Bombay High Court
2 Mr.Praful Satra vs 3 Gulmohar Area Society'S Welfare ... on 21 December, 2011
Bench: P. B. Majmudar, Mridula Bhatkar
1 WP 1884 of 2011 and group
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1884/2011
1 Sharvan Developers Private Limited,
A Company incorporated under the
Companies Act, 1956, having its registered
office at Deva Plaza,
S.V.Road, Andheri (West),
Mumbai 400 058
2 Mr.Praful Satra,
of Mumbai , Indian Inhabitant,
Managing Director of the Petitioner No.1,
Having his office at Deve Plaza,
S.V.Road,
Andheri (West), Mumbai 400 058 PETITIONERS
Vs.
1 The Municipal Corporation of Greater
Mumbai, Having its office at Mahapalika Building,
Mahapalika Marg,
Opp.CST, Mumbai-400 001.
2 The Municipal Commissioner
Municipal Corporation Greater Mumbai,
Having his office at Mahapalika Building,
Mahapalika Marg,
Opp.CST, Mumbai-400 001.
3 Gulmohar Area Society's Welfare Group,
Having their office at 3, Matruchaya,
Gulmohar Cross Road No.6, J.V.P.D. RESPONDENTS
Scheme, Juhu, Mumbai- 400 049
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WITH
WRIT PETITION NO.1806/2011
1 Jayesh Mehta,
Indian,Adult, Inhabitant of Mumbai,
Residing at 402, Ruchita Tower, Versova,
Andheri Link Road, Andheri(West),
Mumbai- 400 058
2 Kaushik Surendra Shah,
Indian, Adult, Inhabitant of Mumbai,
Residing at C/511-12, Alka Apartment,
Opp.M.A.High School, S.V.Road,
Andheri (West), Mumbai 400 058
3 Anup Kailashchandra Kedia,
Indian, Adult,Inhabitant of Mumbai,
Residing at 1, Dev Park, Opp.Chandan
Cinema, Juhu, Mumbai 400 049
4 Madhu Khetan,
Indian, adult, Inhabitant of Mumbai,
Residing at 602, Anand Niwas,
Amarshi Road, Malad (West),
Mumbai- 400 056
5 Ranjeetsinh Mulrajsingh Gohil,
Indian, Adult, Inhabitant of Mumbai,
Residing at Flat No.23, Jai Chamunda
Niwas, Carter Road Cross No.5,
Borivali (East), Mumbai 400 066.
6 Magharam C.Kularia,
Indian, Adult, Inhabitant of Mumbai,
Residing at C/704, Suresh Smruti,
Prathmesh Complex, Veera Desai Road,
Andheri (West), Mumbai 400 053
7 Arvind Natwarlal Mehta,
Indian, Adult, Inhabitant of Mumbai
Residing at Plot No.12, Kathiyawad Society,
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Flat No.14, 3rd floor, Gulmohar Cross Road No.12,
Vile Parle (West),
Mumbai-400 049 ....... PETITIONERS
Vs.
1 The Municipal Corporation of Greater
Mumbai, Having its office at Mahapalika Marg,
Opp.CST, Mumbai-400 001.
2 The Municipal Commissioner of Brihanmumbai
Mahanagarpalika,
Having its office at Mahapalika Marg,
Opp.CST, Mumbai-400 001.
3
The Deputy Engineer, (Building & Proposal
Department), BMC K-West Ward
Having Office at Mahapalika Office,
Andheri (West),Mumbai.
4 The Ward Officer, B.M.C.,
K-west Ward, Having Office at
Mahapalika Office, Andheri (West),
Mumbai.
5 Gulmohar Area Society's Welfare Group,
Having its address at 3, Matruchaya,
Gulmohar Cross Road No.6, J.V.P.D.
Scheme, Juhu, Mumbai- 400 049
6 Shravan Developers Pvt. Ltd.
A Company incorporated under the
Provisions of Companies Act, 1956,
and having its Registered office at
Dev Plaza, 2nd Floor, Mumbai-400 058 RESPONDENTS
WITH
WRIT PETITION NO.1807/2011
1 Rashmi Kamal Shah,
Indian,Adult, Residing at Yash Kamal
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Bungalow, Bunbalow No.35,
Chikoowadi, Opp.GIDC Guest House,
Haria Hospital Road, GIDC,Vapi,Gujarat.
2 R.M.Realty Pvt.Ltd.
A Company duly incorporated under
the provisions of Companies Act, 1956,
and having its registered office at
102, Boolani Industrial Estate,
New Link Road, Opp.Fame Ad Labs,
Andheri (W), Mumbai 400 058.
3 Kirti V.Zaveri,
Indian,Adult, Inhabitant of Mumbai,
Residing at 603, Diwani Mahal,
1st Floor, Gulmohar Road,
JVPD Scheme, Mumbai 400 049.
4 Ajay Lohia,
Indian,Adult, inhabitant of Mumbai,
Residing at 62, Shangrila,
Gulmohar Road No.11, Mumbai 400 049
5 Masuuma Deepak Namjoshi,
Indian, Adult, Inhabitant of Mumbai,
Residing at Flat No.1403, Raheja
Classique Tower 3, New Link Road,
Andheri (West), Mumbai 400 058
6 Nitin Amratlal Brahmbhatt
Indian, Adult, Inhabitant of Mumbai
Residing at 711, Mayfair Gardens,
Azad Lane, Andheri (West),
Mumbai 400 058
7 Anil Gupta,
Indian, Adult, Inhabitant of Mumbai,
Residing at Plot No.45, 4th Floor,
Nirmal Prabhu, Juhu, Mumbai 400 049. PETITIONERS
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VS.
1 The Municipal Corporation of Greater
Mumbai, Having its office at Mahapalika Marg,
Opp.CST, Mumbai-400 001.
2 The Municipal Commissioner of Brihanmumbai
Mahanagarpalika,
Having its office at Mahapalika Marg,
Opp.CST, Mumbai-400 001.
3 The Deputy Engineer, (Building & Proposal
Department), BMC K-West Ward
Having Office at Mahapalika Office,
Andheri (West),Mumbai.
4 The Ward Officer, B.M.C.,
K-west Ward, Having Office at
Mahapalika Office, Andheri (West),
Mumbai.
5 Gulmohar Area Society's Welfare Group,
Having its address at 3, Matruchaya,
Gulmohar Cross Road No.6, J.V.P.D.
Scheme, Juhu, Mumbai- 400 049
6 Shravan Developers Pvt. Ltd.
A Company incorporated under the
Provisions of Companies Act, 1956,
and having its Registered office at
Dev Plaza, 2nd Floor, Mumbai-400 058 RESPONDENTS
Mr.P.K.Samdhani, Sr.Advocate i/b Mr.B.K.Gala for petitioners in W.P. No.
1884/2011
Mr.R.A.Kapadia,Sr.Adv.i/b Mr.N.H.Shukla for petitioners in W.P. 1806/
2011
Mr.V.A.Thorat, Sr.Adv.i/b Mr.N.V.Devashrayee for petitioners in W.P.
