888 having its head )
office at Mahanagarpalika Bhavan, CST )
Mumbai Pin 400 001. )
6) The Municipal Commissioner of Greater )
Mumbai, having his office at Mahanagar- )
-palika Bhavan, C.S.T., Mumbai Pin 400001 )
7) The Sub Registrar, Borivali )
Borivali, Mumbai )
[Summons to be served on the learned )
Government Pleader High Court [O.S.] )
8) The Sub Registrar, Goregaon Mumbai )
[Summons to be served on the learned )
Government Pleader High Court [O.S.] )
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9) The Sub-Registrar, Malad, Malad, Mumbai )
[Summons to be served on the learned )
Government Pleader, High Court [O.S.] )
10) M/s Ravi Ashish Estate Land Developers )
Ltd. (formerly known as M/s. Aashis Land )
Developers Ltd.) A Company registered )
under the Companies Act, 1956 having its )
office at 76 Laxmi Palace, Mathuradas )
Bhavan, Kandivali (W), Mumbai 400067. )
11) Shri Jayesh Tokershi Shah )
in his capacity as Director of )
a) M/s.Ravi Real Estate Developers Limited )
b) M/s.Ravi Ashish Land Developer Limited )
and in capacity as Partner of )
a) M/s. Monarch & Qureshi Builders
b) M/s. Ravi Foundation
)
)
c) M/s New Monarch Builders )
d) M/s. Ravi Developers )
e) M/s. Yash Developments )
having office at 76, Laxmi Palace )
Mathuradas Lane, Kandivali (West) )
Mumbai 400 067. )
12) Divya Stuti Co-operative Housing Society )
Ltd., A co-operative society registered under )
Maharashtra Co-operative Socieities Act )
having its registered office at Divya Stuti )
Building, Kannyachapada, Gen. A.K. Vaidya )
Marg, Goregaon (East), Mumbai 400 063 )
through its Secretary, Anil Tiwari, Adult )
Occupation : Business, residing at 202-A )
Divya Stuti, Kannyachapada, Gen. A.K. )
Vaidya Marg, Goregaon (East), )
Mumbai 400 063. )..Respondents
Mr.P.J. Thorat for the Petitioner.
Ms.Geeta Shastri, Assistant Government Pleader, for the State.
Mr. K.K. Singhvi, Senior Advocate, a/w Mrs.V.S. Gharapure for
the Mumbai Municipal Corporation.
Mr. R.N. Narula a/w Mr.Anuj Narula i/b J.Narula & Associates
for Respondent Nos.10 and 11.
Mr. J.G. Reddy for Respondent No.4.
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ALONG WITH
WRIT PETITION (LODGING) NO.1467 OF 2007
Zarar Qureshi (Zoro) )
residing at ALJ Residency, Flat No. 201 )
2nd Floor, ALJ Residency, 49/C, Pali Naka )
Bandra (West), Mumbai 400 050. )..Petitioner
Versus
1) Municipal Corporation of Greater Mumbai )
A body Corporate, incorporated under the )
provisions of Mumbai Municipal )
Corporation Act, 1888 having its head
office at Mahapalika Bhavan, Mahapalika
)
)
Marg, Fort, Mumbai 400 001. )
2) Bhati Homes Pvt. Ltd. )
Builders & Developers having their office )
at 151, Accost Building, Ground Floor )
Opp. Memon Bank, Pali Road, Bandra )
(West), Mumbai 400 050. )
3) Iqbal Bhati )
Director of Defendant No.2 having office )
at 151, Accost Building, Ground Floor )
Opp. Memon Bank, Pali Road )
Bandra (West), Mumbai 400 050. )
4) Shamima Khatoon )
An adult, Indian Inhabitant of Mumbai )
Residing at Flat No. 601 )
5) Oscar Pereira )
An adult, Indian Inhabitant of Mumbai )
Residing at Flat No. 602 )
6) Qashim Shaikh )
An adult, Indian Inhabitant of Mumbai )
Residing at Flat No. 603 )
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7) Zulekha Ghori )
An adult, Indian Inhabitant of Mumbai )
Residing at Flat No. 701 )
8) M/s Volga Spices Pvt. Ltd. )
a Company incorporated under the )
provisions of Companies Act, 1956 )
through its Director Mr.Tufail Ahmed )
Shaikh, Residing at Flat No.702 )
Nos.4 to 8 all having their respective flats )
ALJ Residency, 49/C, Pali Naka )
Bandra (West), Mumbai 400 050. )
9) M/s. H.M. Jhaveri & Sons )
C/o Mr. Ashwin Jhaveri )
Madhav Apartment, 2nd Floor, S.V. Road )
Andheri (West), Mumbai 400 058. )..Respondents
Mr. R.R. Sharma for the Petitioner.
Mr. K.K. Singhvi, Senior Advocate, a/w Mrs.V.S. Gharapure for
the Mumbai Municipal Corporation.
Mr. D.H. Mehta a/w Mr. D.D. Mehta i/b Divya Shah Associates
for Respondent No.2.
Mr. M.D. Pol i/b Auroma Law for Respondent Nos.4-8.
ALONG WITH
PUBLIC INTEREST LITIGATION NO. 100 OF 2008
1) Sudhir M Khandwala )
Age 52, Adult, Occ. Business )
residing at 2nd Lane, Khetwadi Sahkari )
Bhawan, Mumbai 04. )
2) Dhananjay M Pandey )
Anand Apartment, B/105, Thakur )
Complex, Kandivali (East), Mumbai 400101 )..Petitioners
Versus
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1) The State of Maharashtra through the )
Education Department and the Urban )
Development Department (through the )
learned Government Pleader, High Court )
[O.S.], Bombay. )
2) The Additional Collector and the Competent)
Authority (Learned Government Pleader )
High Court [O.S.], Bombay )
3) The Municipal Corporation of Greater )
Mumbai, a Statutory Authority established )
under the provisions of Bombay Municipal )
Corporation Act, 1888 having its head )
office at Mahanagarpalika Bhavan, C.S.T. )
Mumbai 400 001. )
4)
The Municipal Commissioner having office )
at Mahanagarpalika Bhavan, C.S.T. )
Mumbai 400 001. )
5) The Chief Engineer (DP) )
having ofice at Mahanagarpalika Bhavan )
C.S.T., Mumbai 400 001. )
6) The Education Officer having office at )
Mahanagarpalika Bhavan, C.S.T., )
Mumbai 400 001. )
7) The Executive Engineer, Building )
Proposal, R Ward, having office at )
Kandivali (W), Mumbai 400 067. )
8) Jayesh T. Shah in his capacity as )
a) Constituted Attorney of Bai Motibai )
Education Trust and others )
b) Partner of M/s Yash Developments )
having office at 76, Laxmi Palace )
Mathuradas Lane, Kandivali (West) )
Mumbai 400 067. )
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9) Pradeep Damji Shah )
Constituted Attorney of Mr. Jayesh T. Shah )
& Ors. Partner of M/s.Neha Developer )
having office at 6, Shyam Bhuvan )
Kandivali (West), Mumbai 400 067. )..Respondents
Mr. U.P. Warunjikar i/b Mr.A.G. Purohit for the Petitioners.
Mr. K.K. Singhvi, Senior Advocate, a/w Mrs.V.S. Gharapure for
the Mumbai Municipal Corporation.
Mr. R.N. Narula i/b Mr.J. Narula & Associates for Respondent No.8.
Mr.S.U. Kamdar a/w Mr. D.H. Mehta i/b D.M. Legal Associates
for Respondent No.9.
Mr. N.P. Pandit, Assistant Government Pleader, for the State.
ALONG WITH
WRIT PETITION NO. 1572 OF 2009
1) Mrs. Asha wife of Govind Garg )
Age 52 years )
2) Mr. Govind G. Garg, age 55 years )
presently residing at Flat No.2603 )
situate in the building known as )
Maharaja Retreat, Film City Road )
Goregaon (E), Mumbai 400 063. )..Petitioners
Versus
1) The State of Maharashtra )
to be served through Government Pleader )
High Court, Bombay. )
2) Mr. Sajjan Bajoria, of Bombay, Indian )
Inhabitant, residing at Flat No.B/1701 )
Aster Tower, Mhada, Vasant Valley Phase )
II, Film City Road, Goregaon (E) )
Mumbai 400 063. )
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3) Ravi Ashish Land Developers Ltd. )
a Company incorporated under the )
provisions of Companies Act having )
their office situate at Laxmi Palace )
76, Mathuradas Road, Kandivali (W) )
Mumbai 400 067. )..Respondents
Mr. A.M. Saraogi for the Petitioners.
Ms.S.M. Dandekar, Assistant Government Pleader, for the State.
Mr.R.N. Narula i/b J.Narula & Associates for Respondent No.3.
ALONG WITH
WRIT PETITION NO. 1379 OF 2008 (APPELLATE SIDE)
1)
Sudhir M. Khandwala, age 58 years )
Adult, Occ.: Business, having address )
at 2nd Lane, Sangli, 1st Floor, )
Sahakari Bhavan, Mumbai 400004 )
2) Mr. Rajesh Mehta )
Srushti-C Building, 1st Floor )
Gaurav Gardens, Kandivali (W) )
Mumbai 400 067. )..Petitioners
Versus
1) The State of Maharashtra through )
Principal Secretary, Urban Development )
Department, Mantralaya, Mumbai 400032 )
2) The Konkan Housing and Area Development)
Board, Griha Nirman Bhavan )
Mumbai-51. )
3) The Mira Bhayander Municipal Corporation )
Main Bulding, Shivaji Marg, )
Bhayander (East), District Thane. )
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4) Additional Collector and Competent )
Authority, (Urban Area Land Holding) )
Collectorate, Thane. )
5) Slum Rehabilitation Authority )
Griha Nirman Bhavan, Bandra (East) )
Mumbai. )
6) Municipal Corporation for Greater Mumbai )
a statutory authority constituted under the )
Bombay Municipal Corporation Act, 1888 )
and having its head office at Mahanagar )
Palika Building, CTS, Mumbai 400 001. )
7) Shri Jayesh Tokershi Shah )
in capacity as Partner of )
a) M/s.Ravi Developments )
b) M/s.Monarch & Quereshi Builders
c) M/s.Ravi Foundation
)
)
d) M/s.New Monarch Builders )
e) M/s.Yash Developments )
and in his capacity as Director of )
a) M/s.Ravi Real Estate Developers Limited )
b) M/s.Ravi Ashish Land Developer Limited )
c) M/s.Ravi Infrastructure & Leasing )
d) M/s.Ravi Jyot Finance & Leasing P. Ltd. )
e) M/s.Ravi Nirman Nigam Ltd. )
f) M/s.Ravi Gruh Nirman Ltd. )
g) M/s.Vijay Kamal Properties Pvt. Ltd. )
having office at 76, Laxmi Palace )
Mathuradas Lane, Kandivali (West) )
Mumbai 400 067. )..Respondents
Mr.A.V. Anturkar, Senior Advocate, a/w Mr. P.J. Thorat for
the Petitioners.
Mr.S.D. Rairkar, Assistant Government Pleader, a/w Mr. S.R.
Nargolkar, Assistant Government Pleader, for the State.
Mr. K.K. Singhvi, Senior Advocate, a/w Mrs.V.S. Gharapure for
the Mumbai Municipal Corporation.
Mr. R.S. Apte, Senior Advocate, for Respondent No.3.
Mr. G.D. Utangale a/w Mr.Suresh Patil i/b M/s.Utangale & Co.
for Respondent No.5.
Mr.R.Narula a/w Mr.Anuj Narula i/b J.Narula & Associates for
Respondent No.7.
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AND
WRIT PETITION NO.1364 OF 2009 (ORIGINAL SIDE)
1) Mr.Jayesh Thakrashi Shah, Age 47 years )
of Mumbai, Indian Inhabitant, Partner of )
the Petitioner No.2 having his office at )
76, Laxmi Palace, Mathuradas Lane )
Kandivali (W), Mumbai 400 067. )
2) M/s.Ravi Developments )
duly registered partnership firm carrying )
on business at 76, Laxmi Palace, )
Mathuradas Lane, Kandivali (E) )
Mumbai 400 067. )..Petitioners
Versus
1) The State of Maharashtra )
through its Secretary, the Urban )
Development Department, Mantralaya )
Mumbai 400 032. )
2) Mira Bhayander Municipal Corporation )
Mody Building, Chhatrapati Shivaji Marg )
Bhayander (East), District Thane. )..Respondents
Mr. R.N. Narula i/b J.Narula & Associates for the Petitioners.
Mrs. M. Kajale, Assistant Government Pleader, for the State.
Mr. M.S. Lagu for Respondent No.2.
CORAM : SWATANTER KUMAR, C.J.,
S.C. DHARMADHIKARI, J.
JUDGMENT RESERVED ON : 8TH DECEMBER 2009
JUDGMENT PRONOUNCED ON : 16TH DECEMBER 2009
JUDGMENT : (PER DHARMADHIKARI, J.)
Rule in all the Writ Petitions. Rule made returnable
forthwith. By consent of parties, petitions are heard finally.
2. These Writ Petitions and Public Interest Litigations were
heard together. Although, some of the points in them are common,
it would be necessary to refer to the facts in each of these Writ
Petitions. However, majority of them involve the common issue,
namely, unauthorized works, irregularities and illegalities in
construction of buildings and the power of the Planning and
Municipal authorities to regularize such acts of Builders and
Developers.
I) WRIT PETITION NO. 1077 OF 2007
3. In this Writ Petition, the Petitioner Sudhir Khandwala
has approached this Court on the basis that he is residing presently
in South Bombay but he is a purchaser of Flat Nos.1004A and 1004B,
10th Floor, Gaurav Gagan Building constructed in Kandivali (West),
Mumbai 400067.
4. It is his case that the Respondent No.1 is the Mumbai
Municipal Corporation which is a body corporate incorporated under
the Mumbai Municipal Corporation Act, 1888 (hereinafter referred
to for short as "MMC Act, 1888"). Respondent Nos.2 and 3 are its
Officers. Respondent No.4 is the Slum Rehabilitation authority
constituted under the Maharashtra Slum Areas (Improvement,
Clearance and Redevelopment) Act, 1971 (hereinafter referred to for
short as "the Slum Act"). It is common ground that Respondent Nos.
1 to 3 are also the authorities under the Maharashtra Regional and
Town Planning Act, 1966 (hereinafter referred to for short as "MRTP
Act").
5. Respondent No.5 is a Private Limited Company carrying
on business as builder and developer. Respondent No.6 is the
Director of this Company.
6. In this Writ Petition, an order was made after hearing
both sides that Respondent No.7 be impleaded as party Respondent.
It is a proprietary concern of one Arun Damji Gada. Since it was
stated that Respondent No.7 is also responsible for construction of
the building in question that the impleadment was ordered by us.
7. The Petitioner states that he is aggrieved by an order
dated 14th May 2007 passed by the Municipal Commissioner
(Respondent No.2) directing the builder and developer to demolish
all floors above the 7th floor of Gaurav Gagan building. The
Petitioner states that he and the other flat purchasers in this building
are aggrieved by the order of the Municipal Commissioner.
8. It is the case of the Petitioner that he purchased two
flats from Respondent No.6 under two registered Agreements for
Sale dated 4th March 2002. He has paid the major/substantial
portion of the consideration by obtaining loans from Standard
Chartered Bank and by mortgaging these flats. It is the case of the
Petitioner that the Respondent No.5 made an application for
development permission through Respondent No.6. The permission
for development was granted by Respondent Nos.1 to 3. The plans
were initially sanctioned for a building consisting of stilt plus seven
upper floors on 11th January 1992. The Commencement Certificate
was granted on 15th September 1992. It is stated that at the time of
inspection of Respondent No.3, it was noticed that the building was
constructed upto 24th floors and therefore a stop work notice under
Section 354 of the MMC Act, 1888 was issued on 2nd December
1992. Similarly, action under Section 53(1) of the MRTP Act was
also initiated on 24th October 2002. In response to these notices,
Respondent No.5 through an Architect applied for regularization of
the work as in his opinion the work was capable of being regularized.
9. It is the case of the Petitioner that in the meanwhile,
two Public Interest Litigations were filed in this Court and one of
them was PIL No. 379 of 2003. That was filed by one Rajendra
Thakkar. There was another PIL being Writ Petition No. 2822 of
2007 that was filed by Bhrastachar Nirmulan Sanghatana. Both PILs
were disposed of by a common judgment and order of this Court
dated 5th May 2004. The Division Bench issued certain directions
pursuant to which objections/ suggestions from affected persons
were submitted to the Municipal Commissioner. Accordingly, the
Petitioner and other flat purchasers made various submissions to
Respondent Nos.1 to 3 from time to time that included a written
submission dated 29th March 2007.