1807/2011
Mr.K.K.Singhavi, Sr.Adv.with Bennet D'Coma and Ms.V.S.Gharpure and
Ms.P.A.Purandare for Respondent-MCGM
Mr.Vibhav Krishna i/b Juris Consillis for Res.3 in W.P.1884/2011
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CORAM- P.B.MAJMUDAR, AND
MRS.MRIDULA BHATKAR,J.
RESERVED ON- 29th NOVEMBER,2011
PRONOUNCED ON-21st DECEMBER,2011.
J U D G M E N T (Per Mrs.Mridula Bhatkar,J.)
1 The above petitions were heard finally by consent at the
admission stage since common point is involved in these petitions, with
the consent of the Advocates, the petitions are heard together and are
disposed of by this judgment. Formal order of rule is passed and the
service is waived by the respective Advocates.
2 In so far as Writ Petition No.1884 of 2011 is concerned, the
same is filed by the Developer namely Shravan Developers, by which the
petitioners have challenged the order passed by the Municipal
Commissioner dated 30-07-2011. By the impugned order, the Municipal
Commissioner gave directions regarding demolishing certain constructions
carried out by the developers i.e. Lily ponds and adjacent deck areas, while
giving an option that in lieu of demolition, it will be open to the
developers to have equal floors of upper floors be demolished, if Lily
ponds and Deck areas are to be retained by the owner by working out the
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revised FSI computation accordingly. The owner is directed to exercise its
option within a period of six weeks. It is further directed that if the 11th
floor can be constructed within the permissible FSI, the same may be
regularized by charging premium/penalty as per policy. Else the same also
to be demolished. The Municipal Commissioner further directed that the
extended portion of toilets beyond approved plan should be demolished.
Regarding deck parking and maneuvering areas based on the stamp duty
ready reckoner rates of developed land, the Commissioner directed that as
a deterrent against possible misuse in future, the developers shall pay
security deposit for the areas under deck parking. It is ordered that no
occupation permission or water connection will be granted unless such
deposit is paid to the Corporation. It is the aforesaid order of the
Municipal Commissioner which is impugned at the instance of the
petitioners' developers by way of this petition. The operative part of the
order passed by the Municipal Commissioner is reproduced for better
understanding as follows.
1 " Lily ponds and adjacent deck areas should be demolished
or equivalent area of upper floors be demolished, if these
are to be retained by the owner, by working out the revised
FSI computation accordingly. Owner shall exercise this
option within a period of six weeks.
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2 If the 11th floor can be constructed within the permissible
FSI, the same may be regularized by charging
premium/penalty as per policy. Else the same shall be
demolished.
3 Extended portion of toilets beyond approved plan shall be
demolished.
4 Respondent developer shall pay security deposit for the
areas under deck parking and manoeuvring areas based
on the stamp duty ready reckoner rates of developed land,
as a deterrent against possible misuse in future. No
occupation permission or water connection shall be
granted to the building unless the said deposit is paid to the
Corporation. "
3 So far as the Writ Petition Nos.1806 of 2011 and 1807 of
2011 are concerned, the same are filed by the respective flat purchasers of
the building in question. The said order of the Commissioner is also
subject matter of challenge in both these petitions on various grounds, one
of the grounds taken by the flat purchasers is that the order in question
9 WP 1884 of 2011 and group
affects their rights, the said order could not have been passed without
hearing the concerned purchasers.
4 The said building is located on a plot bearing CTS No.6-B,
Village Vile Parle at Gulmohar Road, J.V.P.D.Scheme, Vile Parle (W),
Mumbai. The developers have carried out construction upto the 10th
floor. The respondent No.3 of Writ Petition No.1884 of 2011 filed a Public
Interest Litigation i.e. Writ Petition (L) No.2442 of 2010 before this Court
alleging that the part of the construction carried out by the developers is
contrary to the DC Rules and that it is illegal and the same is required to
be quashed and set aside. The said petition was opposed by the
Corporation. However, at the time of hearing of the petition, the learned
counsel for the respondent No.3, who is the original petitioner, requested
that the averments made in the petition may be treated as a representation
to the Corporation. The said petitioner was permitted to make appropriate
representation annexing a copy of the writ petition to the appropriate
authority and the appropriate authority of the Corporation was directed to
dispose of the same within the stipulated time and in accordance with law.
This Court clarified in the order that the Court has not expressed any
opinion on merits of the matter. The said petition was accordingly
disposed of on the aforesaid lines.
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5 Subsequent to the said order, the Municipal Commissioner
after hearing the petitioner-developers as well as the respondent No.3
herein, passed the impugned order. On behalf of the petitioner-
developers, a stand was taken before the Commissioner that the
construction is carried out as per the approved plan and as per DC Rules
and the plans were sanctioned by the Corporation earlier and in view of
the same, the representation made by the respondent No.3 is required to
be rejected. In so far as the construction of 11th floor is concerned, a
stand was taken by the petitioners that the Corporation has approved the
plan of 11th floor subject to furnishing NOC from Civil Aviation Authority.
Application for seeking NOC from Civil Aviation authority was made by
the petitioner about six months back and the Civil Aviation authority
(Delhi Office) gave NOC on 17-05-2011 and by Mumbai Office on
07-06-2011. However, notice for demolition is already given regarding the
11th floor and the developers undertook to demolish the same in February
2011 and demolished roof slab at many places. On behalf of the
developers, a prayer was made that as per Circular dated 04-02-2011, the
11th floor may be regularized, since the NOC from Civil Aviation Authority
is received.
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6 The Municipal Commissioner gave hearing to the
petitioners in W.P.1884/2011 as well as to the respondent No.3, who has
filed the Writ Petition against the aforesaid constructions. The
Commissioner has given his findings which starts from para 4.1 onwards
in his order. So far as Lily Ponds and Deck areas are concerned, the
Municipal Commissioner has considered DC Regulation No.30(ii)(a),
which permits permissible features in open space as per the said DC
Regulation. As per the order of the Commissioner, the features mentioned
in the said rules, should only on the ground floor, beyond the required
open spaces and they should be uncovered. The Commissioner found that
there is no mention of Deck area in the D.C.Regulation 30 or 35(2). It is
held by the Commissioner that as per the DC rules, it is clear that deck/part
terraces provided near habitable rooms should be a common area, which
shall be accessible from the common staircase. It is found that this is not a case
in which deck is provided to each flat for exclusive use near the lily pond and
the same is not permitted in the DC regulation as the lily ponds and the deck
areas are also duly covered and are not open to sky. It is also found that as per
the intent and spirit of the DC regulations, lily ponds area on every floor is not
permissible, except on the ground floor. The Commissioner accordingly
found that the covered deck areas at upper floors, exclusively attached to
flat, cannot be allowed free of FSI to individual flats owners. He relied
12 WP 1884 of 2011 and group
upon Regulation 6(1) of DCR, which provides that the construction to be
in conformity with Regulations and neither the grant of permission nor
approval of the drawing and specifications nor inspection by the
Commissioner during erection of the building, shall in any way relieve the
owner of such building from full responsibility for carrying out the work in
accordance with these regulations. The Municipal Commissioner found
that since there is no provision under DC Regulations to allow these areas
free of FSI, these are required to be counted in FSI. Accordingly, Lily
ponds and deck areas are permitted to be counted in FSI. On that basis, it
is directed by the Commissioner that these areas should be demolished or
equal areas of upper floors be demolished and if these areas are to be
retained by the owners, working out the revised FSI computation
accordingly.