10. It is in pursuance of these directions that the
Respondent No.2 passed the order impugned in this Writ Petition
directing demolition of the floors above 7th floors within 60 days
from the date of this order. Resultantly, the flats which are agreed to
be sold by the Respondent No.5 to the Petitioner are directed to be
demolished. Those flats are on the 10th floor. Therefore, it is clear
that the Petitioner is an aggrieved and affected party.
11. This Writ Petition was placed before a Single Judge of
this Court in the Summer Vacation i.e. 25th May 2007. After hearing
the learned Senior Counsel appearing for the Petitioner, this Court
directed issuance of notice and further ordered all parties to
maintain status quo as of that date in so far as the 8th to 24th floors of
the said building.
12. When the matter appeared on 5th June 2007 before the
Division Bench, this Court directed filing of affidavit in reply and
rejoinder and production of original records. The status quo orders
were continued and the Respondents-developers were restrained
from selling their rights on the basis of the Transfer Development
Right (hereinafter referred to for short as "TDR").
13. The matter appeared on 29th June 2007 and the Court
noticed that the Municipal Corporation has not filed a complete
affidavit. The Municipal Commissioner was directed to file an
affidavit particularly dealing with the source of the power of
regularization, use of the said power and explaining how 24 storied
structure came up in this case, so also what action the Municipal
Commissioner proposes to take against the Officers incharge of the
area. In the meanwhile, this Court directed Respondent Nos.5 and 6
to file a list of their properties as well as projects which they were
developing in the city of Mumbai and the projects for which they
have submitted plans to the Corporation. The interim order was
directed to be continued and the builders in these cases were
restrained from selling, utilizing the TDR available to them or
loading it against the structure.
14. The matter appeared on 20th July 2007 along with other
Writ Petitions as it was stated that several Petitions involving more
or less identical questions are filed in this Court. Clubbing them all,
this Court directed filing of affidavits in all matters and thereafter
impleading Respondent No.7 in this Petition as well.
15. On 29th April 2008, the Court heard the arguments of
the Petitioners in this matter and thereafter directed production of
original files and more particularly sanctioned plans. Thereafter, the
matter was argued again. After the arguments of the Petitioner were
completed, the matter was adjourned on 20th June 2008 on which
date the Corporation argued and concluded its arguments. The other
parties did not get sufficient time on that day and it was brought to
our notice that their replies were also not filed . Hence, the Court
directed that replies should be filed or else their right to file replies
would be forfeited. Matters were adjourned to 10th July 2008.
16. It must be noticed that from April 2007 to July 2007,
this Bench was available. Later on, on account of the matters being
part-heard, they were retained by this Bench. As and when the
Bench could assemble, they have been heard. It is in these
circumstances, that the arguments have been spread over.
17. The impugned order proceeds on the basis that in the
afore-mentioned Public Interest Litigations, the Court directed that
tentative orders for regularization in 128 cases are not approved and
the Municipal Commissioner to reconsider them in accordance with
the directions issued. The directions were that the power and duty
to decide the question of retention/regularization of any
unauthorized development or grant of any modification/relaxation
by special permission, will not be delegated by the Municipal
Commissioner to any other officer. The Commissioner was to take
the opinion of the concerned Engineers but the final decision must be
of the Commissioner and he is obliged to record reasons, though in
brief. The next direction was while deciding the issue/question of
regularization/retention, the Municipal Commissioner will consider
all representations of affected parties including the issue of hardship
or loss caused to them. The Municipal Commissioner was directed to
hear the affected residents/proposed buyers and affected residents at
least in the immediate neighbourhood.
18. The next direction is that if any unauthorized
development is in violation of any dimensions pertaining to Floor
Space Index (hereinafter referred to for short as "FSI") (unless where
permitted by the Development control Regulation) as on the date of
decision, the same will not be regularized.
19. If on the date of the decision, the unauthorized
development is found to be in violation of any Rule, Regulation or
law, which violation cannot be waived/relaxed, then the said
development should not be regularized The Transferable
Development Right (TDR) will not be permitted to reduce the
amenities under the DC Regulations without adequately and fully
compensating the residents/purchasers of the regular part of the
structure for good reasons to be recorded in writing by the
Commissioner. The final order allowing retention must reflect
application of mind as regards "demonstrable hardship" for which
the retention of that unauthorized development have been
permitted. Similarly, the final order allowing retention must indicate
that the relaxation/concessions granted will not affect the health,
safety, fire safety, structural safety and public safety of the
inhabitants of the building and the neighbourhood. Where a plan of
structural modification involving a further burdening of a structure is
involved, the structural safety will be certified by a Structural
Engineer of Mumbai Municipal Corporation who will grant such
certificate after inspecting the premises. If there is any loss of a
facility, requirement or amenity suffered by any person/persons
having interest in the authorized part of any further unauthorized
development which is sought to be retained/regularized, then such
loss should be assessed at the market value of the concession granted
and must form an ingredient computing premium. The losses then
have to be computed by directions to add to the premium any
amount which may be reasonably required for putting up additional
infra-structure, if any, in or around the regularized structure.
20. Therefore the Respondent No.1 in order to comply with
these directions, issued public notices in local newspapers. The
public at large was informed that while considering the issue of
regularization of unauthorized construction of 154 buildings, this
Court issued the afore-mentioned directions. The list of the buildings
was made available in the office of the respective Wards of Mumbai
Municipal Corporation. Thereafter, the affected parties were
requested to put forth their representations, addressed to the
Municipal Commissioner, before a stipulated date. The list of 128
affected buildings was set out in the public notice. It is stated that
there was a corrigendum issued extending the date of filing
representation. It is stated by the Mumbai Municipal Corporation
that the present case is at Serial No.103 of the public notice. In
addition, general notices were pasted on the buildings under
reference as also on the adjoining buildings in the same lay out.
However, no objections were received from the flat purchasers or
occupants of the neighbouring buildings.
21. Thereafter, the Municipal Commissioner heard the
parties from time to time. It was pointed out to him that in this case,
the area of sub-plot `F' is 31753.66 sq.mtrs. The Commissioner was
concerned with an application made by Shri B.S. Barot for
regularization of Building No.7 situtate on plot bearing CTS Nos.178,
179, 262 to 263, 265 to 271, 273 to 282, 186 to 187, 138, 141, 143
to 146, 148, 156, 157, 159 to 161, 195 to 198, 172 (Part), 272
(Part), 203, 215 of Village Kandivali at Bundar Pakhadi Road,
Kandivali (West). It is observed by the Municipal Commissioner that
plans were approved and Commencement Certificate was granted
upto 7th floor. However, work was carried out upto 24th floor.
Therefore, the action was taken and Developer and the Architect
applied for regularization. It was stated on behalf of the Developer
that he had in good faith carried out the construction in anticipation
of the TDR and balance potential after approval of the plans and
with a view that the same could be regularized as per the past
practice of the Corporation. He has further contended that he sold
the flats in anticipation that the plans would be approved. The
purchasers of the flat have invested substantial part of their life
savings to acquire all these flats and if the same are demolished, the
flat purchasers would be put to tremendous loss, hardship and
mental trauma which cannot be compensated in monetary terms. He
argued that the additional construction will not come in the way of
any public project and that no such project is held up because of the
same. Therefore, if there is no regularization by charging
penalty/premium and/or fine, the flat purchasers will be rendered
homeless.
22. Several Officers of the Mumbai Municipal Corporation
remained present at the hearing with record and details. They are
referred to by the Municipal Commissioner. He also referred to the
fact that the Architect proposed to regularize 24 storied building and
five other buildings, in plot potential of other three buildings, in lieu
of TDR. The Architect and the Constituted Attorney of the owner
prayed that they would get the necessary clearance including No
Objection Certificate from the ULC. At the hearing, these persons
including the Advocates and representatives of flat purchasers and
occupants were present. The Commissioner refers to several aspects
of the development in the subsequent paragraphs.
23. In paragraph 16 of the order, the Municipal
Commissioner observed thus :
"14] On 13th April 2007 all parties remained
present with Officers. Developer requested not to
insist on high rise committee's NOC as it will take
some more time and agreed to give registered
undertaking to demolish the floor on his own if
NOC is denied, which could not be accepted and
the developer was asked to come for regularization
after reducing height of the building to 70 m.
Hearing was adjourned to 27th April, 2007.
15] On 27th April 2007 all parties and officers
remained present. Mr. Nilesh Vora, Mr. Arun
Gada, both the developers , Mr. Kirit Gada, Mrs.
Sunderben Vora the occupants also remained
present. The developer stated that the demolition
of 24th floor could not be taken up as police
protection was not granted for want of written
orders from Corporation. The Architect reiterated
the requests for giving more time for producing
NOCs and in the meantime to regularize the
buildings.
16] In case of this building plans were approved
for Ground + 4 floors of wing 'A' to 'D' and IOD
was issued on 5th December, 1990. Later, plans
were approved for wings 'A' to 'E' for stilt + 7
floors on 11th January 1992. Commencement
Certificate up to top of stilts was granted on 15th
September, 1992. Lastly plans were approved for
Stilt + 7 floors of one wing. Commencement
Certificate was not endorsed as per amended
plans. During routine inspection, work was found
completed up to 24th part floor. Hence Stop Work
notice under section 354A of MMC Act, 1888 was
issued on 2nd December, 1997 and action under
section 53(1) of MR & TP Act 1966 was initiated
on 24th October 2002. In response, Architect
applied for regularization. The proposal requires
relaxations in joint open spaces. The proposal
requires approval of High Rise Committee as
height of the building exceeds 70m. There are
elevations constructed which can not be
regularized free of FSI but can be permitted by
counting in FSI. Adequate TDR for the same is not
yet purchased. The stair case area is required to be
exempted from FSI by M.C. The registered
structural Engineer has certified the safety of
foundations and columns for Stilt + 24 upper
floors and C.F.O. Has also issued No Objections
for Stilt + 23 upper floors. In addition, Dy. City
Engineer of B.M.C. Has certified the stability and
checked the design & calculations for the
foundations and columns for stilt + 24 upper
floors."
24.
Based upon the above reproduced findings that he
passed the final order as under :
"ORDER
I have perused the file papers that were
produced before me by the concerned officer of
M.C.G.M. and have heard submission of the
developers, Architect, occupants & Dy. Ch.E.[B.P.]
W.S.
It is admitted fact that plans are not
approved for 8th to 24th part floor. The party has
already purchased some T.D.R. To regularize the
unauthorized construction but the same is not
deducted from DRCs. The documents are also not
valid. The quantum of TDR purchased is also not
adequate to regularize the work. As per the
directives of ULC Authorities, it was necessary to
obtain prior approval of Government for
utilization of TDR, which is not obtained in spite
of time granted. After considering the facts
presented to me by the officers of MCGM,
occupants and submission of the developer Shri
Jayesh Shah, I pass the following orders.
1. Party shall demolish floors of the building
above 7th floor within 60 days from the date of
this order.
2. Compound walls in between the buildings
shall be demolished within 30 days from the date
of this order.
Failing to comply above, I direct EE (BP)R wards
to pursue the action.
3. I approve the request to grant area covered
by staircase, lift, lift lobby area free of F.S.I. by
charging premium of Rs.15,54,800/- and that of
lift machine room, staircase room, top most
staircase, elevated water tank free of F.S.I.
Without charging premium as per provisions of
clause 35(2)(c) of D.C. Regulations, 1991 and as
per policy in force.
4. Under the provisions of sections 53(3) read
with section 44 of M.R. & T.P. Act 1966 and
having been convinced that there will be no
violation of F.S.I. in this case after demolition as
above, I pass the orders for regularization of the
work carried out beyond Commencement
Certificate from Stilt to 7th floor and that of
elevation features in this case by recovering the
penalty as per details in paragraph 5(iii) below.
5. In view of above, as per the paragraph
19(h) of Hon. High Court order, the three
ingredients of the premium are worked out and I
pass the following order.
i. There is no loss of facility as there is no
condonation / concession.
ii. I pass the order that an amount of Rs.
3,26,000/- shall be paid to M.C.G.M. Towards
infrastructure development.
iii. An amount of Rs.11,96,350/- which is an
enhanced fine for carrying out work beyond
approval.
The developer shall pay aforesaid amount
stated at Sr.No. 3 and 5 within 30 days from
receipt of this order failing which I direct E.E.
(B.P.) R wards to pursue the action by following
due process of law."
25. In the Petition, the Petitioner has naturally not disputed
these facts but contended that the directions to demolish have been
given because the necessary FSI/TDR has not been made available by
Respondent Nos.5 and 6. A proposal was given for the purpose of
making available the TDR. However, the Municipal Commissioner
has observed that adequate TDR for the same is not yet purchased.
The Petitioner argued that if adequate TDR would have been made
available by Respondent Nos.5 and 6, then the misfortune of
demolition of the building above 7th floor would not have arise at
all.
26. The Petitioner states that by his Advocate's letter dated
20th April 2007 the particulars of Development Registration
Certificate (DRC) numbers and the FSI which was available with
Respondent No.6 have been forwarded to Respondent No.2. The
Petitioner argued that atleast three DRCs being (i) SRA/637, (ii)
SRA/379 and (iii) SRA/245 dated 22nd September 2006, 27th April
2004 and 12th February 2003 from the total credited FSI 5620.00
sq.mtrs, deducting the FSI which is already utilized, namely, 2390.00
sq.mtrs, still as of today, to the best of knowledge of the Petitioner
3230.00 sq.mtrs. FSI is still available with Respondent No.4. He
states that Respondent No.6 has 22805 sq.mtrs. available in the form
of DRCs with him. Thus, when this FSI was already available, how
Respondent No.5 is not making the same available so that the
required deficiency is met in this case. If this deficiency is met, then
the entire building can be saved. Respondent No.5 could very well
utilize this FSI to save the disputed floors.
27.
Our attention is invited to a communication of the
Municipal Corporation in response to the query under Right to
Information Act. Therein, it is supposedly stated that FSI to a large
extent is sold in the open market by Respondent No.6. This
substantial FSI was available with Respondent Nos.5 and 6 and that
could have been utilized for the purpose of regularizing the disputed
floors. The attention of the Municipal Commissioner was invited to
all these aspects but the same have not been adverted to by the
Municipal Commissioner. Despite these communications being
forwarded and the facts incorporated therein duly mentioned in the
written representation dated 20th April 2007, Respondent Nos.1 and
2 did not take any steps and instead issued the impugned directions.
The Petitioner states that he had filed another representation
objecting to the manner in which the hearing was conducted by
Respondent No.2.
28. The grievance is that the Respondent No.2 failed to take
into consideration the detailed representation of the Petitioner as
referred in the Writ Petition. The Petitioner has submitted that
there is a great hardship caused to him and to similarly situated flat
purchasers because of the inaction of the Municipal Commissioner.
The Corporation ought to have prevented Respondent Nos.5 and 6
from selling the FSI in open market and/or protecting that FSI so
that it could have been utilized for the regularization of the subject
project. It is also stated in the Petition that Respondent No.5 was
black listed by the State Government in pursuance of the
Government Resolution dated 9th March 2005 for non-compliance of
various permissions obtained under the Urban Land (Ceiling and
Regulation) Act, 1976. In such circumstances being aggrieved by the
order, the instant Petition has been moved by the Petitioner-flat
purchaser. It is his case that even the Structural Engineer had
certified that the structure in this case is safe. The foundation and
columns are meeting the safety requirements including that of the
Fire Department. The petitioner therefore prays for a declaration
that the order under challenge is illegal, mala fide and should be
quashed and set aside and the Building No.7, Gaurav Gagan, Gaurav
Garden Complex, Kandivali (West) be held to be a regular,
authorized construction not requiring any demolition, if compliances,
as prayed, are made by Respondent Nos.5 and 6.
29. In the affidavit filed by the Municipal Corporation, with
which we were not satisfied, the order of demolition has been
justified. Further, it is pointed out that stop-work notice had already
been issued for the construction at site. The Architect submitted
documents proposing to amalgamate the adjoining plots to
regularize the building. His proposal was for amalgamating the
adjoining plots in lieu of additional FSI generated and after
amalgamation of these plots for FSI benefit of the road and set back
and proposed TDR. The Architect submitted documents for
deducting TDR and therefore the lay out was amended to
amalgamate the plots. However, the Corporation says that it was
necessary to revalidate the documents submitted for utilization of
TDR and to purchase additional TDR. It was also necessary to get
clearance of the ULC authority for utilization of the TDR as per the
directives received from the authority. Further, clearance from High
Rise Committee for regularization in cases where the height of the
building exceeds 70 meters was also not obtained by the Developer.