7 Since the issue regarding 11th floor is not in dispute at this stage,
it is not required to be dealt with. The Municipal Commissioner also held
that the extended portion of the toilets beyond approved plan should be
demolished. So far as the car parking at every floor level which is
considered as deck parking is concerned, the Commissioner held that 196
car parkings have been provided, as against the required parking spaces of
145. Out of these 196 parkings, 99 parkings are proposed on habitable
13 WP 1884 of 2011 and group
floor levels and 9 parkings are proposed at every fllor level, adjacent to the
habitable areas. The Commissioner held that as per DC Regulation 36(5)
(a), the parking spaces can be provided "underneath the building in
basement, within its stilted portion or on upper floors. Though these areas
are permissible free of FSI, the intent and spirit of the DC Regulation is
clear and as per the same, parkings on upper floors should be exclusively
parking floors and not in combination with the habitable area with a view
to avoid any likely misuse by merging of such areas into habitable areas.
It is held that parking on the habitable floor is not specifically prohibited
under Regulation 36(5)(a), in the instant case, there are likelihood of
misuse of the said area. On the basis of the said findings, the
Commissioner directed that since there is a possibility of misuse of the said
deck parking area in future and considering the fact that third party rights
are already created, the Commissioner decided to levy security deposit for
the areas under deck parkings and manoeuvring areas, based on the ready
reckoner rates of developed land to act as a deterrent against possible
misuse in future. Accordingly, no occupation certificate and water
connection shall be granted unless the said deposit is paid by the
developers. Regarding the recreation ground, it is found that the same is
in consonance with the DC regulations. The Commissioner passed the
order in connection with lily ponds and deck areas, demolition of the 11th
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floor, regarding the removal of extended portion of toilets beyond the
approved plan, and charging of security deposit so far as the deck parkings
area is concerned. It is the aforesaid order passed by the Commissioner
which is impugned by the developers as well as by the individual flat
owners, who has agreed to purchase the respective flats.
8 So far as Writ Petition No.1884 is concerned, the learned counsel
Mr.Samdhani for the petitioners vehemently submitted that the
construction of lily ponds as well as the adjacent deck areas is in
consonance with the DC regulations and as per the sanctioned plan. It is
submitted that since the Corporation had already granted such permission,
subsequently, such decision/permission cannot be reviewed or recalled by
the subsequent Commissioner as he has no power under the Mumbai
Municipal Corporation Act or under the Development Control rules to
review and set aside the order already passed by the earlier Commissioner.
It is submitted by the learned counsel for the petitioners that the
construction of the lily ponds cannot be counted in the total FSI as it is
merely an architectural feature, which is permitted in Regulation 35(2) of
the DC rules, for which the special permission was granted by the
Corporation earlier under Regulation 64(b). It is submitted that when the
respondent No.3 filed the Writ Petition, on behalf of the respondent-
15 WP 1884 of 2011 and group
Corporation, a reply was filed by Mr.Pramod Bhangale, wherein a stand
was taken that the construction carried out by the petitioners is in
consonance with the DC rules and there is no illegality. The learned
counsel for the petitioner submits that the construction in question is as
per approved plan and when the construction is carried out as per the
sanctioned plan, no fault can be found with the construction in question
carried out by the developers. It is the contention of the petitioners that
hearing was assumed to be on the basis of respondent no.3's writ petition
wherein the Corporation has filed the reply supporting the claim of the
petitioners and confirmed that the plans were sanctioned as per the
Development Control Regulation and the construction was as per the
approved plan. Therefore, according to the petitioners there was no issue
for the petitioners to answer.
9 The learned counsel for the petitioner submitted that the
Commissioner himself found that the deck parking is not in variation of
the sanctioned plan and against the Rules and in that view of the matter,
he has no jurisdiction to pass any order to security deposit on an
apprehension that the same area is likely to be misused in future.He
submits that the said order of the Commissioner is therefore, without any
jurisdiction and is liable to be set aside. He has relied upon the provisions
16 WP 1884 of 2011 and group
of Section 53(1) of the M.R.T.P.Act. It is submitted that such order could
not have been passed after the construction is completed and merely on
the ground of apprehension of misuse of the said deck parking area. He
submits that in any case, such deposit can never be treated as a premium
for any other purpose. In a given case, even if it is presumed that the
deposit can be recovered, there cannot any direction of deposit of the
amount, as it is to be refunded after a particular time limit (Section 22(m)
of the M.R.T.P.Act. The learned counsel for the petitioners submitted that
the order of asking the petitioners to give security deposit, on the face of
it, is without any jurisdiction and is required to be set aside. It is further
submitted that in view of the requirement under Regulation 5(3) wherein
the procedure for obtaining development permission and commencement
certificate are postulated and they have to be followed at the time of
sanctioning the plan and such security deposit is required to be returned
back as per the time limit prescribed under the Rules. It is submitted by
th learned Counsel for the petitioners that Regulation 5 of the DC Rules, is
applicable only at the time of giving development permission and such
power cannot be exercised subsequently. Regarding lily ponds, it is
submitted that the same is in sanctioned plan and sanctioned plan
provides the dimension and depth. It is submitted that the depth of the
lily pond is only four feet and therefore, it is impossible to believe that it is
17 WP 1884 of 2011 and group
a swimming pool. It is submitted that it is nothing but an architectural
feature and projection.
10 Submissions of the learned counsel for the petitioners
in WP No.1806 of 2011
Mr.Kapadia, the learned counsel for the petitioners in WP
No.1806 of 2011, supported the arguments of Mr.Samdhani. He
submitted that the flat purchasers have invested considerable amount after
taking loans from the various banks and when the Commissioner was
aware of the said fact, as he has mentioned about third party interest, he
was required to give hearing to the petitioners especially when he is
exercising quasi judicial powers by cancelling the plan sanctioned by the
earlier Commissioner. The learned counsel for the petitioners submits
that the order of the Commissioner is against the principles of natural
justice. It is submitted that the order in question is not under Section 51
of the M.R.T.P.Act, and it is under DC Regulation 6. It is submitted that
the construction of the lily ponds can never be treated as a swimming pool
simply because some water is stored in it. He argued that even otherwise,
the Corporation is estopped from taking contrary stand than what it has
taken in the earlier petition. The learned counsel for the petitioner
18 WP 1884 of 2011 and group
submits that the the flat purchasers have already availed considerable loan
and a prudent purchaser taking into account the fact that the plan of the
building to be constructed is already sanctioned by the Corporation, they
invested large amount . There is no good ground to cancel the earlier
permission granted by the predecessor of the Commissioner. Alternatively,
it is submitted that since the petitioners have invested huge amount and
considering the fact that 11th floor is still under construction, even if FSI is
required to be adjusted, the same required to be adjusted from the 11 th
floor. He submits that the Commissioner has no residuary power in
reviewing the order as per law.