Even the Petitioner did not produce the documents demonstrating
clearance by the ULC authority for utilization of TDR. It was the
duty of the Developer to demolish the unauthorized structure within
the open space of the building and further demolish the temple,
compound walls unauthorizedly constructed for sub-dividing the
plots. The Corporation gave opportunity to the Developer to produce
NOC from High Rise Committee and NOC from ULC authorities. The
specific complaint of the Corporation is that there are elevations
constructed which could not be regularized free of FSI but can be
permitted by counting in FSI. The computation of the Developer for
deducting the TDR admeasuring 3547.05 sq.mtrs. is not adequate
inasmuch as the TDR required for regularization of the unauthorized
building is 5635.85 sq.mtrs. thereby it falls short by 2085.35 sq.mtrs.
It is in these circumstances that the Corporation denies that the order
is bad in law or violative of principles of natural justice leave alone
mala fide. This is the affidavit filed on 16th June 2007.
30. In the affidavit filed by the Constituted Attorney of
Respondent No.5 in reply, it is stated that against the order passed
by the Municipal Commissioner, the remedy of the Petitioner is to
file an appeal under Section 47 read with Section 56(2) of the MRTP
Act. The Petitioner has not availed of this remedy. Further, the
Respondent No.5 has filed the appeal challenging the order before
the State Government and had applied for stay of the impugned
order. The proceedings, namely, the application for stay and the
appeal are pending.
31. It is the case of the Respondent No.5 that by removal of
one floor i.e. 24th floor of the building and besides the removal of
elevation features illegally constructed by co-Developer (Respondent
No.7) the imbalance of FSI of the entire building can be cured and
the building is capable of being regularized The elevation features
are constructed from 18th floor onwards and therefore the
Petitioner's flat situated on 10th floor is not affected. Respondent No.
5 is contemplating removal and demolition of 24th floor besides the
elevated illegal construction from 18th floor onwards. That is an
aspect mentioned in the letter dated 22nd May 2005 addressed to
M/s.Nova Nirman Nigam-Respondent No.7. Thus, it is accused by
Respondent No.5 that the Petitioner has personal and private
grievance against Respondent Nos.5 and 6, for which he is required
to file a Suit. The Petition proceeds on the wrong premise that
necessary details have not been supplied by Respondent Nos.5 and 6
to the parties. Instead, in paragraph 8 it is stated that the building is
a part of a big lay out/project of approximately 15 buildings.
Respondent No.5 owns or has acquired development rights in respect
of large property. The lay out was sanctioned by Respondent No.3
on 3rd July 1995. The scheme was progressing in a phasewise
manner. During the course of the development, Respondent No.5
had available FSI of 1,29,000 sq.ft. from CTS numbers mentioned in
paragraph 8(b) of the affidavit affirmed on 26th June 2007.
32. It is stated that in or around 2001, one Arun Damji Gada
and Nilesh Vora approached Respondent No.5 with a request to
grant them development rights in respect of the 1,29,000 sq.ft. of
FSI. The negotiations were held and ultimately development rights
were granted by a document dated 25th March 2001 executed
between Respondent No.5 and the said Arun Damji Gada whose
proprietary concern is M/s.Nova Nirman Nigam. A copy of this
agreement is annexed as Exhibit `1' to the affidavit. In response to
this agreement, M/s.Nova Nirman Nigam commenced construction
of the building Gaurav Gagan and have proceeded to complete the
same without waiting for any approvals and sanctions from MMC.
33. In paragraph 8(e) of the affidavit of Respondent No.5
affirmed on the above-mentioned date, this is what is stated :-
"8. The true and correct facts are either
suppressed and/or distorted by the Petitioner are
as follows:-
(a) ...........
(b) ...........
(c) ...........
(d) ...........
(e) The said M/s. Nova Nirman Nigam inter alia
committed following illegalities in the said
building "Gaurav Gagan":-
(i) though plans of the building were approved
only up to stilt + 7 upper floors, they executed
work of the construction up to 24th floor.
(ii) Executed work of the construction above 7th
floors without availability of FSI and without TDR
having been provided for the same.
(iii) Executed work of the construction of the
building up to 24th floors though AOP was only up
to 20 floors."
It was, therefore, necessary to submit proposals for regularization
which came to be submitted and reference is made to the several
proposals and letters of Architect in that behalf. It is stated that
Respondent Nos.5 and 6 were ready and willing to demolish the 24th
floor so that the height of the building comes within the required
limits. However, M/s.Nova Nirman Nigam were obstructing such
demolition. Therefore, the agreement between them has been
terminated vide letter dated 9th March 2007. Even after termination,
M/s.Nova Nirman Nigam are not allowing demolition of 24th floor.
34. Respondent No.5, therefore, holds the Corporation and
the Municipal Commissioner responsible for not allowing the plot
potential to be utilized. If that had been allowed to be utilized, there
was no question of submission of any TDR. The observations of the
Municipal Commissioner to the contrary are illegal. There is enough
FSI for regularization. In fact, this building is regularized on the
basis of plot potential and there was no question of submitting any
TDR and in any event when the appeal is pending, these issues can
be gone into by the appellate authority, namely, the State
Government. For all these reasons, Respondent Nos.5 and 6 pray
that the Petition be dismissed.
35.
It is after this affidavit that we directed impleadment of
Respondent No.7.
36. The Petitioner filed a rejoinder affidavit reiterating the
contents of the Writ Petition and also pointing out that Respondent
Nos.5 and 6 are accepting or having TDR/FSI and/or able to
generate TDR/FSI through several properties, details of which are
mentioned in paragraphs 5 and 6 of the affidavit affirmed on 11th
June 2007.
37. In the affidavit in rejoinder to the reply filed by
Respondent No.2, the Petitioner contended that the construction can
be regularized and the modalities for the same have been suggested.
At the same time it is urged that Respondent No.6 does not want to
purchase TDR or utilize its own TDR as the same is presently valued
not less than Rs.2200/- per sq.ft. Thus, in aggregate the cost of
regularization and purchase of TDR is higher than the price at which
the flats have been sold. The present situation has arisen because
Respondent No.6 did not purchase the TDR at the right time.
However, the TDR documents are on file which ought to have been
considered by the Municipal Commissioner. The Petitioner has
placed details of this availability in this affidavit in rejoinder dated
26th June 2007. The Petitioner also rejoined to the affidavit of
Respondent Nos.5 and 6 by pointing out that complete details are
not being set out in the affidavits of Respondent Nos.5 and 6. There
is suppression. Further, the Writ Petition raises several contentious
issues including the power of the authorities and, therefore, there is
no question of the same not being maintainable. The appellate
remedy is not equally efficacious.
38. In the affidavit that we directed the Corporation to file
on the point of the source of the power to regularize, the Municipal
Commissioner has stated as under :
"3. I say that the exercise of power for
regularization should ordinarily be in conformity
with the Development Regulations and Building
Bye-Laws and Planning Standard except in case of
hardship where the Municipal Commissioner has
been empowered under Rule 64(b) to relax the
rigour of the provisions of certain D.C. Regulations
in conformity with the observations and guidelines
spelt out by the aforesaid judgment passed by
Division Bench of this Hon'ble Court.
4. D.C. Regulation 34 provides that in certain
circumstances, the development of potential of
plot of land may be separated from itself and may
be made available to owner of the land in the
form of Transfer of Development Rights (T.D.R.).
Those rights may be made available and be subject
to regularization in Appendix VII-A of the D.C.
Regulation. Under Appendix VII-A regulates grant
of T.D.R. To Owners/Developers and provides
conditions for grant of such rights.
5. Under clause 13 of Appendix-VII-B, it is
provided that any T.D.R. Residential plot shall not
be eligible for more than 100% additional F.S.I.
in whichever combination T.D.R. received
provided 20% of F.S.I. shall be kept mandatorily
for use of T.D.R. generated as surplus from Slum
Rehabilitation Scheme, though the source of
T.D.R. could be from Road/Reservation, Slum
improvements, Reconstructions of cess buildings
or from Heritage Building."
39. The Municipal Commissioner has pointed out the
scheme under the Act and the DC Rules for obtaining and utilizing
the TDR. He states that in the present case even the original
construction of stilt plus seven upper floors was regularized in
accordance with the policy. That was a construction made in
accordance with the sanctioned plan but without obtaining the
Commencement Certificate. The Commissioner points out that
whatever could be regularized under the permissible norms has been
done, but the excess construction of 8th to 24th floors could not have
been regularized The Municipal Commissioner's affidavit, if read in
isolation and more particularly going by contents of paragraph 12
seems to suggest, that even this construction of 8th to 24th floors will
not put an extra load on the infra-structure such as sewage, water
supply, etc. since the designed infrastructure provided in the locality
is based on the permissible tenement density per hectare. However,
upon a reading of the entire affidavit, it is clear that he is supporting
his reasoning in the impugned order. He has also set out the details
of the charge-sheet issued pursuant to the preliminary inquiry held
by the Deputy Chief Engineer (Road) and has stated that 11 Officers
have been indicted. They were working in the Building Proposal
Department. A full fledged departmental inquiry was conducted by
the Chief Engineer (Vigilance) against them and 4 Officers were
found guilty and they were given various punishments against which
their appeals are pending. In response to the order passed by this
Court on 29th June 2007 in this Petition, Respondent Nos.5 and 6
have submitted a list of projects for which plans have been submitted
to the Corporation. The list is submitted on 12th July 2007. The list
shows 16 building proposals, out of which 13 have been completed
and two are upto plinth level and one building is Gaurav Gagan
which is subject matter of this Petition.
40. The Respondent No.5 filed a further affidavit setting out
details regarding additional FSI consumed in the entire lay out.
Respondent No.5 has submitted excess TDR of 184.62 sq. mtrs. in
the entire lay out. The Writ Petition is nothing but a battle initiated
by Arun Damji Gada and Nilesh Vora to settle personal scores. It is
at the instance of the business rivals of Respondent No.5 that the
Petitioner has been set up and that is how he has filed the Petition.
The Respondent Nos.5 and 6 seem to suggest that the details in the
affidavit of the Corporation are not accurate and all allegations made
with regard to other projects are false and incorrect.
41. The Corporation has filed a further affidavit with regard
to the details of the projects of Respondent Nos.5 and 6. That
affidavit is filed on 1st October 2007. The Petitioner deals with all
these affidavits. He points out as to how NOC from the High Rise
Committee is not necessary. In the affidavit, the Petitioner acuses
the Developer and the authorities of pre-planning the demolition,
although the construction is capable of being regularized
42. Such affidavits continued to be filed until we issued
final directions. The parties also filed compilation of documents.
43. There was a Chamber Summons by two persons seeking
intervention. They stated that they are flat purchasers of 18th and 19th
floors of the subject building. However, they did not obtain any
orders in furtherance of this Chamber Summons.
44. Another Chamber Summons being Chamber Summons
No.389 of 2008 was moved by one more intervenor Lalita Vinod
Avlani. She states that she is a prospective purchaser of Flat No.402,
4th floor and she sought to intervene in the proceedings, but even her
Chamber Summons does not seem to have been pursued further.
45. Notice of Motion No.444 of 2007 was moved by the
Petitioner praying for a direction to Respondent Nos.1 to 3 to
disclose the details with respect of certain lay out in the Village
Kandivali. This Notice of Motion was filed on 29th August 2007.
However, since we issued directions and called for detailed affidavit,
this Notice of Motion was not pursued.
II) WRIT PETITION NO. 3123 OF 2006
46. Writ Petition No.3123 of 2006 is filed by
M/s.Goolamally Hasanjee, a Partnership firm which owns a plot of
land along with a building at Mandvi within the limits of "B" Ward of
the Municipal Corporation of Greater Bombay. The building is
known as "Patel Building". It consists of ground plus three floors
including mezzanine floor. The premises/building is tenanted.
47. The Petitioners in this Petition are challenging an order
dated 8th September 2006 passed by the Municipal Commissioner
directing them to pay regularization penalty at the rate of 1.5 times
more than what is prescribed under the law. They are thus directed
to pay Rs.46,99,335/- premium towards condoning deficiency in
open space of Rs.4,46,700/- and costs incurred for demolition at Rs.
6,00,705/-. The Petitioners state that they had applied for
regularization of mezzanine floor in accordance with the policy
Circular dated 8th August 2005. The regularization was applied and
sought for after demolition of 50% of the mezzanine floor area. The
Petitioners have been directed by this order to pay the afore-
mentioned sums within one month failing which the Corporation
threatened to demolish the structure of ground plus mezzanine plus
one to three upper floors. It is the case of the Petitioners that this
order is totally illegal and violates the mandate of Article 14 of the
Constitution of India as well.
48. The Petitioners' case is that this building was
constructed prior to 1940. It was a cessed building classified as
Category "A" under the Maharashtra Housing and Area Development
Act, 1976. The building was in dilapidated condition and required
an urgent repairs. A notice under Section 354 of the MMC Act was
issued on 21st April 1992 directing the Petitioners to undertake
repairs pursuant to which an application seeking repair permission
was sought and granted. However, there was an unauthorized
construction of building of the higher floors i.e. 4, 5 and 6 on the
plot of land. In view of the dispute, the Corporation issued notice
under Section 351 of the MMC Act and thereupon carried out
demolition. Since the entire building was demolished, it was
reconstructed and not repaired. The case of the Corporation is that
the entire structure is illegal and unlawful and liable to be
demolished. Therefore, the notice under Section 351 was issued.
There were Suits filed in the City Civil Court and from the interim
orders therein matters were carried to this Court and this Court
directed that if any application for regularization is made, the same
should be dealt with in accordance with law. Therefore, the
demolition was stayed. Thereafter, the proposal for regularization of
entire building was submitted but it appears that it was not
acceptable and hence it was rejected on the ground that there is no
balance FSI in respect of the building. Against the rejection orders,
matters were carried in appeal to the State Government, but during
the pendency of the appeal, the three upper floors were demolished
in May 2001. Therefore, the structure remained ground plus three
floors and the matter proceeded on the basis that the remaining
construction could be regularized by levying penalty. However, even
that stand of the Petitioners was not acceptable to the Corporation
and once again demolition of the third floor was directed but which
action came to be challenged by way of a Writ Petition in this Court
which Writ Petition was disposed of by a final order remanding the
matter to the Municipal Commissioner. The Municipal
Commissioner thereafter passed the impugned order.
49.
This order has been challenged on the ground that the
Circular does not permit charge of such exhorbitant penalty. The
double the rate of penalty which is provided in the Circular dated 2 nd
February 2002 is not applicable to the Petitioners' case. The
regularization proposal was forwarded much prior to this date.
Thereafter, the penalty prevailing as on 24th January 2001 ought to
have been levied. There is no basis for levying penalty as per the
Circular of 2002. Even otherwise and in the garb of any policy, it is
not open to the Corporation to levy penalty as there is a proposal to
protect mezzanine floor. Thus, the challenge is to the levy of the
penalty for regularization.
50. This matter was tagged together with Writ Petition No.
1077 of 2007 as it involved the question of power to regularize the
unauthorized construction and/or retention of the same. In the
affidavit in reply filed in this Petition, the Corporation has justified
its stand and in paragraphs 11 and 12, it states thus :-
"11. I say that with regard to the levy of penalty
for regularization, the Municipal Commissioner
has decided the penalty amount to be charged at
1.5 times the rate of regularization at that time
and not at double the rate of regularization. I say
that the Municipal Commissioner has used his
discretionary power under D.C.R. 64 of D.C.
Regulations and have decided the said penalty for
regularization of unauthorized work. I say that
the Municipal Commissioner has rightly levied the
penalty of Rs.46,99,335/- at 1.5 times for
regularization of unauthorized work of ground
plus 3 floors. I say that the petitioner has agreed
to pay Rs.4,46,700/- for condonation of
deficiency of open space. I say that as
unauthorized floors of 4th to 6th floors are
demolished by the Corporation and which were
constructed unauthorizedly, the Corporation has
empowered to recover the cost of demolition
under the provisions of M.M.C. Act and therefore,
Rs.6,06,705/- are rightly charged as demolition
charges.
12. I say that it has been seen from the records
that mezzanine floor was assessed in the year
1994-95, 1995-96, 1996-97. I say that U.D.
Department in Govt. of Maharashtra has issued
notification under Section 37(2) of the M.R.T.P.
Act, 1966 dtd. 31.5.2005 under No.
4397/1287/CR-89/97/U.D.-11 modifying the text
of the D.C. Regulations No. 38 (b)(1) and
accordingly Corporation has issued policy circular
under No. CHE/Gen/283/111/DPC/Gen dtd.
8.8.2005 for grant of permission for regularization
of loft/mezzanine floor constructed prior to
15.8.1997. I say that in the instant case as the
existence of mezzanine floor prior to 15.8.1997 is
established, the said mezzanine floor can be
considered for regularization as per the policy of
these respondents by removing/demolishing 50%
of the mezzanine floor are as per requirement of
Reg.38(b)(1) of D.C.R. 1991. I say that the
petitioner can get the mezzanine floor regularized
by making application to the Competent Authority
in required manner, through Licensed Architect,
as per provisions, forms and conditions of
guidelines, circular dtd. 8.8.2005, issued by the
M.C.G.M. I say that Eng (B.P.) City has rightly
issued demand letter dt. 26.10.06."