11 Submissions of the learned counsel for the petitioners in WP
No.1807 of 2011
Mr.Thorat, the learned counsel appearing for the petitioners
submitted that the Commissioner had no jurisdiction to pass such an
exemplary order while disposing the representation in question. He
submits that the directions given by the Commissioner in this behalf, are
therefore, contrary to law and without any authority of law. According to
him, at the most, the Commissioner could have said that in his opinion,
the construction in question is not in conformity with the DC Rules and he
cannot give further directions in this behalf, as he has no authority to pass
19 WP 1884 of 2011 and group
any order on the said representation. He relied upon the provisions of
Section 51 of the M.R.T.P.Act. Mr.Thorat further submitted that the
Commissioner should have also issued notices to the respective flat owners
and in the notices, it should have been specifically mentioned as to on
what basis the construction in question is offending by giving particulars.
He further submitted that under Section 51 of the M.R.T.P.Act, the
Commissioner is expected to pass a speaking order dealing with the point
whether the development permission can be cancelled or revoked when
substantial construction is carried out. He submitted that the
Commissioner has no power to review earlier order which can be said to
be quasi-judicial order and unless such powers are available, the
Commissioner has no authority to revoke the earlier order.
Submissions on behalf of the respondent-Corporation : -
12 Mr.Singhavi, in his turn, has argued that the Commissioner
has the powers under Section 21 of the General Clauses Act, to pass
appropriate order by which the Commissioner can review the earlier order.
He submitted that the earlier order of sanctioning the plan can be said to
be an administrative decision, which can be changed or revoked at any
stage if it is found that the construction in question is not carried out as
20 WP 1884 of 2011 and group
per the sanctioned plan. He submits that in any case, when the High
Court gave directions to the Commissioner to take appropriate decision on
the representation of the respondent No.3 and when the Commissioner on
that basis, ultimately came to the conclusion that the construction in
question is illegal, he is duty bound to pass consequential order of
demolition, otherwise, it may amount to continue the illegal action in
perpetuity. He further submits that earlier petition which was in the
nature of PIL, the Court directed the Commissioner to take decision, the
Commissioner was duty bound to take decision as per the record of the
case.He submitted that the power of the Commissioner to take appropriate
decision in accordance with law was not challenged by the either side in
the writ petition at the when the Court passed an order. He further
submitted that the point of maintainability should have been raised at the
earliest and not at the subsequent stage, as it may amount to approbate
and reprobate as the petitioners took chance by appearing before the
Commissioner and since the decision is against it, they are raising the
point of jurisdiction of the Commissioner. He submitted that in any case,
in view of the order of the High Court to decide the representation, the
Commissioner has no other alternative but to decide the same in
accordance with law. He relied upon the Halsbury's principle of
'reasonableness'.He further submitted that the inference of the
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Commissioner that the deck parkings area are likely to be misused, is a
proper apprehension especially when the builders are in the habit of
violating the rules, as can be seen that the toilet portion was extended
beyond the approved plan. He submits that the Commissioner has passed
balanced order after keeping the equity. He submitted that as per DC rule
35(2), certain area is excluded from the FSI, such as architectural features.
Whether it is an architectural feature or not, is the question which is
required to be decided by the Commissioner and it is not open for the
Court to decide the same and therefore, it is free from FSI. It is submitted
that the earlier Commissioner passed an order under Regulation 35(2)
granting special permission on 08-07-2009. The said order of the
Commissioner is contrary to the law. He submitted that the order passed
by the earlier Commissioner was administrative in nature. He further
submits that then also, it should be in conformity with the principles of
natural justice and therefore, the developer was heard and after perusal of
the record, the impugned order is passed. He submitted that since the
decision of the earlier Commissioner is wrong, the present Commissioner
has passed the impugned order setting aside the earlier decision. He
relied upon Rule 6 of the DCR.
13 In so far as the affidavit-in-reply filed by the Corporation in
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an earlier petition is concerned, the learned counsel for the respondent-
Corporation submitted that it was merely filed to oppose the petition and
therefore, it cannot be said that the Commissioner has taken contrary
stand to the said affidavit. Regarding the deck parkings area are
concerned, he has relied upon Regulation 2(47) DC Rules. He also relied
upon the provisions of the Maharashtra Ownership Flat Act, 1963, in order
to point out the meaning of the word 'Garage'. He submitted that the
garage is a part of a building which is a parking place. He submitted that
in any case, the Commissioner has passed the balanced order regarding
giving option to the builder regarding additional FSI from 11th floor which
is under consideration. He relied upon Regulation 2(47) of the DC Rules
and relied upon the Judgment of the Supreme Court in the case of
Nahalchand Laloochand Private Ltd. V/s. Panchali Cooperative
Housing Society Ltd.1, which is in connection with the Maharashtra
Ownership of Flats Act. He submitted that in view of the said judgment,
the garage is a portion of flat and so it cannot be included in FSI. He
submitted that so far as the order of security deposit is concerned, it is
permissible as per Section 27 of the M.R.T.P.Act and according to him
premium and deposit are the same. He relied upon the decision of the
Supreme Court in M.I.Builders Pvt. Ltd. V/s.Radhey Shyam Sahu and
1 (2010) 9 SCC 536
23 WP 1884 of 2011 and group
Ors.1He submits that in any case, since the builder has committed violation
of the DC Rules, this Court cannot exercise its extra ordinary jurisdiction
and may relegate the petitioners to file appropriate civil proceedings if
they so desired, as this Court is not bound to exercise powers under Article
226 of the Constitution of India, considering the conduct of the party do
not justify exercising such powers. He submitted that in view of increasing
density of population, construction contrary to FSI provisions is not to be
permitted.
14 Mr.Vaibhav Krishna, learned counsel appearing for the
respondent No.3, submitted that the lily ponds cannot be said to be an
amenity and an architectural design or feature, as it is in the nature of
swimming pool and the Commissioner has rightly passed the impugned
order and even otherwise, it will create bad precedent so far as other
building is concerned. He submitted that the respondent No.3 has locus
standi to submit before this Court in the present petition, as the
Commissioner has taken decision on the basis of the representation of the
respondent No.3, though he admits that the individual rights of the
respondent No.3 have not been violated and he has no personal interest in
the matter, but he has right to audience in view of the fact that the
1 AIR 1999 SC 2468
24 WP 1884 of 2011 and group
Commissioner has passed the order on the basis of his representation. He
relied upon the relevant provisions of the DC rules to substantiate his
arguments.
15 Mr.Samdhani, the learned counsel appearing for the petitioners
in rejoinder, submitted that the deposit in question can be said to be a
premium and deposit is not provided under Section 22(m) of M.R.T.P.Act.
The learned counsel also argued that the Commissioner had no power to
set aside or review the earlier order passed by the earlier Commissioner,
especially when he is exercising quasi judicial powers and unless there is
expressed provision to review such order, he could not have passed the
impugned order merely because the respondent No.3 has some grievance
regarding the construction in question. It is submitted that the respondent
No.3 is unnecessarily harassing the petitioners from the beginning. He
submitted that the order of the Commissioner cannot be said to be an
administrative order and it is quasi judicial order as the civil rights of the
parties are determined. He therefore, submitted that the order is to
be considered as a quasi judicial order and Section 21 of the
General Clauses Act, cannot be invoked. Regarding the decision of the
25 WP 1884 of 2011 and group
M.I.Builders Pvt. Ltd. V/s.Radhey Shyam Sahu and Ors., it is submitted that
in the said case, the entire building was found to be illegal and the facts of
the instant case are totally different. Regarding the decision of this Court
delivered by Justice Wadhva, it is argued by Mr.Samdhani that in a case
where a party suppressing the fact, the Court may not entertain the
petition under Article 226 of the Constitution of India. He submitted that
in the instant case, there is no suppression as the petitioner has pointed
out all the facts before this Court and has challenged the order passed by
the Commissioner and since the Commissioner has passed order contrary
to the law, the petitioner can invoke Article 226 of the Constitution of
India, especially when the earlier petition was filed by the respondent No.
3 wherein he was permitted to withdraw the petition with a view to make
representation and since the Commissioner has passed the order in view of
the said order, the present petition is maintainable and there is no
suppression of material and all facts have been disclosed as per the record.
16 In rejoinder, Mr.Kapadia, the learned counsel for the petitioners
in WP No.1806 of 2011 argued that the order of the Commissioner is not
an administrative order. Corporation has filed the reply supporting
26 WP 1884 of 2011 and group
the claim of the petitioners and confirmed that the plans were sanctioned
as per the Development Control Regulation and the construction was as
per the approved plan. Therefore, according to the petitioners there was
no issue for the petitioners to answer whether order passed by the earlier
Commissioner can be reviewed by the subsequent Commissioner. He
relied upon a ruling of the Supreme Court reported in Province of
Bombay Vs.Khushaldas S.Advani,reported in AIR (87) 1950 Supreme
Court,222.
17 Mr.Thorat, in the rejoinder, has argued that the
Commissioner had three options (i) to reject the application made by the
respondent No.3 (ii) to issue notice to the individual flat owners and to
the petitioners before taking any coercive action (iii) by giving appropriate
notice in which it should have been clearly pointed out that in the notice
as to which rules are violated by the developers. Mr.Thorat further
submitted that no specific grounds are mentioned as to on what basis the
impugned order is passed for taking such action and the Commissioner has
passed the impugned order on the basis of general averments made by the
respondent No.3 in his representation and on the said ground, the
impugned order should be set aside as it is illegal and can be said to be in
violation of principles of natural justice, as the petitioners may not know
as to on what ground, he is required to defend the case. He submitted
27 WP 1884 of 2011 and group
that the Commissioner should not have made further observation about
the demolition, except recording the finding regarding the alleged
construction, as it is not open for the Commissioner to pass any
consequential order in this behalf and the Commissioner cannot pass any
executable order in this behalf. He submitted that since there is
appropriate provisions in Section 51 of the M.R.T.P.Act, the provisions of
Section 21 of the General Clauses Act, is not applicable.
18 Lastly, Mr.Singhavi, submitted that the provisions of Section
44 and 45 are in connection with the application for permission for
development and the grant or refusal of permission. Section 47 of the Act,
deals with the provisions of appeal and since appeal is provided, it is an
administrative order regarding sanctioning or refusal of the plan. He
relied upon the decision of the Supreme Court in the case of Kham Chand
V/s. Union of India, 242 SC Reports (1963).
19 We have heard the concerned Advocates appearing in the matter
at great length and have gone through the voluminous documents forming
part of the compilation and have also considered the relevant case laws
cited before us by the learned counsel for the respective parties. It is
required to be noted that the Commissioner has ultimately passed the
28 WP 1884 of 2011 and group
order on the basis of the representation of the respondent No.3 and in
view of the earlier order dt.9/2/2011 of this Court in W.P.2442/2010, the
Commissioner after considering the rules and regulations passed the
impugned order in question. As per the directions of this Court the
Commissioner was required to take decision according to law. Meaning
thereby that the Commissioner was required to take fresh decision as to
whether the Construction is as per the Development Control Regulations
and as per the Act. The Commissioner, therefore, was required to go to the
root of the matter and take such decision in view of the directions given
by this Court. In our view since the Commissioner was required to take
decision in view of the order passed by this Court in earlier Writ Petition,
whether the first decision regarding sanctioned plan could be said to be an
administrative order or quasi judicial order is not of much consequence as
ultimately the Commissioner was required to take fresh decision in view of
the directions given by this Court. In a given case in public interest, the
Court can direct the Commissioner to take fresh decision or may even
direct the Commissioner to demolish the illegal structure and in
compliance the Commissioner is required to take decision and to find out
whether the construction in question was as per the Development Control
Regulations and in accordance with law. In a given case, When the Court
directs to authority to take a decision, it is the bounden duty of the said
29 WP 1884 of 2011 and group
authority to take decision in accordance with law and as per the record of
the case. In accordance with law means within his powers and he has to
state specifically if any illegality or irregularity is occurred at any stage of
the process of the development which includes the proposal, approval and
construction. So far as the ruling of the Supreme Court in the case of
M.I.Builders Pvt. Ltd. V/s.Radhey Shyam Sahu and Ors., the Supreme Court
had given the said directions regarding demolition of the building.
Considering the said aspect, it is not possible for us to accept the say of the
learned counsel for the respondents that the Commissioner has no power
to review the earlier order and that the Commissioner has no independent
jurisdiction to review and set aside the order passed by the earlier
Commissioner. There are cases that in Public Interest Litigation, this
Court gives directions to the Public authority to act in a particular manner
and to take decision. Considering the said aspect of the matter, though it
is true that normally when the change of Commissioner, the subsequent
Commissioner should not normally review earlier orders if there is no
specific provision in this behalf. However, in view of the fact that the
Commissioner acted as per the directions of the Court by way of
representation of the respondent No.3, it cannot be said that he has no
power to pass consequential order in case he comes to the conclusion that
the construction in question is illegal. It is therefore, not possible to
30 WP 1884 of 2011 and group
accept the say of the learned counsel for the petitioners that the
Commissioner cannot reconsider the order passed by the earlier
Commissioner, especially in view of the directions given in an earlier writ
petition. It is required to be noted that even before the Commissioner, no
point was raised regarding the jurisdiction of the Commissioner to pass
such consequential order. On the contrary, the petitioner-developer
submitted to the jurisdiction of the Commissioner by giving detailed reply
and has also submitted his say before the Commissioner. Considering the
said aspect, it is not necessary to examine the point in detail as to whether
earlier order passed by the Commissioner is a quasi-judicial order or
administrative order and whether the Commissioner could have
subsequently revoked the said order. In view of what is stated above, it is
not necessary to examine applicability of Section 21 of the General Clauses
Act. In our view, the Commissioner was required to give fresh look to the
entire subject matter in view of the directions given by the High Court and
to find out whether the construction carried out is as per the provisions of
M.R.T.P.Act and Development Control Regulations.