51. The Petitioners filed a rejoinder to deal with these
statements by observing that the premises were in existence prior to
1962 and, therefore, were tolerable. They could not have been
demolished. The approval to the plan for repairs and renovation for
ground plus three upper floors came to be duly sanctioned. This
ground plus three upper floors were already in existence and the FSI
was available. There was no illegality in this construction. The three
additional floors have already been demolished. Therefore, the only
question was left of reasonable penalty and fine and not applying the
Circulars with their rigour and strictness which are in any event
inapplicable. Assuming that they are applicable, they are wholly
arbitrary in so far as they permit levy of such penalty and, therefore,
required to be struck down.
III) WRIT PETITION NO. 1124 OF 2007
52. This Writ Petition is filed by the Petitioner challenging
the inaction of the Corporation in not demolishing the unauthorized
and illegal structure of Dhanesha Chawl despite communicating to
the Petitioner that no permission is granted for upper floors of Room
Nos.5, 6 and 7 of this Chawl. The Petitioner, therefore, prays for a
Writ of Mandamus directing the Respondent No.1 to demolish the
unauthorized and illegal construction (upper floors) and extension of
100 sq.ft. carried out by the deceased husband of Respondent No.2
and Respondent No.3 in Dhanesha Chawl, 144, Daftary Road, Malad
(E), Mumbai 400 097.
53.
The Corporation has filed an affidavit stating that the
unauthorized construction has been demolished on 26th June 2006
and the Corporation produced photographs evidencing the same.
54. In the light of this affidavit and the Petitioner not
coming forward to further press the Petition, this Writ Petition is
dismissed as infructuous.
IV. WRIT PETITION NO. 1130 OF 2007
55. This Writ Petition is filed by the Petitioner praying for a
Mandamus to demolish entire illegal and unauthorized construction
(360 huts/shops) carried on by Respondent Nos.3 and 4 in this
Petition on Survey No. 239 (Part), CTS No. 70 situated at Kurar
Village, Malad (East), Mumbai 400097. On this Petition, notice was
directed to be issued on 27th July 2007.
56. In response to the aforesaid notice, the Corporation has
filed an affidavit stating that the Corporation has taken action
against the unauthorized structures under Section 351 of the MMC
Act. The demolition action in respect of unauthorized structures has
been referred to in paragraph 7 of the affidavit. This being a private
property, according to the Respondents, he should have taken steps
to protect the property after demolition.
57. The prayer in the Writ Petition is that the unauthorized
construction be removed. The private Respondent has filed an
affidavit in reply pointing out that the Petition is an abuse of process
of law inasmuch as the Petitioner has no direct or remote interest.
The Petitioner and his predecessor are indulging in acts of
unauthorized encroachment and illegal structures posing themselves
to be the owners of the land. They had filed Suit but the land is
claimed by the Adivasis as well as by the Forest Department/State
Government. The interim application in the Suit has been rejected.
There are directions to clear all encroachments in a Public Interest
Litigation. It is stated that the structures unauthorizedly and illegally
constructed by the Petitioner and his family members came to be
demolished.
58. The Petitioner's Advocate has not pursued the matter
after filing of this affidavit in reply. There are no rejoinder affidavits
filed by the Petitioner dealing with the statements made by the
Corporation on affidavit so also dealing with the affidavit of the
private Respondent. We are of the opinion that this Writ Petition
raises a completely private dispute and has no connection with the
issue of regularization/retention of unauthorized structures. We
dispose of this Writ Petition by observing that the Petitioner is free to
adopt such other proceedings as are permissible in law for redressal
of the grievances relating to his right in the said immovable property.
V. WRIT PETITION NO. 1190 OF 2007
59. This Writ Petition is filed praying for action against the
unauthorized structure made by Respondent No.1 in the property
involved in this Petition.
60. The Petitioner's Advocate was specifically called upon by
this Court to satisfy as to how the Petition would be maintainable in
the light of the pendency of a Civil Suit as disclosed by the Petitioner
himself in paragraph 13 of the Petition. In any event, if the
Petitioner himself is stating that there is no protection against the
unauthorized construction, then all that can be directed is that the
Respondent No.2 shall treat the Petition as a representation of the
Petitioner and deal with it in accordance with law. If Respondent
No.2 has not taken any action against the alleged unauthorized
construction, then it should take the same as expeditiously as
possible. The Writ Petition is disposed of accordingly.
VI.
WRIT PETITION (LODGING) NO.1280 OF 2007
61. By this Writ Petition, the Petitioners pray that the notice
dated 12th June 2007 be quashed and set aside.
62. It is the case of the Petitioners that an agreement for
sale was executed between Respondent No.4 and Petitioner Nos.2 to
10 which is duly registered in respect of the flats of the Petitioners
situate on 10th to 14th floors of Tulsi Tower, Tulsi Tower Co-operative
Housing Society Ltd., CTS No.5262A, O.P. 137, F.P. 188, 51 st Road,
TPS III, Borivali (West), Mumbai 400092 and the Respondent No.4
has put the flat purchasers in possession of the flats. The Petitioner
No.1 is a registered Co-operative Society of such flat purchasers. The
brochure was supplied by Respondent No.4 showing location and
basic amenities to be provided. However, there were certain
irregularities in the construction and the Corporation brought that to
the notice of the Developer who through an Architect forwarded a
proposal for regularization of "A" wing from 10th to 14th floors and of
"B" wing first part floor. The Corporation was convinced that there
was no violation of FSI but while regularizing the construction
imposed penalty upon the Developers. It issued notice for demolition
action as the builder/developer failed to comply with the order of
regularization on payment of premium/fine therein.
63.
The Corporation has filed an affidavit and has stated
that the Architect or the Developer has represented to the Municipal
Commissioner for grant of relaxation in time period for payment.
The Municipal Commissioner has directed the exact payment with
interest to be paid without delay. The Developer has made
application along with Demand Draft with interest on 11th July 2007.
It is accepted but not deposited in the account of the Municipal
Corporation of Greater Bombay. It is stated in the affidavit that the
amount will be deposited till the utilization of of TDR is received by
the Executive Engineer, Building Proposal (W.S.) "R" office. It is
kept in custody. They have justified the issuance of the notice in
respect of the construction.
64. The Petitioners have filed a rejoinder and have
highlighted the grievances and the consequences of the Developer
not complying with the conditions imposed on him.
65. It appears that one M/s Jain & Jain, Applicants, filed a
Chamber Summons being Chamber Summons No. 314 of 2007
praying that they should be made party Respondents to the Writ
Petition as they are the original owners of the property. They have
referred to some Suit filed against the Developer-Respondent No.4 to
the Writ Petition, being Suit No. 1781 of 1993 and have stated that
the Suit is pending for hearing and final disposal. However, there is
an interim relief therein. They state that they have deposited a sum
of Rs.49,05,000/- in this Court as a condition for the injunction
which amount is still lying in this Court. The amount is invested. It
stated that Respondent No.4 has committed a fraud on the flat
purchasers and, therefore, they should be impleaded as party
Respondents.
VII. WRIT PETITION NO. 1428 OF 2007
66. In this Writ Petition, the Petitioners claim to be Doctors
by profession. They are purchasers of flats in a building called
"Divya Stuti". They alleged that the building is constructed by
Respondent Nos.10 to 11. However, the authorities Respondent Nos.
1 to 6 had issued certain directions, which permission having not
been complied with, Occupancy Certificate is not granted to this
building. Consequently, the Petitioners who are desirous of
establishing medical clinic are unable to do so. They have stated that
they have purchased flat Nos.1 and 2 on the ground floor of "B"
Wing of Divya Stuti building by two registered documents dated 23 rd
August 2002. These agreements were entered into by and between
the Petitioners and Respondent Nos.10 and 11. The Petitioners
purchased the flats for the purposes of starting Nursing Home.
Therefore they claimed a Writ of Mandamus directing Respondent
Nos.1 to 6 to take stringent action against Respondent Nos.10 and 11
on account of their failure to comply with the directions issued by
the ULC authorities. At the same time they prayed that these
Respondent Nos.1 to 6 should not take any action against the flat
purchasers. They also should not take any action which will
adversely affect the flat purchasers.
67. It is stated that the Developers have failed to comply
primarily with the condition imposed of surrendering certain
percentage of tenements to the State Government for transfer thereof
in favour of Government nominees. Their failure to surrender these
tenements, although undertaken has resulted in the building not
getting the necessary Occupation Certificate. Although, the affidavits
filed by parties indicate that the condition is now altered and instead
of surrendering the flats, the State Government has directed the
Respondent Nos.10 and 11 to pay compensation/monies in lieu
thereof. The amounts are paid only after the filing of this Writ
Petition. However, there are other compliances which have to be
made and unless the compliances are done, the Occupation
Certificate will not be granted. We will advert to the further details
when we deal with the contentions of parties in this Writ Petition.
VIII. WRIT PETITION (LODGING) NO.1467 OF 2007
68. This Writ Petition is by a Petitioner who seeks a
direction to Respondent No.1 to demolish illegal and unauthorized
6th and 7th floors constructed on property involved in the Petition.
When the matter was placed before this Court on 2nd August 2007,
Respondent No.2 made a statement that they are not planning to
raise any construction in the basement of the building as of today.
69. The Petitioner filed an additional affidavit on 9th August
2007 and pointed out certain more details.
70. Respondent No.2 has filed an affidavit and stated that
the nature of construction carried out by the Respondent is of
approvable nature and can be permitted to be regularized with
concession. The Respondents have purchased the requisite TDR for
loading on the building for regularization of the structure. The
proposals for regularization forwarded in August 2007 are pending
and it is the Competent Authority which will decide it. Therefore,
during the pendency of these proposals, no demolition can be carried
out.
71. The Petitioner in this Petition claims to be the owner of
Flat No.201, 2nd Floor of the building more particularly described in
paragraph 1 of the Writ Petition which is stated to be constructed
by Respondent No.2. Respondent Nos.4 to 8 are the occupants
of flats on 6th and 7th floors, which floors have been illegally and
unauthorizedly constructed in connivance of the authorities.
72. The Petitioner has pointed out that a Suit was filed by
the Respondent No.2. in respect of these very floors in the City Civil
Court at Bombay being City Civil Court Stamp No.45 of 2004. The
Suit was filed by the Respondent No.2 against the Municipal
Corporation and others. There was an affidavit filed by the Bombay
Municipal Corporation, based upon which the City Civil Court
refused ad-interim reliefs to the Respondent No.2. The Petitioner
has referred to several queries which were made under the Right to
Information Act by the residents. He has also referred to one of the
letters wherein police assistance was sought for carrying out the
demolition. In these circumstances, this is a clear case of an
unauthorized and wholly illegal construction. In these
circumstances, he prays that action in furtherance of the notices
under Section 53(1) of the MRTP Act be taken.
73.
As has been pointed out above, the Corporation has not
filed any affidavit in this Writ Petition.
IX. PUBLIC INTEREST LITIGATION NO.100 OF 2008
74. Another matter which is listed in this group is Public
Interest Litigation No. 100 of 2008. The prayers in this Petition and
more particularly prayers (a) and (b) read as under :-
"(a) That this Hon'ble Court be pleased to issue
of Writ of Mandamus or Writ in the nature
of Mandamus or any other appropriate
Writ, order or direction under Article 226
of the Constitution of India that this
Hon'ble Court may deem fit and proper to
direct Respondent No.8 to hand over the
said plot bearing CTS No.15-F, 15-I and 15-
G or the Respondent No.3 be directed to
acquire if the Respondent No.8 fail to
handover CTS No.15-F (which is reserved
for Municipal Primary School), CTS No.15-I
(reserved for Play Ground) and CTS No.15-
G (reserved from Recreation Ground) in
the given layout to Respondent No. within
such time as this Hon'ble Court deemed fit
to pass and the Respondent No.1 be further
directed to construct a Municipal Primary
School on the said plot No.15 F for the
benefit of the students in the area;
(b) That this Hon'ble Court be pleased to issue
of Writ of Mandamus or Writ in the nature
of Mandamus or any other appropriate
Writ, order or direction under Article 226
of the Constitution of India that this
Hon'ble Court may deem fit and proper to
direct Respondent No.1 to 7 to initiate and
complete acquisition procedure to acquire
the said plot bearing (i) CTS No.15-F
(Municipal Primary School) as per MCGM
letters dated 04.11.2006 & 14.12.2006, (ii)
CTS No. 15-I (Play Ground) and (iii) CTS
No.15-G (Recreation Ground) in the given
layout within such time as this Hon'ble
Court deemed fit to pass;"
75. On perusal of the Petition, both sides agree that this
Petition being a Public Interest Litigation can be dealt with
separately as the issue involved is not common to the other matters
in this group. It is, therefore, directed that this Public Interest
Litigation be placed before the appropriate Bench.
X. WRIT PETITION NO.1572 OF 2009
76. The prayer in this Writ Petition is to direct Respondent
No.1 State to forthwith register an Agreement for Sale of a flat.
77. It is stated that Respondent No.3 in this Petition
constructed a building known as "Maharaja Retreat". The
construction is stated to be in accordance with the plans approved by
the Corporation. The Respondent No.3 sold a flat in question to
Respondent No.2 under the registered Agreement for Sale dated 26th
June 2007. The Petitioners in turn have purchased this flat from
Respondent No.2. However, the document has not been registered.
It is stated that the document is not registered on account of a
communication dated 28th November 2008. In pursuance of that
communication, the Sub-Registrar, Goregaon, Mumbai has informed
the Petitioners in this Petition that on account of the direction of this
Court to maintain status quo passed in Writ Petition No.1428 of
2007, the Additional Collector and Competent Authority, ULC by
letter dated 19th July 2008 informed the Sub-Registrar that CTS No.
620, Village Malad (Goregaon) is covered by the order of the status
quo and, therefore the Sub-Registrar cannot register any document
in respect of this property until further orders of this Court. It is in
such circumstances that the Writ Petition was directed to be listed
along with Writ Petition No.1428 of 2007.
XI. WRIT PETITION NO. 1379 OF 2008 (APPELLATE SIDE)
78. This Writ Petition filed on the Appellate Side of this
Court prays for a Writ of Mandamus or any other writ, order or
direction directing Respondent Nos.1 to 6 to blacklist the Respondent
No.7 and his group concerns for all purposes for construction or sell
or utilize of TDR, FSI.
79. This prayer is sought on the basis that Petitioner No.1 is
a flat purchaser of building No.7 and Petitioner No.2 is purchase of a
flat in building No.7A constructed in layout belonging to the
Respondent No.7. It is stated that Respondent No.1 is the State
having the control over Respondent Nos.1 to 7. It is stated that
Respondent No.2 is the unit of the MHADA and is the authority
functioning under the MHADA Act, 1976. Respondent No.4 is the
Additional Collector and Competent Authority functioning under the
Urban Land Ceiling Act, 1976. Respondent Nos.3 and 6 are the
Municipal Corporations of Mira Bhayander and Greater Mumbai
respectively whereas Respondent No.4 is the Slum Rehabilitation
Authority.
80. The Respondent No.7 is a Developer and Builder and
has carried out construction within the Municipal limits of Mira
Bhayander Municipal Corporation. It is stated that the Petitioner had
recently been informed that Respondent Nos.1 and 2 have received
proposals in respect of several lands for developing them in joint
venture with private Developers. Further, he has learnt that
Respondent Nos.3 and 4 decided to allot prime Government land
bearing Survey No. 150(Pt), 151(Pt) and 226 to 230, Mira Road.
This land is allotted at a throw away price to Respondent No.7. It is
stated that the track record of Respondent No.7 is not good and he
has been accused of carrying out several unauthorized and illegal
constructions. It is then alleged that the letters have been addressed
complaining about these acts of the Respondent No.7 but no
response has been given by the authorities. The attention of the
authorities was invited to the pending proceedings in this Court
including Writ Petition No.1077 of 2007 and Writ Petition No.1428
of 2007. It is urged that these orders deserve to be extended to the
entire State and more particularly to the prejudice of Respondent no.
7. It is stated that the Respondent No.3 communicated to the
Petitioners that Occupation Certificate of several buildings of
Respondent No.7 is still pending.
81. In paragraph 11(i) it is alleged as under :-
"11. The Petitioners state that following
information reveals track record and other details
of the Respondent No. 7 that:
a. .........
b. .........
c. .........
d. .........
e. .........
f. .........
g. .........
h. .........
i. The Respondent No. 7 has intentionally
neglected and failed to reserve, handover or allot
the flats to the Government as per ULC conditions
in MAJORITY of the buildings in Mumbai & Mira
Road within stipulated period. In majority of the
cases, the Respondent No. 7 has sold out flats in
buildings which were originally required to be
handed over to the Government and indirectly
compelled the Government to accept money in
lieu of flats or compelled to accepts flats in his
other buildings at different location and at
comparatively under developed area. The
Government could not recover the Government
dues even after issuance of several reminders and
notices and could recover some dues only after
initiating criminal proceedings\compulsory
revenue recovery or upon filing of Writ Petitions
by affected parties. At the instance of the Chief
Minister, the name of the Respondent No. 7 was
BLACKLISTED by circulars the copy of which is
annexed as internal annexure at last in the EXH
appears at Sr.No.3 & 22 and name of the architect
appears at Sr. No.1, 22, 24, 33, 41, 42, 58 as well
as at Sr.No.5 of another list."
82. Thus, this Petition is filed purportedly as a Public
Interest Litigation inviting the attention of this Court to several
illegalities in the construction projects and more particularly those
undertaken by Respondent No.7. It is stated that the Respondent
No.7 has been protected and shielded by the authorities. It is
necessary that appropriate action including blacklisting the
Respondent No.7 needs to be initiated.
83. What is highlighted before us is a project of the
Respondent No.7 (Type E and F buildings) on the land bearing
Survey No.437/1, 2, 3, 5 to 11, 438/1, 2, 3, 6 and 439/1, 6, 8,
440/1, 3 to 8 and 11 to 13 at Mauje Navghar within the limits of the
Mira Bhayander Municipal Corporation.
84. It is highlighted that the buildings type A, B, C, D have
been constructed on this land. For that purpose, plans have been
revised and sanctioned on 7th August 2006. For building types A, B,
C, D, Row Houses, A-1, the revised sanctioned plans are dated 2 nd
December 2006. Thereafter, on 19th May 2007 there are further
revised development permissions for building type A, B, C, D and
lastly, on 30th November 2007, for building type E, F, Q, K, Row
Houses, J and site services. It is stated that as far as type Q, K, Row
Houses and J is concerned, construction has not been done and the
land to that extent is vacant. However, the Architect has by a letter
dated 26th December 2007 applied for FSI to the extent of the land
affected by CRZ-III and FSI for the portion not so affected. Thus,
construction and development permission was sought in these terms.
On 27th December 2007, this proposal/application of the Architect
was forwarded by the Municipal Corporation to the Urban
Development Department of the Government of Maharashtra. The
Urban Development Department has by a letter dated 8th May 2008
communicated that as far as the land which is not affected by CRZ-
III, development/construction permission can be granted.
Thereafter, on 26th May 2008 the Architect once again forwarded an
application for permission to utilize and exploit the FSI of the non-
CRZ affected portion of the land. However, the Developer has
contravened development permissions granted on 30th November
2007 and instead of constructing building type E and F to the extent
of stilt plus one floor has constructed building of stilt plus 13 (part)
floors. This construction is without any permission.
85. It is stated that now the Developer has forwarded a
proposal for regularization of this construction. Prior to that the
Municipal Corporation had issued stop work notice dated 4th March
2009 and a notice under Section 53 of the MRTP Act.
86. These aspects were highlighted before us. When these
aspects were highlighted and it was alleged that despite the Court
notices being issued on 17th October 2008 and the Court clarifying
that further construction and sale permission shall be at the risk and
consequences and responsibility of Respondent No.7 and that he
would not be permitted to raise any pleas of equity, the Corporation
is considering his proposal for regularization favourably. We had
passed certain interim orders but on noticing the afore-mentioned
facts and further finding that during the pendency of the Petition the
Corporation passed an order of regularization on 17th March 2009 in
respect of building (stilt plus seven floors) in Wing E and (stilt plus
13 floors (part)) in Wing F constructed on the subject plot of land,
we directed that the order of regularization should not be given
effect to by the authorities. The Municipal Commissioner and
Assistant Director of Town Planning of Respondent No.3 Corporation
were directed to remain present in Court with records. They were
directed to file affidavits giving details of the regularization and the
matter stood adjourned. In response to all this we noticed that
affidavits were filed on record. As far as the first affidavit is
concerned, that came to be filed in the year 2008 by the Additional
Collector and Competent Authority. In that affidavit, what has been
pointed out to us by the authorities is as under :-
"25. With reference to sub para 12(xii) of the
Writ Petition, I state that by letter dated
12.5.2003, the Respondent No. 4 has informed the
Collector, Thane about the conversion of
component A to B for Scheme Nos.SR 757, SR 62,
SR 752, SR 748. I state that the said conversion
amount was calculated alongwith interest prior to
the letter dated 12.5.2003. Accordingly, on
8.5.2001, the Respondent No. 4 had issued a letter
to the scheme holders of the abovementioned
Schemes and directed to deposit the conversion
amount. Accordingly, the Tahsildar, Thane had
issued notices to the Respondent No. 7 to pay the
said conversion amount, but the Respondent No. 7
has not paid the said amount. The Respondent
No. 7 had filed an appeal before the Divisional
Commissioner, Konkan Division, Mumbai and
challenged the said Notices. I state that by Order
dated 27.1.2004, the Additional Commissioner
had cancelled the said notices issued by the
Tahsildar, Thane and directed the Respondent No.
4 to decide 8(4) Order as per the return filed by
the Appellant under Section 6(1) and decide the
surplus land."
It is pertinent to note that this authority has enlisted several schemes
of Respondent No.7 and the undertakings therein to handover the
flats/tenements reserved for Government nominees.
87. The Corporation has filed the affidavit of the Municipal
Commissioner who stated that the Respondent No.3 approved the
plans and issued the revised Commencement Certificate on 30th
November 2007 for construction of building type E and F consisting
of stilt plus one floor on the land more particularly referred to above
and which is within the limits of Mira Bhayander Municipal
Corporation. It referred to further permissions but did not give the
other details. This affidavit was filed prior to our order of March
2009.
88. There has been a rejoinder affidavit filed but it is not
necessary to advert to the same inasmuch as on 19th March 2009 the
Additional Collector and Competent Authority, Thane Agglomeration
(Respondent No.4) has pointed out that from the 16 schemes which
are being developed by Respondent No.7 in all 196 tenements
admeasuring 7495.69 sq.mtrs. are required to be surrendered to
Government as per the condition mentioned in the scheme order and
corrigendum orders issued from time to time. This condition has
been partly complied with by Respondent No.7 by surrendering 87
tenements admeasuring built-up area about 3985.72 sq.mtrs.
However, in respect of eleven schemes out of sixteen schemes, the
tenements were not surrendered even after extensions were given by
the authorities. The details of each scheme, the exemption orders
and the terms and conditions are set out in this affidavit and it is
stated that now the Respondent No.4 has calculated penalty in each
scheme and the approximated penalty will be Rs.3,99,15,468/-.
89. The Respondent No.3 Corporation filed its affidavit
through the Municipal Commissioner and has admitted the factual
position noticed by us including issuance of stop-work notice, etc.
However, it justified the action of accepting the proposal for
regularization by pointing out that the same was considered and
recommended as acceptable in principle by Assistant Director of
Town Planning of Respondent No.3. The proposal was accepted on
condition of compliance of Development Control Rules, submission
of NOC from Fire Fighting Department and Environment Department
of the Government and Respondent No.7 was accordingly intimated.
However, the Municipal Commissioner states that the letter dated
17th March 2009 does not amount to final building permission as
contemplated by Section 45 of the MRTP Act and Section 253 of the
BPMC Act. Respondent No.7 is required to comply with conditions
mentioned in the communication and only thereafter the proposal
can be processed further. The Municipal Commissioner stated that
when the matter was before the Court and when the Court observed
that permission under Section 53(5) ought not to have been granted
during the pendency of the Writ Petition that the Corporation has
issued a letter dated 21st March 2009 `staying' its earlier
communication/letter dated 17th March 2009 and all further action
will be subject to orders passed in this Writ Petition. He stated that
the approval was granted for the proposal for regularization prior to
the Respondent No.3 assuming charge.
90. The Assistant Director of Town Planning of Respondent
No.3 in his affidavit stated that the proposal was duly scrutinized as
per the scrutiny proforma. The relevant details including permissible
FSI etc have been sought and thereafter the Assistant Director of
Town Planning (Incharge) of Respondent No.3 recommended further
action. It is stated that the Surveyor, Junior Engineer and Assistant
Town Planner jointly visited the site on 3rd March 2009. The site
inspection report was forwarded. The construction of building "E"
has come upto the stilt plus eleven floors and construction of "F"
building has come upto stilt plus thirteen floors. It was decided to
issue the stop work notice. It is stated that the proposal was
scrutinized in accordance with the prescribed procedure and
necessary inspection was carried out. The acceptance of the proposal
of regularization is in principle and on condition of compliance with
DC Rules, submission of NOC from Fire Fighting Department and
Environment Department, etc. Thus, all further action has been
stayed.
91. The Petitioners have filed further affidavits and have
alleged that Respondent No.7 is putting the approvals in different
names so as to circumvent the orders which may be passed by the
Court and is adopting the same tactics in the case of Bombay
projects. Therefore, this Court should not countenance the request
for favourable consideration of the proposals for regularization.
92. As far as the compliance with Urban Land Ceiling Act
and exemption orders thereunder, what has been pointed out by the
Petitioners in his further affidavit is that the same have not been
complied with. It is stated that properties where the entire project is
situated are sub-divided by four D.P. Roads. The balance area of
base land where "Gaurav Woods" is situated, after sub-division, is
about 2926 sq. mtrs. only. Even if FSI of CRZ area is allowed to be
utilized for Gaurav Woods, due to sub-division, the maximum FSI
upto 1.8 FSI of 5267 sq. mtrs. can only be permitted whereas the
area of Gaurav Woods including buildings to be regularized, is 24340
sq. mtrs. Thus, the CRZ FSI cannot be utilized in the entire lay out.
It can be utilized only on portion of land where Gaurav Woods is
situated but which again is restricted to 1.80. However, the
regularization proposal is such that base land of Gaurav Woods is not
big enough to consume entire 0.8 potential of the CRZ FSI due to
sub-division. In such circumstances, what is alleged is total non-
application of mind on the part of the Mira Bhayander Municipal
Corporation.
XII. WRIT PETITION NO. 1364 OF 2009
93. This Writ Petition is filed by the Developer who is
Respondent No.7 in Appellate Side Writ Petition No.1379 of 2008.
The Developers/Petitioners in this Petition have challenged the order
dated 21st March 2009 (Annexure "H") to this Writ Petition
whereunder the decision earlier taken by the Mira Bhayander
Municipal Corporation of regularizing the construction has been
stayed. There, identical stand has been taken by parties and they rely
primarily upon their affidavits filed in Writ Petition No.1379 of 2008.
94. In this background, the principal question for our
consideration is whether unauthorized and illegal construction can
be regularized and to what extent, so also what is the source of the
power to do so. Before we advert to the rival contentions, it would
be necessary to refer to relevant statutory provisions.
95. Chapter IV of the Maharashtra Regional and Town
Planning Act, 1966 is titled thus :
"CONTROL OF DEVELOPMENT AND USE OF
LAND INCLUDED IN DEVELOPMENT PLANS".
In this Chapter, Section 43 provides for restriction on development
of land. The same states that after the date on which declaration of
intent of preparation of development plan for any area is published
in the Official Gazette or after the date on which the notification
specifying any undeveloped area as a notified area or any area
designated for a new town is published in the Official Gazette, no
person shall institute or change the use of any land or carry out any
development of land without the permission in writing of the
Planning Authority. The proviso need not be adverted to because
that principally permits maintenance, improvement or other
alteration of any building or carrying out of works by any authority
in exercise of its powers or carrying out of works by the Central or
the State Government or any local authority but once again restricted
to the proviso.
96. Section 44 of the MRTP Act reads thus :
"44. Application for permission for
development.-(1) Except as otherwise provided
by rules made in this behalf, any person not being
Central or State Government or local authority
intending to carry out any development on any
land shall make in application writing to the
Planning Authority for permission in such form
and containing such particulars and accompanied
by such documents, as may be prescribed.:
Provided that, save as otherwise provided in
any law, or any rules, regulations or bye-laws
made under any law, for the time being in force,
no such permission shall be necessary for
demolition of any existing structure, erection or
building or part thereof, in compliance of a
statutory notice from a Planning Authority or a
Housing and Area Development Board, the
Bombay Repairs and Reconstruction Board or the
Bombay Slum Improvement Board established
under the Maharashtra Housing and Area
Development Act, 1976.
(2) Without prejudice to the provisions of
sub-section (1) or any other provisions of this Act,
any person intending to execute a Special
Township Project on any land, may make an
application to the State Government, and on
receipt of such application the State Government
may, after making such inquiry as it may deem fit
in that behalf, grant such permission and declare
such project to be a Special Township Project by
notification in the Official Gazette or, reject the
application."
97. Section 45 provides for grant or refusal of permission.
The application under Section 44 has to culminate into exercise of
discretion by the Planning Authority eitherway. The discretion may
be exercised subject to the provisions of the MRTP Act by order in
writing. That order may grant the permission sought under Section
44 unconditionally, conditionally or it may contain the refusal of the
permission. Any permission granted with or without conditions shall
be contained in the Commencement Certificate in the prescribed
form. Every order granting permission subject to conditions or
refusing the permission shall state the grounds for imposing such
conditions. Section 45 reads thus :
"45. Grant or refusal of permission.- (1) On
receipt of an application under section 44 the
Planning Authority may, subject to the provisions
of this Act, by order in writing-
(i) grant the permission, unconditionally;
(ii) grant the permission, subject to such
general or special conditions as it may impose
with the previous approval of the State
Government; or
(iii) refuse the permission.
(2) Any permission granted under sub-section
(1) with or without conditions shall be contained
in a commencement certificate in the prescribed
form.
(3) Every order granting permission subject to
conditions, or refusing permission shall state the
grounds for imposing such conditions or for such
refusal.
(4) Every order under sub-section (1) shall be
communicated to the applicant in the manner
prescribed by regulations.
(5) If the Planning Authority does not
communicate its decision whether to grant or
refuse permission to the applicant within sixty
days from the receipt of his application, or within
sixty days from the date of receipt of reply from
the applicant in respect of any requisition made by
the Planning Authority, whichever is latter, such
permission shall be deemed to have been granted
to the application on the date immediately
following the date of expiry of sixty days.
Provided that, the development proposals,
for which the permission was applied for, is
strictly in conformity with the requirements of all
the relevant Development Control Regulations
framed under this Act or bye-laws or regulations
framed in this behalf under any law for the time
being in force and the same in no way violates
either the provisions of any draft or final plan or
proposals published by means of notice, submitted
for sanction under this Act:
Provided further that, any development
carried out in pursuance of such deemed
permission which is in contravention of the
provisions of the first proviso, shall be deemed to
be an unauthorized development for the purposes
of sections 52 to 57.
(6) The Planning Authority shall, within one
month from the date of issue of commencement
certificate, forward duly authenticated copies of
such certificate and the sanctioned building or
development plans to the Collector concerned."
98. Section 46 enacts a salutary provision inasmuch as the
provisions of development plan shall be duly regarded to by the
Planning Authority in considering application for permission.
Section 47 provides for an appeal to the State Government against
the order under Section 45 refusing or granting permission on
conditions. The appeal lies to the State Government. Section 48
provides for lapsing of permission granted under Section 45 or under
Section 47 and the period for which such permission remains in
force.
99. Section 49 sets out the obligation to acquire land on
refusal of permission or on grant of permission in certain cases.
Section 50 deals with deletion of reservation for designated land for
interim draft for final development plan. Section 51 confers powers
of revocation and modification of permission to develop. Then
comes Sections 52 and 53 which read as under :
"52. Penalty for unauthorized development or
for use otherwise than in conformity with
Development plan.-(1) Any person who,
whether at his own instance or at the instance of
any other person commences, undertakes or
carries out development or institutes, or changes
the use of any land -
(a) without permission required under this Act;
or
(b) which is not in accordance with any
permission granted or in contravention of any
condition subject to which such permission has
been granted;
(c) after the permission for development has
been duly revoked; or
(d) in contravention of any permission which
has been duly modified shall, on conviction, be
punished with imprisonment for a term which
shall not be less than one month but which may
extend to three years and with fine which shall
not be less than two thousand rupees but which
may extend to five thousand rupees, and in the
case of a continuing offence with a further daily
fine which may extend to two hundred rupees for
every day during which the offence continues
after conviction for the first commission of the
offence.
(2) Any person who continues to use or allows
the use of any land or building in contravention of
the provisions of a Development plan without
being allowed to do so under section 45 or 47, or
where the continuance of such use has been
allowed under that section continues such use
after the period for which the use has been
allowed or without complying with the terms and
conditions under which the continuance of such
use is allowed, shall, on conviction be punished
with fine which may extend to five thousand
rupees; and in the case of continuing offence,
with a further fine which may extend to one
hundred rupees for every day during which such
offence continues after conviction for the first
commission of the offence.