20. Leaned Sr.Advocate Mr.Rohit Kapadia,appearing for
Petitioner in WP 1806/2011 relied on the following judgments.
31 WP 1884 of 2011 and group
1 Patel Narshi Thakershi and Ors.Vs. Pradyumansinghji
Arjunsinghji, reported in AIR 1970 Supreme Court, 1273-
2 Smt.Hansa Dattatraya Moodaliar & others Vs. The Pune
Municipal Corporation & others, reported in 1998(2) Bom.C.R.647.
3 Province of Bombay Vs.Khushaldas S.Advani,reported in AIR
(87) 1950 Supreme Court,222-
Learned Sr.Counsel Mr.Thorat appearing on behalf of the
petitioners in W.P.1807/2011 relied on the following judgments.
1] State of Bihar Vs.D.N.Ganguly and ors., AIR 1958 Supreme Court,
(On Section 21 of General Clauses Act)
2] G.J.Kanga,Adm.of Municipal Corporation Vs.S.S.Basha, 1992
Mh.L.J.1573
3] State of M.P.Vs.Ajay Singh and Ors.,reported in AIR 1993
Supreme Court, 825 -
22 Learned counsel on the point whether the order passed by
the Authority is quasi judicial or administrative in nature, relied on
number of rulings. After going through these rulings overall ratios can be
culled out as the power of review is not inherent power, but it must be
32 WP 1884 of 2011 and group
conferred by law either specifically or by necessary implication, if the
order is quasi judicial. It was held that administrative function is called
quasi judicial when there is an obligation to adopt the judicial approach
and to comply with the basic requirement of justice. Where there is no
such obligation the decision is called purely an administrative. On the
basis of these rulings, learned counsel for the petitioners advanced their
submissions that the power to rescind any notice conferred generally in
Section 21 of the General Clauses Act is clearly inapplicable when the
order is quasi judicial. We have gone through the case laws cited by the
learned counsel appearing for the petitioners, however, these rulings are
not helpful to the petitioners in the present matter as the decision given by
the Commissioner is distinguishable on the facts. The decision given by the
Commissioner is pursuant to the directions given by this Court in the Writ
Petitions and the first order of the Commissioner about sanctioning of the
plan is an administrative one.
23 Learned counsel Mr.Singhvi on behalf of the Corporation has
relied on the following rulings.
1 Ashok Kumar Sahu V.Union of India & Ors.(2006) 6 SCC 704.
2 Roshan Deen V.Preeti Lal (2002) 1 SCC 100.
3 Paygonda Surgonda Patil V.Jingoda Surgonda Patil,1967,BLR,579.
33 WP 1884 of 2011 and group
4 Gandhinagar Motor Transport Society Vs.State of Bombay, 1953,BLR,
922.
5 K.R.Shenoy V.Udipi Municipality,AIR 1974 SC 2177
6 Bhawarlal Bhandari V.Universal Heavy Mechanical Lifting
Enterprises,AIR 1999 SC 246.
7 Manaklal V.Dr.Prem Chand Singhvi & Ors.(S)AIR 1957 SC 425
8 Des Raj V.Union of India & Anr.(2004)7 Supreme Court Cases 753
9 M.C.Mehta V.Union of India (2004) 6 SCC 588
10 Mysore Urban Development Authority V.Veer Kumar Jain & Ors.(2010) 5
SCC 791
11 State of U.P.V.District Judge, Unnao & Ors.(1984) 2 SCC 673
12 State of Bombay V.Morarji Cooverji, 1958 BLR 318
13 M.I.Builders Pvt.Ltd.Vs.Radhey Shyam Sahu and Ors.AIR 1999 Supreme
Court, 2468
14 He relied on Nahalchand Laloochand Private limited Vs.Panchali
Cooperative Housing Society Limited (2010) 9 Supreme Court Cases
536 to explain the words and phrases "common area,facility, flat
and garrage".
15 Mr.Singhvi relied heavily on Jaswant Sugar Mills
Ltd.MeerutV.Lakshmichand & Ors. 242,Supreme Court Reports
(1963) SUPP, to point out difference between quasi judicial
34 WP 1884 of 2011 and group
and administrative order and the criteria which is to be
satisfied while taking the judicial decision.
24 As pointed out earlier, in view of the directions given by this
court, the Commissioner was required to take decision as to whether the
construction was as per the Development Control Regulations or not and,
therefore, the Commissioner was entitled to take such decision. If
ultimately it is found by the Commissioner that the construction was
carried out contrary to the Development Control Regulations and even
though plans are sanctioned, the same could not have been sanctioned, he
can pass consequential order. If the Commissioner do not give further
directions, it may amount to perpetuate the illegality. Therefore, no fault
can be found in the impugned order so far as taking fresh decision in
connection with the construction in question is concerned. However, it is
required to be noted that so far as the subsequent decision of the
Commissioner is concerned, he was required to hear the concerned parties
and the said order can be said to be quasi judicial. In our view since the
Commissioner was conscious of the fact that the agreements to purchase
were executed by some of the flat owners, in our view, atleast their say
was required to be taken into consideration, especially when it is argued
35 WP 1884 of 2011 and group
by them that even if the FSI is to be adjusted it should be adjusted from
the area which is meant for the eleventh floor. In view of the same, in our
view, in order to comply with the provisions of natural justice, show cause
notice was also required to be issued to the concerned flat owners as the
Commissioner himself has observed in the order that the flats have been
purchased by some of the purchasers.
In so far as the merits of the case is concerned, it is required to
be noted that whether the lily ponds in question can be said to be an
amenity or architectural features or not is to be decided by the
Commissioner. Since the Commissioner was deciding important rights of
the parties and his decision is likely to be affected to the flat purchasers
and the developers, in our view, this aspect is required to be dealt with in a
little more depth by the Commissioner. This Court is not an expert to give
opinion on these aspects when section 35(2) is silent on what is
architectural feature? Considering the said aspect, in our view, the matter
is required to be sent back to the Commissioner to decide the said
questions de novo. The Commissioner may accordingly take fresh decision
in this behalf and to find out whether it is an amenity and as per the
Development Control Rules and in accordance with law.
36 WP 1884 of 2011 and group
26 We would like to point out certain legal provisions in respect of
Lily pond, deck parking and computation of FSI which are the issues in
dispute.
LILY PONDS-
27 The proposal was for the construction of the Lily Pond
admeasuring 1.64 x 3.4 mtrs.. Lily Pond and deck area is constructed
attached to the flat and it was shown and marked in the proposal dated
30/6/2009. A letter was addressed by the builder to the Executive
Engineer, MCGM, Bandra wherein it was stated that as per the
requirement of the client Lily Pond alongwith deck has been proposed for
every flat beyond the living room area in staggering location on alternate
floors to enhance openness and to create natural environment for each
flat. A request was made that the said area is to be approved free of FSI. It
is required to be decided whether the Lily Ponds being an architectural
feature Lily Pond is to be exempted from the FSI? The term architectural
feature is mentioned in Regulation 35(2)(c) of the Development Control
Regulations for Greater Mumbai, 1991. Regulation 30 is about the
construction permitted in open spaces. Regulation 30(ii) (a) reads as
follows-
A rockery, well and well structures, plant nursery,
37 WP 1884 of 2011 and group
water pool, or fountain swimming pool (if uncovered
and only beyond the required open spaces as
required under these Regulations), platform around
a tree, tank,bench, gate, slide, swing, ramp,
A swimming pool, fountain, plant nursery, water pool are permitted in
open spaces and free of FSI. In the D.C.Regulations, there is no mention of
pond. As per the case of the petitioners, this is neither a swimming pool
nor a spa pool or relaxation pool, but it is a pond where the water lilies are
planted. It is a decorative feature and, therefore, it is to be treated as an
architectural feature. Swimming pool, fountain or plant nursery and water
pool are permitted in open space as per Regulation 30(ii)(a). Lily pond
provided to each flat is not open to sky. They are covered with the roof
which forms a floor of the Lily pond of the upper flat. Thus, it cannot be
taken under Regulation 30(ii)(a). Under such circumstances whether Lily
pond considering its location, area occupied and the adjacent deck can
be covered under either Regulation 30(ii)(a) or 35(2)(c) of the
Regulations? The petitioners have denied that the Lily pond is an
additional amenity but they emphasised it is an architectural feature.
However, in the proposal submitted by them on 30/6/2009 in paragraph
12 they have mentioned about the Lily Pond and deck as an additional
38 WP 1884 of 2011 and group
amenity for the flat purchaser.
28 Learned counsel for the Corporation has produced copy of
agreement entered between Sharavan Builders and the flat purchasers.
Our attention was drawn to the schedule-III appearing on internal page 35
of the agreement where under clause (b) additional amenities alongwith
the flat are mentioned as follows.-
(b) (1) Lily Pond Deck, etc.
(2) Car Parking Deck,etc.
"Amenity" is defined in Regulation 3(7) which reads as
follows.
"Amenity" means roads, streets, open space, parks,
recreational grounds, play grounds, gardens, water supply, electric
supply, street lighting, sewerage, drainage, public works and other
utilities, services and conveniences."
29 We have highlighted all contentions and legal provisions to
enable the Municipal Commissioner to appreciate and decide on facts
whether Lily pond is an amenity,or an architectural feature or a pool so
that it can be free of FSI.
39 WP 1884 of 2011 and group
CAR DECK PARKING
30 Car parking is excluded from the FSI computation. As per
Regulation 36 parking space is a common area. It was submitted that
following spaces are allowed under Regulation 36(5)(a), which reads
thus-
" Parking Spaces--Where to be accommodated:- The parking
spaces may be provided-
a] underneath the building, in basements within its stilted
portion, or on upper floors; "
31 Deck parking as submitted by the learned counsel for the
petitioner and the Corporation it is recognized and approved by the
Corporation as a solution to the scarcity of the space for parking. We do
accept the reality that a number of vehicles per family in metro cities has
increased more than one. Therefore,it has become obligatory for both the
builder and the Planning Authority to find and to recognize new
methods/types of parking areas. It is necessary for the builder/developer
for optimum use of the space to introduce innovative ideas of space
management suitable to the growing population of metro cities and it's
changing economic complexion.
40 WP 1884 of 2011 and group
32 Be that as it may, it is to be in conformity with the rules and
regulations and it should not violate the D.C.Regulations. Parking can be
provided (as per Regulation 36(5)(a)) even on the upper floors. The word
'deck parking' is not in the D.C.Regulations. However, such parking is
approved by the Corporation for the reason mentioned above. In the
present case the deck parking is attached to the flat and also includes
manoeuvring area. In the present matter the builder has submitted a
proposal for parking spaces for 9 cars. Regulation 36(1)(ii) says about the
general space requirement about parking. As per Regulation 36(1)(ii) the
type of motor vehicle is given and the minimum size of parking space is
given 2.5 mtrs.x 5.5.mtrs.. It is pointed out by the learned counsel
appearing for the respondent Welfare Society that the area of flat is 1900
sq.ft.and area of parking and manoeuvring area is more than the flat. So
far as the deck parking is concerned, on every floor, flat areas are 198.32
sq.mt., 185.05 sq.mt. And 177.21 sq.mt against the car parking area of
165.55 sq.mt, 268.05 sq.mt and 192.22 sq.mt., respectively including
manoeuvring around area and area of lift lobby. In the affidavit filed by
Mr.Bhangale, on behalf of the Municipal Corporation in this petition shows
that the area of the parking space and manoeuvring space is situated in
such a way that there is possibility that it might be misused.
41 WP 1884 of 2011 and group
33 We accept the submissions of the petitioners that deck parking
was shown in the plans and it was approved by the Corporation i.e.
Executive Engineer and finally it was sanctioned by the erstwhile
Municipal Commissioner. Thus, the stand taken by the Corporation that
the area will be misused in future is not sustainable in law as speculation
cannot be a ground for penalty. Similarly apprehension is expressed that
the fact that entire parking space and the manoeuvring area is shown in
the plan in such a manner that it is likely to be misused. Thus, all the facts
ought to have been considered by erstwhile Executive Engineer and the
Municipal Commissioner when they sanctioned the plan.
34 It can be said that deck parking is an another type of parking
and so it is covered under the definition of parking and then exempted
from F.S.I.. computation. Garrage is a place of parking which is attached
to a flat and it is exempted from F.S.I.. Garrage is a closed area. Deck
parking is also a closed area with four walls and roof. Generally garrage
admeasures about 10x15 sq.ft. Or 12 x 20 sq.ft. . Regulation 36 of the
Development Control Regulations elaborates the details of a space
required for parking . Size of parking for motor vehicles or transport
vehicles is also mentioned. In the said regulation specification of deck
parking is not given. Thus, generally four cars can be parked in area
42 WP 1884 of 2011 and group
minimum 400 sq. ft. or maximum 600 sq.ft.. It may be demanded that a
flat occupant owns 12 cars, so he wants a garrage of 1200/1800 sq.ft..
Whether such parking can be provided at stilt or upper floors? Whether it
is to be provided as deck parking and free of FSI? Whether the
Commissioner under his discretionary power may grant such area free of
FSI? We would like to point out that when there are loopholes, advantage
is always taken by the interested parties which may frustrate the object
and policy of FSI, and ultimately may affect adversely the civic amenities
at large for which the corporation is bound to provide. Though there are
certain irregularities, there is a provision in the Corporation Act to
regularise such acts. We agree with the petitioner that the Commissioner
has not given specific notice and speaking order in respect of the damages
which may be caused.