53. Power to require removal of
unauthorized development.-(1) Where any
development of land has been carried out as
indicated in sub-section (1) of section 52, the
Planning Authority may, subject to the provisions
of this section, serve on the owner a notice
requiring him, within such period, being not less
than one month, as may be specified, therein after
the service of the notice, to take such steps as may
be specified in the notice,
(a) in cases specified in clause (a) or (c) of sub-
section (1) of section 52, to restore the land to its
condition existing before the said development
took place.
(b) in cases prescribed in clauses (b) or (d) of
sub-section (1) of section 52, to secure
compliance with the conditions or with the
permission as modified:
Provided that, where the notice requires the
discontinuance of any use of land, the Planning
Authority shall serve a notice on the occupier also.
(2) In particular, such notice may, for purposes
of sub-section (1), require -
(a) the demolition or alteration of any
building or works;
(b) the carrying out on land of any
building or other operations; or
(c) the discontinuance of any use of land.
(3) Any person aggrieved by such notice may,
within the period specified in the notice and in
the manner prescribed, apply for permission
under section 44 for retention on the land of any
building or works or for the continuance of any
use of the land, to which the notice relates, and
pending the final determination or withdrawal of
the application, the mere notice itself shall not
affect the retention of buildings or works or the
continuance of such use.
(4) The foregoing provisions of this Chapter
shall, so far as may be applicable apply to an
application made under sub-section (2).
(5) If the permission applied for is granted, the
notice shall stand withdrawn; but if the
permission applied for is not granted, the notice
shall stand; or if such permission is granted for
the retention only of some buildings, or works, or
for the continuance of use of only a part of the
land, the notice shall stand withdrawn as respects
such buildings or works or such part of the land,
but shall stand as respects other buildings or
works or other part of the land, as the case may
be and thereupon, the owner shall be required to
take steps specified in the notice under sub-
section (1) as respects such other buildings, works
or part of the land.
(6) If within the period specified in the notice
or within the same period after the disposal of the
application under sub-section (4), the notice or so
much of it as stands is not complied with, the
planning Authority may-
(a) prosecute the owner for not complying with
the notice; and where the notice requires the
discontinuance of any use of land any other
person also who uses the land or causes or
permits the land to be used in contravention of
the notice; and
(b) where the notice requires the demolition or
alteration of any building or works carrying out of
any building or other operations, itself cause the
restoration of the land to its conditions before the
development took place and secure compliance
with the conditions of the permission or with the
permission as modified by taking such steps as the
Planning Authority may consider necessary
including demolition or alteration of any building
or works or carrying out of any building or other
operations; and recover the amount of any
expenses incurred by it in this behalf from the
owner as arrears of land revenue.
(7) Any person prosecuted under clause (a) of
sub-section (6) shall, on conviction, be punished
with imprisonment for a term which shall not be
less than one month but which may extend to
three years and with fine which shall not be less
than two thousand rupees but which may extend
to five thousand rupees, and in the case of a
continuing offence with a further daily fine which
may extend to two hundred rupees for every day
during which such offence continues after
conviction for the first commission of the offence."
100. A bare perusal of the same would indicate that Section
52 provides for penalty for unauthorized development or for use
otherwise than in conformity with the Development plan whereas
Section 53 confers the powers to require removal of unauthorized
development. Distinction between Sections 52 and 53 is obvious.
The Legislature could not have intended that unauthorized
development should be visited only with penal consequences. It
enacted for the sake of completeness and in public interest Section
53 which empowers the Planning Authority to require removal of
unauthorized development. Thus, punishing the wrong doer is not
enough. The development also must be removed and for that
purpose provision was necessary. The arguments before us centered
around the interpretation of Section 53 and we will advert to this
aspect later on.
101. In the relevant Municipal statutes, namely, the Mumbai
Municipal Corporation Act, 1888 and the Bombay Provincial
Municipal Corporation Act, 1949 which is applicable to the Mira
Bhayander Municipal Corporation, our attention has been invited to
Sections 351 and 353 of the MMC Act, 1888 and to Chapter XV of
the Bombay Provincial Municipal Corporation Act, 1949 and in
particular Section 267 thereof.
102. Our attention has also been invited to the Development
Control Regulations for Greater Mumbai, 1991 which are traceable
to Section 22(m) of the MRTP Act, 1966. These are the Regulations
providing for grant of permission and regulating in general the
construction and development activity.
103. Mr. Thorat, learned Senior Counsel appearing for the
Petitioner in Writ Petition No.1077 of 2007 and in the Appellate Side
Writ Petition No.1379 of 2008 made the lead argument on behalf of
the Petitioners. He contended that the building activity in Mumbai is
regulated by the MRTP Act, 1966, MMC Act, 1888, the Building Bye-
laws and the DC Regulations which are traceable to Section 22(m) of
the MRTP Act, 1966. He submits that the concept of Floor Space
Index and Transferable Development Rights has been spelt out in the
DC Regulations of 1991 and more particularly in Regulation 34 of
Appendix VII. He submits that these concepts, when introduced,
were very laudable. However, now market forces have taken over.
Mr. Thorat submits that another statute which cannot be lost sight of
in these matters is the Maharashtra Ownership Flats (Regulation of
the Promotion of Construction, Sale, Management and Transfer) Act,
1963, (hereinafter referred to for short as "MOFA Act"). Therein
concept of promoter is outlined. He submits that this is necessary
because a builder and developer is often engaged by owners of lands
to undertake construction and development work on their behalf.
They authorize him by executing appropriate documents. They
confer upon him right not only to develop and construct on the land
but to dispose of the constructed area in open market. Thus,
Petitioners and several other purchasers of flats and tenements deal
with the promoter builder. They are unaware of the extent of the
authority conferred by the owner of the land in their favour. Further,
the agreements are executed by the flat purchasers with the builders
on the presumption that all statutory approvals and permission have
been duly obtained by him. That is the representation frequently
made to them. Such persons while executing the agreement are not
shown complete set of documents and material and relevant
particulars are also withheld from them. They proceed on the basis
that when several projects in the vicinity have come up, the area is
residential and the township is developed. That means constructions
are permitted on these lands. Thus, believing the statements and by
observing the actual development at site, that the flat purchasers
invest their hard earned money. The flat purchasers are taken aback
and surprised by sudden event of notices being issued to the owners
and very often the owners and developers suppress the fact of
issuance of such notices. Therefore, even if the stop work notice is
issued in the absence of appropriate public disclosure and display at
site, the flat purchasers are not aware of the fact that the
construction is not permissible or is stopped or halted for non-
compliance with certain statutory provisions or terms and conditions
of the development permission. Only the broad outline is revealed.
That broad outline is nothing but a plan of the flat and tenement
which is annexed to the agreement with the flat purchaser. There is
list of specifications and amenities. Beyond this there is no
information given of the statutory approvals save and except setting
out certain dates and numbers in the recitals to the agreement. The
flat purchaser is unaware of the extent of the development
permission, the terms and conditions, the period for which it is in
force, the details of FSI/TDR. Therefore, when it is pointed out to
them that the construction is unauthorized and illegal that they have
to rush to Court of law. There is a fear that if the construction which
is alleged to be unauthorized and irregular, if demolished, the
residential accommodation itself is lost for ever. Therefore, within
the scheme of the Act and the Rules there is enough scope for
condoning the deficiencies and lapses on the part of the builders and
developers, regularizing and retaining the illegal and unauthorized
construction. Demolition is the last resort and should be so. If the
construction is capable of being regularized, then, that must be the
rule and demolition and removal should be the exception. He
submits that in Writ Petition No.1077 of 2007, all these aspects have
been highlighted and the Petitioner has stated before the Court that
the Municipal Commissioner has failed to apply his mind before
directing demolition of the construction. The construction of the 10th
floor is admittedly coming within the ambit of the notice under
Section 53(1) of the MRTP Act, 1966. However, the notice itself is
dated 24th October 2002. There was a Public Interest Litigation
pending which came to be disposed of by issuing the afore-
mentioned directions in pursuance of which the Municipal
Commissioner was obliged to go into the issue of whether the
construction of 8 to 24 (part) floors can be regularized. Mr.Thorat
submits that the Public Interest Litigation highlighted these aspect
and the matter therefore is squarely covered by the orders and
directions dated 5th May 2004 in these Public Interest Litigations.
Mr.Thorat submits that for the acts and omissions of the builder and
developer, the flat purchaser should not be penalised as he is the
ultimate sufferer. Therefore, the order dated 14th May 2007 be
quashed and set aside. While on the legal issue, Mr.Thorat was fair
enough to assist the Court by pointing out that the Division Bench
decision of this Court and the relevant statutory provisions enable
retention of the unauthorized development provided the person who
is aggrieved by notice under Section 53(1) makes an application for
permission under Section 44 for retention on the land of any
building or works or for continuance of use of the land to which
notice relates. He submits that pending final determination or
withdrawal of the application, mere notice itself does not affect the
retention of building or works or the continuance of such use, is the
legal provision. He submits that if the permission applied for is
granted, then the notice itself is withdrawn but if the permission is
granted either in full or in part, then it stands to that extent and
thereafter the Planning Authority is empowered to initiate
prosecution for not complying with the notice and for demolition or
alteration of the building or works. This is a provision in addition to
the prosecution. Mr.Thorat submits that it is not necessary to once
again go into the ambit and scope of the powers conferred on the
Planning Authority in this behalf. Mr.Thorat submits that even the
discretion conferred under the DC Rules and more particularly DC
Regulations 63 and 64 is on a high powered officer and in this case
the highest official, namely, the Municipal Commissioner. If that
power is conferred on the Municipal Commissioner, then the
presumption is that it would be exercised in good faith and for public
good. That is the presumption in law and when even exercise of
that power is circumscribed and restricted to condoning of
deficiencies, then, what the law postulates as a whole is permission
to retain the unauthorized development. However, that is subject to
making an application under Section 44. He submits that relevant
statutory provisions therefore must be seen in their entirety and read
together. These are provisions for planned development and
regularization of construction activity within the jurisdiction of the
respective Planning Authorities. While not over-looking the larger
public interest and public good and not sacrificing the concept of
planned and regulated development, in individual cases the Planning
Authority/the Municipal Corporation can regularize the construction
unauthorizedly done as in this case. In such circumstances, this
Court must call upon these statutory authorities to exercise such
powers and not allow them to resort to demolition of the
construction at sites straightaway.
104. Mr.Anturkar who has appeared along with Mr.Thorat in
another matter, namely, Appellate Side Writ Petition No.1379 of
2008, contended that MMC Act and Section 53(6) of the MRTP Act,
1966 are provisions which enable the Planning Authorities/
Municipal Corporation to call upon the person who has erected or
executed the building for work at site to cause to do something by
which the work or construction will not violate the provisions in the
MMC Act or any bye law made under the Act. It is a provision which
enables the Corporation to monitor the development and works even
when they are being executed. Even after they are complete as well,
this provision enables the necessary amendments or rectification to
be carried out so that the construction does not become illegal. The
argument of Mr.Anturkar is that the solution is to be found in the
statutory provisions themselves. The solution is that to call upon the
person to restore the lands to its condition not necessarily by
demolition. It enables securing compliance with the conditions of
the permission originally granted or the permission as modified by
taking such steps as the Planning Authority may consider necessary.
He submits that Section 53(6) must be read so as to permit
regularization of such works and recover the amount of expenses
incurred from the owner as arrears of land revenue. In short, he
submits that demolition is an option given to the Planning Authority.
It is not the only step which the Planning Authority must take to
tackle the problem of unauthorized development and construction.
The Planning Authority cannot urge that if the retention permission
is not sought or if the permission is not granted even if sought that
the building has to be necessarily demolished. Mr.Anturkar submits
that the Planning Authority must in the interest of the purchasers
and innocent public resort to such powers as would penalize the
wrong doer but at the same time protect the interest of the
purchasers. The Planning Authority can recover monies from the
wrong doer by imposing heavy costs and fines so as to deter him and
others from doing such acts. In his submission, there are several
deterrent provisions and the authorities must resort to them instead
of demolishing the unauthorized construction/Buildings. The
demolition serve no purpose after flats are booked, entire
consideration paid and purchasers are put in possession. In such
circumstances, this Court must pass appropriate orders and
directions in these cases and particularly bearing in mind the above.
105. During the course of arguments what we find was that
save and except making allegations of illegalities, irregularities and
wrong doing, the flat purchasers and the Developer and Builder is
towing the same line. There is a theme in their arguments
background, namely, that the illegal construction or unauthorized
works should be regularized in the individual cases when they are
capable of being regularized. Mr.Narula, learned Counsel appearing
for the Developer, went a step ahead and stated that it has been
pointed out to the authorities that there is FSI available. The FSI can
be availed of by purchasing TDR from adjoining projects of the same
Developer and by loading it on the subject projects/buildings. If
such steps are taken then the construction is not at all illegal but is
capable of being regularized. Mr.Narula submits that the details of
the FSI and TDR available for exploitation by the Developer in these
cases are already on the records and files of the Municipal
Corporations. Therefore, if the Municipal Corporation in one case
resorts to demolition whereas in other case regularizes the
construction, then, all the more this Court should not uphold the
order of demolition but should direct authorities to take a consistent
view in the public interest.
106. Mr.Narula has pointed out that in the garb of public
Interest Litigation, the Petitioner Sudhir Khandwala has private
interest of the business rival of the Developer-Ravi Developers.
Mr.Narula points out that M/s.Nova Nirman Nigam is the rival of
Respondent Nos.5-7 M/s.Ravi Developers. He has put up Sudhir
Khandwala to file the Petition. The sole proprietor of M/s.Nova
Nirman Nigam Shri Arun Damji Gada is interested in ensuring
demolition of the building constructed by Respondent Nos.5/7
Developer. He is putting a spoke and obstacle in the projects. He is
instrumental in forwarding complaints to the authorities and
initiating action under Section 53(1) of the MRTP Act, 1966. Since
he is acting mala fide and cannot be said to be a crusader against
unauthorized and illegal construction in the city of Mumbai, equally,
his stooge, the Petitioner cannot be said to be acting otherwise. The
Petitioner is towing his line and this is nothing but a private interest
and motivated litigation to harass the Developer. This Court
therefore should not go into any larger issues. At the same time this
Court should not direct demolition of building but must issue
appropriate writs so that the authority considers the proposals of
regularization. In such circumstances, these Petitions to the extent
they seek demolition should be dismissed. The learned Senior
Counsel appearing for Respondent No.7 (M/s. Nova Nirman Nigam)
during the course of arguments raised disputed issues on interse
rights with which we are not really concerned. The Private Disputes
have to be settled elsewhere.
107.
We did not have benefit of the arguments on the larger
issue from other Counsel save and except from Mr.K.K. Singhvi, the
learned Senior Counsel appearing on behalf of the Municipal
Corporation of Greater Mumbai, and Mr. R.S. Apte, the learned
Senior Counsel appearing for Mira Bhayander Municipal
Corporation. Mr.Singhvi pointed out that the source of power of
regularization has been set out in the affidavit of Mr.Jairaj Phatak,
Municipal Commissioner of the Municipal Corporation of Greater
Mumbai. He submits that the Municipal Commissioner has the
powers not only under the Municipal law but under the DC
Regulations and it is that power which has been exercised in this
case. Similarly, Mr.Apte submits that even the Municipal
Commissioner of other Municipal Corporation has the same power
although the building bye-laws or the regulations to control
development not containing identical provision. The other Counsel
more or less adopted the afore-mentioned line of arguments.
108. Mr.Kamdar, learned Senior Counsel appearing for the
Petitioners in Writ Petition No.3123 of 2006 questioned the order of
the Municipal Commissioner in that case directing payment of
penalty to the extent of 1.5 times by urging that it is exhorbitant,
arbitrary and excessive. It has no nexus with the ultimate action of
regularization. If regularization is to be permitted by the statutory
provisions, then, that power must be exercised within the reasonable
limits. The power should not be mis-used by imposing onerous
conditions which are incapable of being complied with. If the
penalty in this case is to be much more than the cost of construction
and carrying out development and when there is no criteria, then,
the levy of penalty as a condition precedent can also be challenged
on the ground of unreasonableness. Therefore, the policy of
regularization ought to be implemented uniformly and reasonably so
also in a fair and just manner. If it is not so implemented and
applied, then, the authorities will pick and choose works and
constructions for demolition and regularization. The exercise would
be completely arbitrary and unbridled. In such circumstances, the
levy of penalty in this case should be set aside.