35 The two major factors i.e. location and FSI determine the price
of a premises. It is to be noted that ratable value of the flat is fixed on the
basis of the location, floor and also FSI, etc.of the flat. Therefore, under
the D.C.Regulations a list of the items/structures is specified under
relevant provision of the D.C.Regulations which is not to be computed in
FSI. Beyond this, under the D.C.Regulations, no area can be exempted
from the computation in the FSI. This affects adversely the revenue of the
43 WP 1884 of 2011 and group
Corporation. We have already mentioned in the beginning that this is not a
case where the construction is not as per the sanctioned plan, but this is a
case where the construction is as per the plan, but the question involved is,
whether the approved plan is inconsistent with the provisions of the
D.C.Regulations?
36 In so far as the deck parkings is concerned,it is true as
argued by the learned counsel for the petitioners that there is no provision
under the DC rules to charge security deposit at a subsequent stage as it is
clear that the deposit is to be taken under Section 22(m) of the
M.R.T.P.Act, at the initial stage while granting development permission and
commencement certificate, especially when the earlier Commissioner has
granted special permission under the DC Rules in this behalf.
37 Much is argued about discretionary powers of the
Municipal Commissioner under Regulation 64. Scope of Regulation 64
is not unlimited. Regulation 64 vests discretionary powers in the Municipal
Commissioner as per Regulation 64(a)(i)(ii)(iii)(iv). Case of giving
permission of Lily Ponds or deck parking cannot be covered under
Regulation 64(a)(i)(ii)(iii)(iv). As per the submissions discretionary
powers are used by the Municipal Commissioner under Regulation 64(a)
44 WP 1884 of 2011 and group
(i)(ii)(iii)(iv) and 64(b) reads as follows.
Regulation 64- Discretionary powers-(a) In conformity with
the intent and spirit of these Regulations, the Commissioner may -
[i] decide on matters where it is alleged that there is an error in
any order, requirement, decision, determination made by any
municipal officer under delegation of powers in Regulation or
interpretation in the application of these Regulations;
[ii]
interpret the provisions of these Regulations where a street
layout actually on the ground varies from the street layout shown on
the development plan;
[iii] modify the limit of a zone where the boundary line of the
zone divides a plot with the previous approval of Government ; and
[iv] authorise the erection of a building or the use of premises
for a public service undertaking for public utility purposes only, where
he finds such an authorisation to be reasonably necessary for the
public convenience and welfare, even if it is not permitted in any land use
classification.
(b) In specific cases where a clearly demonstrable hardship is
caused, the Commissioner may for reasons to be recorded in writing,
by special permission permit any of the dimensions prescribed by
these 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.
45 WP 1884 of 2011 and group
38 Thus, in order to use the discretionary powers under section 64
(b) it is necessary for the party to show that there is demonstrable
hardship to the flat owners or the developer and if it is so, then special
permission to modify the dimensions prescribed by the Regulations can be
given but that relaxation should not affect health, structural safety of the
building and the other flat owners and also public safety of the residents of
the neighbourhood. There is another rider besides these two conditions in
use of discretionary powers i.e. the dimensions prescribed by these
regulation to be modified except those relating to floor space indices
unless otherwise permitted under the Regulation. The modifications in
respect of FSI is an exception unless otherwise permitted under the
Regulation. This rider cannot be read in isolation. The rider is to be read in
association with "there should be demonstrable hardship". Thus, if any
demonstrable hardship is faced, then only the discretionary power can be
used by the Municipal Commissioner. Thus in purport of Regulation 64(b),
can the present case in respect of giving permission to Lily Ponds and deck
parking be considered as covered under the Regulation? The Municipal
Commissioner is required to deal with this aspect while deciding on Lily
Ponds and deck parking.
39 So far as the order of the Commissioner regarding the
46 WP 1884 of 2011 and group
security deposit is concerned, it is required to be noted that if there is any
security deposit, naturally it is required to be refunded. If it is to be treated
as premium, as argued by Mr.Singhvi, there is no question of returning the
same, as there is no provision for refund of premium under the
Development Control Regulations. If it is directed to be refunded, such an
order can be passed at the stage of granting C.C.or even at the later stage
as the question is required to be decided by the Commissioner as per the
provisions of the Act and Regulations. What was passing in the mind of the
Commissioner cannot be decided by us and the same is to be decided by
the Commissioner. The Commissioner is required to take in mind the
provisions of the DC Rules in order to find out whether such deposit can
be refunded or not. Simply because if construction is contrary to the
sanctioned plan, whether the Commissioner can pass such an order that it
is likely to be misused in future, is the question which is required to be
decided by the Commissioner. This aspect is also required to be decided
by the Commissioner de novo.
40 As we have already dealt with, it would be just and proper to
direct the Commissioner to have say of the flat owners before he takes
fresh decision on the basis of this order. It may be true that the
Commissioner may not have knowledge about the contents of such
47 WP 1884 of 2011 and group
agreement, but atleast he knew that the third party interest is created and
ultimately the affected persons are the flat purchasers. No order can be
passed which may have civil/evil consequences without hearing to such
affected persons. In view of the same, we direct the petitioners to
nominate one person on their behalf who may represent the case and on
behalf of the flat purchasers and it is not necessary for the Commissioner
to give hearing to each and every flat purchaser. Considering the said
aspect, the Commissioner is directed to hear one of the representative of
the flat owners as well as the respondent No.3 before taking decision as
indicated in the order. The parties may initially appear before the
Commissioner on 5th January,2012 between 11.00 a.m. to 1.00 p.m. and
thereafter, appropriate date can be given for giving hearing and after
hearing the concerned parties, the Commissioner may take decision
expeditiously and in any case, within a period of four months, as there are
voluminous documents on record and in view of the ensuing Municipal
Election. The Commissioner is required to take into account various
provisions of D.C.Rules and the submissions of both the sides as well as
the record of the case.
41 It will be open to the Commissioner to call for any further
information from the parties and even for calling necessary agreements
48 WP 1884 of 2011 and group
and to consider the contents of such agreements entered into by the flat
owners with the builders. The Commissioner to pass appropriate order as
deemed fit and in accordance with law and the Commissioner is free to
take decision as he deemed fit as per law and it should not mean that we
have expressed any opinion on the merits of the case and such decision
should be strictly in accordance with law, which may include whether the
Commissioner has any such power of asking deposit in a subsequent stage
and whether it is permissible, as well as the effect of granting special
permission under the DC rules and whether the construction of lily ponds
can be said to be an architectural features. All these aspects are left for
the fresh decision of the Commissioner as per law.
42 In view of what has been stated above, the impugned order of
the Commissioner is set aside and the rule is partly made absolute to the
aforesaid extent accordingly.
( MRS.MRIDULA BHATKAR, J.) ( P.B.MAJMUDAR, J.)
49 WP 1884 of 2011 and group