109. Mr.Singhvi, learned Senior Counsel appearing for the
Municipal Corporation of Greater Mumbai in this case has justified
the penalty and has stated that in the order itself so also in the
affidavit the reasons have been pointed as to why the Circular has
been issued is applied to this case. He submits that considering the
extent of the construction and in the garb of repair permission, the
same has been made, the quantum of penalty cannot be said to be
exhorbitant nor the levy can be termed as arbitrary and unreasonable
in any manner. Therefore, this Petition be dismissed. Ultimately,
the wrong doer has been penalised and the penalty has a nexus with
the illegality and wrong committed by the Petitioners. If the entire
construction is unauthorized and illegal, but the Petitioner has been
given an option to pay the amount of penalty and get atleast the
retained portion regularized, then, in these circumstances, this is not
a fit case for grant of any equitable and discretionary relief.
110. In the light of the above contentions, the principal issue
that arises is whether the Planning Authority/Municipal Corporations
has any power of regularization. We have while reproducing Section
53 made a brief comment on this aspect of the matter. To carry that
discussion further, it would be necessary to note that this provision
empowers the Corporation to issue a notice on the owner requiring
him within such period, being not less than one month, as may be
specified, therein after the service of the notice to take such steps as
may be set out in the notice. The cases covered by Section 53(1) are
those specified in clause (a) to clause (c) of Section 52(1). In such
cases the notice may be for restoring the land to its condition existing
before the said development took place. Where the development or
change in the use of the land is not in accordance with the
permission granted or contravenes any condition subject to which
that has been granted or contravenes any permission which has been
duly notified, then, the notice may secure compliance with the
conditions or with the permissions as modified. In cases where the
notice require discontinuance of any use of the land, the Planning
Authority shall serve a notice on the occupier also. The notice may
require demolition or alteration of any building or works, the
carrying out on land of any building or other operations or the
discontinuance of any use of land.
111. Any person aggrieved by such notice may within the
period specified in the notice and in the manner prescribed can apply
for permission under Section 44 for retention on the land of any
building or works or for the continuance of any use of the land to
which the notice relates and pending the final determination or
withdrawal of the application, the mere notice itself shall not affect
the retention of buildings or works or the continuance of such use.
112. Section 53(4) states that the foregoing provisions of the
Chapter shall so far as as may be applicable apply to the application
made. Further, Section 53(5) states that if the permission applied
for is granted, the notice shall stand withdrawn but if the permission
applied for is not granted, the notice shall stand or if such permission
is granted for the retention of only of some buildings or works or for
the continuance of use of only the part of the land, the notice shall
stand withdrawn as respect to such buildings or works or such part
of the land, but shall stand as respect to other buildings or works or
other parts of the land, as the case may be and thereupon the owner
shall be required to take steps specified in the notice under sub-
section (1) as respect of such other buildings, works or part of the
land. Sub-section (6) provides for prosecution of the owner for not
complying with the notice and where the notice required
discontinuance of any use of land any other person also who uses the
land or causes or permits the land to be used in contravention of the
notice.
113. Section 53(6)(b) states that where the notice requires
the demolition or alteration of any buildings or works carrying out of
any building or other operations, then, the Planning Authority may
itself cause the restoration of the land to its conditions before the
development took place and secure compliance with the conditions
of the permission or with the permission as modified by taking such
steps as the Planning Authority may consider necessary including
demotion or alteration of any buildings or works or carrying out any
buildings or other operations and recover the amount of any
expenses incurred by it in this behalf from the owner as arrears of
land revenue.
114. Thus, the scheme is that if the notice is served on the
owner for the purposes aforesaid, then, any person aggrieved by such
notice may within the period specified in the notice and in the
manner prescribed apply for permission under Section 44 for
retention of the land of any buildings or works or for the continuance
of any use of the land to which the notice relates. The purpose is
obvious because even if the notice is served on the owner by the
Planning Authority, the person aggrieved by the notice may be
anybody other than the owner, who has carried out the works or the
operations including the construction of a building. When such a
person applies under Section 53(3) he must seek permission
contemplated under Section 44 of the MRTP Act, 1966. Section 44
provides for an application for permission for development. That
provision enables any person who is not Central or State Government
or a local authority intending to carry out any development on any
land, for permission in such form and containing such particulars
and accompanied by such documents as may be prescribed. That is
an application for development. Therefore, what Section 53(3)
permits is to apply for permission under Section 44 of the MRTP Act,
1966 but that permission will be for retention on the land of any
buildings or works or for the continuance of any use of the land as
the case may be to which the notice relates. Pending the final
determination or withdrawal of the application, the mere notice itself
shall not affect the retention of the buildings or works or the
continuance of such use. Therefore, despite the notice being issued
to the owner, that person or any other person can apply for retention
and only that application is considered, until then, notice shall not
affect the retention of the works or buildings or continuance of such
use. If no application for permission under Section 44 of the MRTP
Act, 1966 is made for retention, then, the notice will come into force.
115. In the instant case, we are dealing with construction of
buildings. The factual backdrop in which the issue arises for our
consideration is construction of additional floors in excess of the
permission already granted for development. It is with regard to
this excess portion that notices under Section 53(1) of the MRTP Act,
1966 have been issued and, therefore, the question is whether these
portions/works can be regularized by taking recourse to Section
53(3) of the MRTP Act, 1966 or otherwise.
116. For answering this question, we will have to first
consider as to whether there is any provision permitting
regularization of the works in the statutory scheme at all. We need
not answer this question in the light of the authoritative
pronouncement of the Hon'ble Supreme Court in the case of
Mahendra Baburao Mahadik and others v Subhash Krishna Kanitkar
and others, AIR 2005 SC 1794.
117. The Hon'ble Supreme Court was considering a case
where the first Respondent before it filed the Writ Petition (in the
nature of Public Interest Litigation) inter alia for issuance of an
appropriate direction to the Bhiwandi Nizampura Municipal Council
to demolish a building consisting of ground and six upper floors
constructed by the Appellants before the Supreme Court. In that
Writ Petition, this Court, inter alia, held that regularization of such
unauthorized structures would defeat the very purpose of
introducing the rule of planned development of the city and this
cause of such unauthorized construction must be dealt with sternly.
Thereafter, this Court issued directions to take immediate steps to
demolish the unauthorized structures in Bhiwandi in accordance
with law. It is from this judgment and order of this Court that the
Appeal was carried to the Supreme Court and the Hon'ble Supreme
Court adverted to the relevant statutory provisions including
Sections 44 and 53 of the MRTP Act, 1966 and held as under :-
"18. In terms of Section 44 of the MRTP Act, a
person intending to raise any construction is
required to make an application in respect thereof
to the Planning Authority for permission in such
form and containing such particulars and
accompanied by such documents, as may be
prescribed. Filing of such application and
obtaining such permission concededly are
imperative in character. Such permission, if
granted, remains in force for a period of one year
unless extended by the Planning Authority.
19. Section 52 contains penal provisions.
Section 53 authorizes the local authority to direct
removal of unauthorized development. Sub-
section (1) of Section 53 authorizes the local
authority to issue a notice where a development
of land has taken place in violation of the
conditions indicated in Sub-section (1) of Section
xxxxx xxxxx xxxxx
38. Once such a notice under Section 52 is
served, the persons aggrieved within the period
specified therein, which in the instant case is one
month, must apply for permission for retention on
the land of the building or works under Section 44
of the MRTP Act. Only when a permission is
granted, the notice would stand withdrawn. The
question of grant of any permission would arise
only if an application is made therefor. As the
Appellants herein had not filed such application,
the Municipal Council was obliged not only to
prosecute the owner but also to carry out the
demolition in terms of the aforementioned notice
dated 6.6.1998.
39. The Municipal Council is a 'local authority'
as well as planning authority within the meaning
of the provisions of Sections 2(15) and 2(19) of
the MRTP Act.
40. The Municipal Council being a creature of
statute was bound to carry out its functions within
the four-corners thereof. Being a statutory
authority, it was required to follow the rules
scrupulously. Concededly, the Municipal Council
is not possessed of any statutory power to
regularize unauthorized constructions. Its power
is confined to compounding the offences in certain
cases. Moreover, even development charges could
not be recovered from the Appellant in respect of
unauthorized constructions in terms of Section
124E(2) of the MRTP Act.
xxxxx xxxxx xxxxx
43. It may be true that certain demands were
made upon the Appellants herein to deposit the
development charges by the Municipal Council but
the same were made without prejudice to their
rights, as would appear from the notice dated
3.11.1998. Demand of the development charges
without prejudice to the rights of the Municipal
Council did not, thus, create any legal right in
favour of the Appellants. [See Chairman and MD,
NTPC Ltd.
Vs. Reshmi Constructions, Builders & Contractors,
(2004) 2 SCC 663].
44. Payment of development charges by itself,
therefore, did not lead to exoneration from the
consequence of commission of an offence or
regularization of unauthorized constructions.
45. The jurisdiction of a local authority is
confined only to deal with application for grant of
permission for construction as contained in
Section 44 of the MRTP Act whether at the initial
stage or when a notice is served under Sub-section
(2) of Section 53 of the MRTP Act. The power to
grant such permission could be exercised only
within the purview of the Building Bye-laws.
Therefore, being beyond the scope of Section 44 of
the MRTP Act, the Municipal Council did not have
any jurisdiction to direct regularization of such
unauthorized constructions by reason of the said
resolution or otherwise. The power of the
Municipal Council, it is trite, being confined to the
provisions of the said Acts, no action could be
taken by them contrary thereto or inconsistent
therewith."
118. In paragraph 46, the Hon'ble Supreme Court referred to
a decision delivered in Friends Colony Development Committee v State
of Orissa and others, ([2004]8 SCC 733), in paragraph 47, it
referred to the decision of the Supreme Court in M.I. Builders Pvt.
Ltd. v Radhey Shyam Sahu and others, ([1999] 6 SCC 464) and in
paragraphs 48 and 49 held thus :-
"48. A discretionary power must be exercised
having regard to the larger
public interest.
49. In Consumer Action Group and Another vs.
State of T.N. and Others [(2000) 7 SCC 425], this
Court held :
"While exercising such a power the
authority has to keep in mind the purpose and the
policy of the Act and while granting relief has to
equate the resultant effect of such a grant on
both, viz. the public and the individual. So long as
it does not materially affect the public cause, the
grant would be to eliminate individual hardship
which would be within the permissible limit of the
exercise of power.
But where it erodes the public safety, public
convenience, public health etc. the exercise of
power could not be for the furtherance of the
purpose of the Act. Minor abrasion here and there
to eliminate greater hardship, may in a given case,
be justified but in no case affecting the public at
large. So every time the Government exercises its
power it has to examine and balance this before
exercising such a power. Even otherwise, every
individual right including fundamental right is
within, reasonable limit but if it makes inroads
into public rights leading to public inconveniences
it has to be curtailed to that extent. So no
exemption should be granted affecting the public
at large. Various development rules and
restrictions under it are made to ward off possible
public inconvenience and safety. Thus, whenever
any power is to be exercised, the Government
must keep in mind, whether such a grant would
recoil on the public or not and to what extent. If it
does then exemption is to be refused. If the effect
is marginal compared to the hardship of an
individual that may be considered for
granting ............."
119. The Supreme Court also distinguished its earlier
decisions in the case of Corporation of Calcutta v Mulchand
Agarwalla, AIR 1956 SC 110 by observing that the said decision was
rendered in the facts of that case and considering Section 363(2) of
the Calcutta Municipal Act.
120. Once, the statutory scheme has been analysed by the
Hon'ble Supreme Court and it rendered an authoritative
pronouncement qua identical provisions, then, there is no alternative
but to hold that the permission for construction or for retention has
to be granted only within the four-corners of the MRTP Act and
building bye-laws. Beyond Section 53, the Municipal Corporation
does not have any jurisdiction to direct regularization of
unauthorized construction. In the light of the clear pronouncement
and the observations in paragraph 45 it must be held that the power
to permit retention as provided by Section 53(3) of the MRTP Act,
1966 is the only source by which the Corporation could direct
regularization of unauthorized constructions. There is no question of
the Corporation falling back or relying upon the DC Regulations or
any discretionary power of the Municipal Commissioner thereunder.
The provision that is permitting such retention or regularization is to
be found only within Section 53(3) and Section 44 of the MRTP Act,
1966. It was conceded before the Supreme Court that there is no
other statutory power to regularize unauthorized constructions. In
these circumstances, reliance placed by the parties before us on the
discretionary power of the Municipal Commissioner under the DC
Rules, is entirely mis-placed. That discretionary power under
Regulation 64 of the DC Regulations is also clear. The discretionary
power is to be exercised by the Commissioner in specific cases where
clearly demonstrable hardship is caused. In such cases, the
Commissioner for reasons to be recorded in writing by special
permission permit any of the dimensions prescribed by the DC
Regulations to be modified, except those relating to floor space
indices unless otherwise permitted under these Regulations,
provided that the relaxation will not affect the health, safety, fire
safety, structural safety and public safety of the inhabitants of the
building and the neighbourhood. Therefore, the discretionary power
conferred upon the Commissioner has to be exercised firstly in
conformity with the intent and spirit of the Regulations. Secondly,
these discretionary powers are to be exercised in specific cases where
clear demonstrable hardship is caused. Thirdly, it contemplates a
special permission which has to be granted for reasons to be
recorded in writing by the Commissioner. Fourthly, such special
permission permits modification of any of the dimensions prescribed
by the DC Regulations, except those relating to floor space indices
unless otherwise permitted under these Regulations. Lastly, the
relaxation that is contemplated so also the modifications should not
affect the health, safety, fire safety, structural safety, etc.. Therefore,
these discretionary powers under Regulation 64(b) cannot be said to
be the source of power for regularization or retention of the works.
That is a specific power conferred by Section 53 of the MRTP Act,
1966 and as the Supreme Court holds that is the only provision for
permitting regularization. Therefore, it is not permissible to hold
that Regulation 64 of the Development Control Regulations for
Greater Bombay, 1991 would permit the Commissioner to regularize
the construction made in Writ Petition No.1077 of 2007. The
impugned order is traceable to the aforementioned statutory
provision and must be held to be made thereunder.
121. Assuming that the Division Bench judgment in the case
of Rajendra Thakkar (supra) could be read to permit such a
regularization, that judgment, with respect, to the extent it holds
that Regulation 64 confers such a power, cannot be held to a good
law in the light of the Supreme Court decision referred hereinabove.
Apart therefrom, that judgment itself holds that the discretionary
power of the Commissioner is not absolute. Regularization is not
something which should be granted as a matter of course.
Regularization of unauthorized constructions will have to be
permitted on case to case basis. It cannot be said as a matter of
general rule that unauthorized construction must be regularized if
FSI is available or can be generated in the form of TDR from other
source by the person/builder. First of all, the limits of FSI are
prescribed and the construction at a particular site/plot is allowed
considering the FSI generated by the plot. There are specific
Regulations for computation of FSI. Once the limits of floor space
indices are set out so also the requirement for set back and
compulsory open spaces being laid down in the DC Regulations
themselves, then, in the garb of considering an application for
regularization, the Commissioner or the Planning Authority cannot
give a go-bye to these Regulations and stipulations. These are
matters which affect the health, safety not only of the inhabitants of
the buildings but of the neighbourhood. The DC Regulations contain
specific Rules for computation and calculation of FSI `Qua' plots of
all sizes, shapes, dimensions etc.. Further, before development
permission is granted the Planning Authority has to consider
important issues and matters such as public interest and public safety
including of the neighbourhood. It has to give proper care and due
attention to matters such as congestion, affect of the
retention/regularization/new construction on the existing facilities
and basic amenities including water supply, roads, etc. If the
regularization results in increasing pressure on the existing
amenities, then, it would be advisable not to permit such a
regularization.
122. We are of the view that the factors enumerated in
Regulation 64(b) have to be considered and borne in mind including
the contents of the development plan of the City/Town, while
granting or refusing permission for regularization of unauthorized
construction. By their very nature, the factors in this Regulation are
illustrative. The plan is a wider concept and exhaustive. Therein, all
aspects are outlined. Merely because the builder and developer
states that he will be able to generate TDR and load it on to the
existing plot/ construction, that by itself is not decisive. By such
process, all constructions, which are unauthorized and illegal, can be
regularized. The result would be that every such person would
openly flout the building bye-laws and Regulations and make
construction without any adherence thereto and later on, he would
apply for retention or regularization by urging that the FSI of some
other plot belonging to him can be generated and taken into account
for regularization of the subject unauthorized construction. In other
words, Developers and Builders would make unauthorized and
illegal construction on plot `A' and would urge that they are making
construction also on the plot `B', which is in the vicinity. They
would bring in the FSI/TDR generated on plot `B' and load it on plot
`A' and that would enable regularization of the unauthorized and
illegal construction of plot `A'. If such a course is permitted, there
shall be increased pressure on the infrastructure and basic amenities
available in or around plot `A' and particularly its neighbourhood.
That would make the areas in or around plot `A' crowdy. Sometimes
constructions are made in narrow lanes and byelanes. The existing
roads and lanes are insufficient to meet the increasing traffic. If
unauthorized construction is retained and regularized that would
mean additional burden on the already inadequate infrastructural
facilities. This would endanger the safety and health of the persons
in the building on plot `A' and also in its neighbourhood. That is
certainly not the intention of the Legislature nor does it further the
purpose and object of the DC Regulations or Building Rules/Bye-
laws. Hence, we hold that if such loading of TDR is held to be
permissible, that would nullify the Regulations and Rules pertaining
to FSI, open spaces, set backs, etc. It is nobody's case that these
Rules do not have a definite role to play in the Planning and
Development of a City or Town. These Regulations and Rules have
to be strictly adhered to or else the construction would obstruct a
road or abut on it automatically. Further, a construction on a plot
will be made without keeping any open spaces or without adhering
to the restrictions of height of buildings, etc. That is not the intent
and purpose, when the Legislature permitted retention of the works
or buildings with regard to which a notice under Section 53(1), has
been served on the owner. The Legislature has not intended that
provision in the planning laws including building bye-laws and
regulations relating to health, safety, fire safety, safety of the
inhabitants of the buildings and the neighbourhood have to be
ignored or brushed aside. Further, it is not intended that permission
for regularization should be granted by loading of TDRs and
generating of more FSI on the existing plots straightway. Such a
course would have disastrous consequences.
123. The Supreme Court has time and again expressed its
serious concern over unauthorized and indiscriminate constructions
in cities and big towns. In fact, the Supreme Court has cautioned
against liberal use of the power of regularization and retention of
unauthorized works and buildings. The Supreme Court has warned
that authorities must take into account considerations of public
safety and health, protection of environment and ill-effects of
unregulated and uncontrolled construction in cities and towns.
Therefore, it cannot be said that every unauthorized construction can
be permitted to be regularized by loading of TDRS or by condoning
or relaxing the restrictions relating to FSI, open space, set backs,
height of the building, etc. In individual cases and by applying the
standards and rules strictly and rigourously , the authorities must
take an informed decision bearing in mind the building regulations,
restrictions and conditions therein. The retention of unauthorized
works and constructions should not result in wholesale condonation
and relaxation or exemption from the Building Rules and Bye-laws or
else there will be chaos and break down of the rule of law.
Ultimately, planning authorities have been conferred such powers for
public good and in public interest.
As observed by the Supreme Court in the case of
Mahendra B Mahadik (supra), all powers are in the nature of Trust.
The authorities and officers exercising powers under Building
Regulations so also under planning laws, act as trustees of the public
at large. The faith and trust that is reposed in them is in the belief
and hope that they do not exercise the discretionary powers, without
any adherence to the very laws, under which they are empowered to
act and decide such cases. They cannot bye-pass their own rules and
regulations and sacrifice public health and public safety. These are
vital matters and they cannot be a casualty in the hands of the
Municipal and Town Planning authorities. Therefore, before they
take any decision they must not only consider the alleged hardship to
individual flat purchasers/ holders/occupants but bear in the interest
of those residing in the neighbourhood and the public at large. The
city and town so also the area as a whole has a vital interest in such
matters. Ultimately, planned and regulated development of a city or
town is the object of enacting planning laws. Therefore, the interest
of all residents is at stake. The Municipal and Town Planning
authorities cannot adopt an attitude by which they further the
interest and cause of developers and wrong-doers at the cost of the
township as a whole. They must bear in mind the fact that essential
and basic amenities like water and electricity are scarce. The
pressure on land is immense. It is not possible to construct bridges,
roads all the time. Ultimately, a city or town is planned for a certain
number of people and population. The infrastructure and basic
amenities are provided considering the existing population and
growth at a projected rate over a passage of time. If there is
increasing pressure and burden on the existing facilities and
amenities, then, the whole system would collapse resulting in large
scale inconvenience. In every city or town certain number of schools,
educational institutions, hospitals, public conveniences etc. are
provided on the basis of population figures and by future projection.
These matters must therefore have a bearing, when an application
for retention is made and it is not possible to hold that the
authorities should allow such applications only because the
Builder/Developer manages to generate FSI in the form of TDR or
otherwise. Similarly, the argument that these constructions be
regularized by imposing fine and charging high fees as a matter of
course is also difficult to accept, for the afore-mentioned reasons. If
by imposition of fine and charging of compounding fees, large scale
unauthorized constructions are regularized, then, that would
encourage the Builders and Developers so also others having interest
in the development activities, to violate laws openly. They will
always proceed on the basis that the building regulations can be
breached with impunity and all that they would be visited with, is
high compounding fees. That is not the intention of the Legislature.
The penal provisions in Sections 52 and 53 of the MRTP Act, 1966,
are enacted with a defined object and purpose. It is to discourage
unauthorized and illegal development and also punish the wrong
doers. In addition to punishment of wrong doers and offenders, the
Legislature empowers the Planning Authority to pull down, remove
or alter the unauthorized development or works. Therefore, there is
a twin object and purpose in such provisions. That is to check and
control unauthorized construction and development and at the same
time penalise all those who are responsible for the same. Therefore,
by merely charging compounding fees and imposing heavy fines such
construction cannot be regularized. Ultimately, the exercise of this
discretionary power must not result in a licence to break planning
laws. Individual's interest in a property, his right to enjoy it is
subject to larger public good and purpose. That right has to be
balanced with the requirements of the society. It is not absolute.
While dealing with request of retention and regularization, the
deviation and deficiencies, the extent of irregularities, the damage
and ill-effects thereof and the conduct of the parties, are all relevant
considerations. What can be termed as a minor deviation or
departure in a given case, may still have adverse affects and
consequences on the overall development and planning of the city
and town. Once the population is increasing, then what is a minor
deviation and what could be termed to be a major infraction or
breach or violation of the planning laws, are matters which must be
decided by the Planning Authorities in the facts and circumstances of
each case bearing in mind the above objects and purpose. They
cannot as a matter of rule regularize unauthorized constructions by
allowing the Builder/Developer/wrong doer to compensate for the
violation in terms of money or by permitting him to load TDR/FSI
from adjoining plots and areas. If we lay down such a general rule,
we would be going contrary to the judicial pronouncements in the
field. That would be violating the law of the land. We are bound by
the Supreme Court decisions and, therefore, cannot lay down any
principle contrary to the same.
124. In this behalf, we would like to invite the attention of all
concerned to the observations of the Supreme Court in paragraphs
46 and 47 of the decision in Mahendra B. Mahadik (supra).
125. In another decision in the case of Consumer Action
Group and another v State of Tamil Nadu and others reported in AIR
2000 SC 3060, the Supreme Court observed thus :-
"37. Mere reading of this reveals, administrative
failure, regulatory inefficiency and laxity on the
part of the concerned authorities being
conceded which has led to the result, that half of
the city buildings are unauthorized, violating the
town planning legislation and with staring eyes
Government feels helpless to let it pass, as the
period of limitation has gone, so no action could
be taken. This mess is the creation out of the
inefficiency, callousness and the failure of the
statutory functionaries to perform their obligation
under the Act. Because of the largeness of the
illegalities it has placed the Government in a
situation of helplessness as knowing illegalities,
which is writ large no administratively action of
demolition of such a large number of cases is
feasible. The seriousness of the situation does
not stay here when it further records, this is the
pattern in other metropolitan cities of India. What
is the reason? Does the Act and Rules not
clearly lay down, what constructions are legal
what not? Are consequences of such illegal
constructions not laid down? Does the statute not
provide for controlled development of cities and
rural lands in the interest of the welfare of the
people to cater to public conveniences, safety,
health etc.? Why this inaction? The
Government may have a gainful eye in this
process of regularization to gain affluence by
enriching coffers of the State resources but
this gain is insignificant to the loss to the public,
which is State concern also as it waters down all
preceding developments. Before such pattern
becoming cancerous to spread to all part of this
country, it is high time that remedial measure is
taken by the State to check this pattern. Unless
the administration is toned up, the persons
entrusted to implement the scheme of the Act are
made answerable to the latches on their failure
to perform their statutory obligations, it would
continue to result with wrongful gains to the
violators of the law at the cost of public, and
instead of development bring back cities into the
hazards of pollution, disorderly traffic, security
risks etc. Such a pattern retards the
development, jeopardises all purposeful plans of
any city, and liquidates the expenditure incurred
in such development process."
126. In the light of the above mentioned principles, we are of
the view that the Municipal Commissioner was in no error in passing
the order dated 14th May 2007 in Writ Petition No. 1077 of 2007
directing demolition of 8th to 24th floors and pulling down of the
same by the Builder and Developer at his own costs. That order is
passed bearing in mind the afore-mentioned principles and showing
due concern for safety and health of the inhabitants of the buildings
and of the neighbourhood. In all such cases, the flat purchasers are
aggrieved but their interest cannot over-ride those of the members of
the public at large. Their individual rights and interests are
subservient to the concerns for public health and safety. Ultimately,
if they purchase flats without bothering to make inquiries and
seeking details of the construction at site, then, they are themselves
to blame. In this era, where science and technology have advanced
to a great extent so also enactments such as Right to Information Act
are in place, it is not unreasonable to accept that the flat purchasers
should avail of the same and seek appropriate and relevant details of
the construction before booking and purchasing flats/tenements in
large-scale building projects. If they are carried away by the
brochure and the public advertisements and do not make such
inquiries, then, they cannot turn around and seek assistance of the
Courts. Ultimately, the jurisdiction under Article 226 of the
Constitution of India is extra-ordinary, discretionary and equitable.
That jurisdiction cannot be exercised merely because of loss or
inconvenience to such flat purchasers. There are civil and penal laws
available to them for redressal of their individual grievances and
complaints. Doors of civil and criminal courts are open to them.
However, they cannot seek a Writ of Mandamus directing the
Planning Authority to regularize unauthorized and blatantly illegal
constructions. That makes a mockery of the rule of law. This Court
while exercising jurisdiction under Article 226 of the Constitution of
India cannot act contrary to law. Its orders and directions should not
flout the planning laws and building regulations. It has been held
by the Supreme Court that this jurisdiction must confine itself to the
limits of law and not travel beyond it. In such circumstances, the
fervent plea of the Petitioner to allow retention of the unauthorized
and illegal floors cannot be accepted. Consequently, Writ Petition
No.1077 of 2007 fails and is dismissed but without any order as to
costs.
127. For the reasons afore-mentioned and finding that the
levy of the penalty and fine in Writ Petition No.3123 of 2006 is
commensurate with the illegality, we do not find that this is a fit case
for interfering with the order passed by the Municipal Commissioner
directing payment of penalty as a pre-condition for regularization of
the unauthorized construction. That the Municipal Commissioner
has allowed retention of the same is disturbing enough. The
Petitioner had repeatedly approached Courts of law for saving illegal
and unauthorized constructions. Ultimately, the structure to the
extent of 4th to 6th floors was ordered to be demolished. The rest of it
was unauthorized and illegal. Now that has been regularized by
imposing a heavy penalty. That penalty is imposed by taking into
consideration all relevant factors including the conduct of the
Petitioner. We do not find that the Circular applied in this case and
levy of penalty at the rate of 1.5 times more than what is prescribed
under the law is in any way arbitrary, onerous or excessive so also
unreasonable and unfair. In the peculiar facts of this case and
considering the large scale breaches and violations, we do not think
that any wider controversy needs to be gone into and decided. Writ
Petition No.3123 of 2006 must, therefore, fail and is accordingly
dismissed.
128. As far as the Writ Petition No.1379 of 2008 filed on the
Appellate Side of this Court is concerned, what is relevant from the
record is that the order dated 17th March 2009 allowing retention of
certain buildings and floors has been stayed by the Municipal
Corporation itself on 21st March, 2009. If the order dated 17th
March, 2009 is tested on the touchstone of the above mentioned
principles, then, it is difficult to uphold it. The order dated 17 th
March 2009 of the Mira Bhayander Municipal Corporation is,
therefore, declared to be illegal and is accordingly quashed and set
aside. It is directed that the Mira Bhayander Municipal Corporation
should consider the request made by the Developer in that case in
the light of the law laid down by this Court and the Supreme Court
and pass an order afresh as expeditiously as possible and within a
period of twelve weeks from the date of receipt of copy of this
judgment. The Municipal Corporation should pass an order without
being influenced by any of its earlier observations and findings. It
should pass such an order after hearing all affected parties including
the Developer and inhabitants of the neighbourhood and the
residents/occupants in the lay out.
129. In the light of this, Writ Petition No.1364 of 2009 does
not survive and stands disposed of.
130. Writ Petition No.1428 of 2007 filed by a Doctor couple
in which a request is that the Court should direct issuance of
Occupation Certificate. The Petitioners have highlighted the
breaches and violations of the terms and conditions of the IOD and
Commencement Certificate. One of the condition imposed pertains
to surrendering of tenements meant for Government nominees. That
is in pursuance of the conditions imposed in the order of exemption
passed by the Competent Authority and on a scheme presented
under Section 20 of the Urban Land (Ceiling and Regulation) Act,
1976. Admittedly, the requisite number of tenements have not been
surrendered. The authorities have now taken a decision that instead
of calling upon the Builder/Developer concerned with the project to
surrender such tenements, he should compensate the State by paying
the sums specified in the order in that behalf.
131. We had called upon the learned Assistant Government
Pleader to produce the original records pertaining to the order
imposing the penalty in lieu of surrender of flats. What we find from
the record is that the Builder/Developer had given an undertaking to
comply with the terms and surrender the flats/tenements for
Government nominees. The Government instead of enforcing that
undertaking by initiating stringent measures, has let off the Builder/
Developer by imposing monetary fine and penalty. The State should
be aware that ULC Act was enacted for public good and in public
interest. It was found to be constitutional and valid by the highest
Court of the land. The whole object and purpose of granting
exemption was to ensure construction of tenements for weaker
sections of the society so as to solve their problem of housing
accommodation. Such persons cannot afford houses and tenements
at the rate prevailing in the market. Private entrepreneurs and
builders are not interested in construction of mass tenements and
flats and sell them at cheaper and reasonable rates to poor and
needy persons in the society. Therefore, while granting exemption
from the provisions of the ULC Act, conditions were imposed on the
Builders and Developers to surrender flats for such persons, who are
Government nominees. It is the duty of the Government to ensure
them housing accommodation and to fulfill that duty it imposed this
condition. Now, it is wriggling out of this duty and obligation by
letting off the builder. We are told that there are large scale
violations in the city of Mumbai alone and elsewhere and a Public
Interest Litigation in this behalf is pending in this Court. We refrain
from passing any orders as that would affect the pending matter.
Therefore, the facts disclosed in this Writ Petition should also be
placed before the appropriate Division Bench dealing with this Public
Interest Litigation and thereafter necessary steps be taken. For the
present, we can only direct that this Writ Petition should be placed
before the Division Bench dealing with the Public Interest Litigation
and in the meanwhile the authorities should process the application
for grant of Occupation Certificate but shall not pass any final orders
thereon until that Public Interest Litigation and this Writ Petition are
decided. Record and proceedings produced in this Writ Petition be
retained in Court and be placed before the Court dealing with the
Public Interest Litigation.
132. In view of this, Writ Petition Nos.1428 of 2007 and Writ
Petition No. 1572 of 2009 be tagged with the Public Interest
Litigation pending before the Division Bench.
133. In view of the above, we pass the following order :-
(I) Writ Petition No. 1077 of 2007 is
dismissed.
(II) Writ Petition No.3123 2006 is dismissed.
(III) Writ Petition No.1124 of 2007 is
dismissed.
(IV) Writ Petition No.1130 of 2007 is disposed
of by observing that the Petitioner is free
to adopt such other proceedings as are
permissible in law for redressal of the
grievances relating to his right in the said
immovable property.
(V) In Writ Petition No.1190 of 2007,
Respondent No.2 is directed to treat the
Petition as a representation of the
Petitioner and deal with it in accordance
with law. If Respondent No.2 has not
taken any action against the alleged
unauthorized construction, then it should
take the same as expeditiously as
possible.
(VI) Writ Petition (Lodging) No.1280 of 2007
is dismissed.
(VII) Writ Petition No.1428 of 2007 and Writ
Petition No. 1572 of 2009 are directed to
be listed before the appropriate Bench
dealing with the Public Interest Litigation.
(VIII) Writ Petition (Lodging) No.1467 of 2007
is disposed of with a direction to place it
before the Commissioner for passing
appropriate order.
(IX)
ig Public Interest Litigation No.100 of 2008
is directed to be placed before the
appropriate Bench.
(X) Writ Petition No.1379 of 2008 on the
Appellate Side is allowed in terms of the
directions in paragraph 128 above.
(XI) Writ Petition No.1364 of 2009 does not
survive in the light of the directions in
Writ Petition No.1379 of 2008. It is
disposed of accordingly.
CHIEF JUSTICE
S.C. DHARMADHIKARI, J.
uday/judgment/wp1077-2007.sxwdraft
