Bombay High Court
Husseinbhai M. Bagasrawalla And ... vs State Of Maharashtra And Others on 19 November, 2012
Bench: Dr. D.Y. Chandrachud, A.A. Sayed
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1655 OF 2012
Husseinbhai M. Bagasrawalla and others ..Petitioners.
versus
State of Maharashtra and others ..Respondents.
.....
Mr. Virag Tulzapurkar, Senior Advocate with Mr. Simil Purohit and Mr. Suraj
Juneja i/b M/s. Wadia Ghandy & Co. for the Petitioners.
Mr. D.A. Nalavade, GP for Respondents 1 and 2.
Mr. E.P. Bharucha, Senior Advocate with Mr. Vinod Mahadik for Respondents 3
to 5.
......
CORAM : DR.D.Y.CHANDRACHUD, and
ig A.A.SAYED, JJ.
19 November 2012.
ORAL JUDGMENT (PER DR.D.Y.CHANDRACHUD, J.) :
The Petitioners claiming to be owners of a plot of land bearing C.S.
No.3B/730 admeasuring 9514 sq. mtrs, situated at Pandit Madan Mohan
Malviya Marg, Tardeo, Mumbai, have inter alia challenged a decision of the
Municipal Corporation of Greater Mumbai, contained in a letter of the Chief
Engineer dated 5 May 2012 calling upon them to resubmit a proposal for
development in accordance with a notification of the State Government dated 19
March 2012. In consequence the Petitioners seek an order directing the
Municipal Corporation to revalidate a letter of intent for construction of a multi-
storied parking lot and a direction to the Municipal Corporation and its officers to
scrutinize and sanction the plans without reference to a proposed modification of
the relevant Development Control Regulations.
2. On 28 October 2008 the Municipal Corporation brought into effect the
provisions of Development Control Regulation 33(24). DCR 33(24)
contemplates the grant of permission for the construction of multi-storied parking
lots on the grant of an incentive FSI. The Petitioners submitted a proposal on 14
January 2009 for the construction of a residential building together with the
construction of a multi-storied public parking lot thereon. As DCR 33(24) was
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originally framed, there was no restriction on the height of a public parking
amenity to be provided by a developer against the grant of incentive FSI. DCR
33(24) inter alia provided as follows :
"(24) Development of multistoried/ parking lots - With previous approval
of Government, for development of multi-storied / parking lots on any plot
abutting the roads and/or stretches of road, additional FSI, as specified
below on built up parking area created handed over to MCGM free of cost,
shall be allowed on the land belonging to the private owners, which is not
reserved for any public purposes."
3. The conditions which were appended to the Regulation provided for a
minimum plot area, the constitution of a committee for considering the proposals,
grant of incentive FSI (over and above the FSI permissible under other
provisions of the Regulations) and the total maximum permissible FSI. The
proposal submitted by the Petitioners received the in-principle approval of the
Government of Maharashtra on 20 May 2010. Following this the Municipal
Corporation issued a letter of intent on 19 October 2010 for the development of a
public parking lot under DCR 33(24) comprising of 1024 public parking spaces.
After the insertion of DCR 33(24) the Municipal Corporation as the planning
authority took cognizance of the fact that in the absence of height restrictions, it
would be open to a developer to construct a building for housing a parking lot in
the form of a multi-storied tower which when constructed may not be even fully
utilized by the public. The developers were to be granted an incentive FSI
nonetheless for having constructed a multi-storied parking lot. An administrative
circular was issued by the Municipal Commissioner on 22 June 2011 under
which inter alia a cap was sought to be introduced in respect of the height which
would be permissible for the construction of a public parking amenity. The
Petitioners instituted before this Court a writ petition under Article 226
challenging the administrative circular. On 23 February 2012 a Division Bench of
this Court, while disposing of the petition recorded the following statement made
on behalf of the Corporation :
"The Corporation will not proceed with any action pursuant to the Circular
dated 22.6.2011 in respect of the petitioners. The Corporation shall move
the State Govt. by 27/2/2012 for appropriate modification of the relevant
Development Control Regulation. The Corporation shall process the
application of the petitioners for Public Parking Lot after Six weeks from
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today and complete the process within Eight weeks thereafter in
accordance with law including the modified Development Control
Regulation."
4. The Division Bench accordingly disposed of the petition by directing that
the administrative circular dated 22 June 2011 shall not be implemented as
stated before the Court and that the plans submitted by the Petitioners will be
processed and considered in accordance with law.
5. On 19 March 2012 the State Government issued a notification under
Section 37 of the Maharashtra Regional Town Planning Act 1966 ('the Act')
proposing to modify DCR 33(24) and for that purpose invited suggestions and
objections. The proposal for modification envisaged that the height of a public
upper floors.
parking amenity shall be restricted to three basements, a ground floor and four
A premium was envisaged to be paid by developers. The
notification in its concluding paragraph dealt with those cases where permissions
have already been granted under the Development Control Regulations of 20
October 2008. The circular made the following provision :
"All the developments which have been given permission as per the
DC Regulations of October 20, 2008, except those which have
progressed substantially, will have to follow the regime of the amended
33(24) and will have to pay the premium of 50% of what they would
otherwise have to pay as per the new regime."
6. Under Section 46 of the Act, the planning authority in considering an
application for permission shall have due regard to the provisions of any draft or
final plan or proposal published by means of notice, submitted or sanctioned
under the Act. Since the proposal for a modification of DCR 33(24) has been
published, a letter was issued by the Chief Engineer of the Municipal Corporation
to the Petitioner to resubmit its proposal in a manner consistent with the
notification dated 19 March 2012.
7. In assailing the communication issued by the Chief Engineer of the
Municipal Corporation, learned Senior Counsel appearing on behalf of the
Petitioners submits that :
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i) The notification of the State Government dated 19 March 2012 carves out
an exception in respect of those developments which had "progressed
substantially" and these words must comprehend not just physical
construction, but other aspects where a developer has made substantial
commitments by incurring investments;
ii) DCR 33(24) and the planning permission of the planning authority granted
under Section 45 operate in different fields. Whether there has been
substantial progress must be considered only from the perspective of
DCR 33(24) and is not restricted to whether or not construction has been
carried out;
iii) In the present case, it has been specifically averred in ground (k) of the
Petition that the Petitioners have created third party rights, settled tenants
in alternate accommodation and obtained permissions and approvals
including those of the SEIAA and expenses of Rs.33.58 Crores have been
incurred. Hence, though no construction has physically been initiated
since a commencement certificate is yet to be granted, that will have no
bearing on whether substantial progress has been made within the
meaning of the notification dated 19 March 2012.
8. On the other hand, it has been urged on behalf of the Municipal
Corporation by learned Senior Counsel that :
i) Even when the Division Bench of this Court disposed of the earlier petition
on 23 February 2012, the Municipal Corporation had in its statement
made it clear that while the earlier administrative circular would not be
enforced, the Corporation will be moving the State Government for
modification of the Development Control Regulations which is why the
Corporation was required to process the application after the completion
of a period of six weeks and complete the process within eight weeks
thereafter;
ii) DCR 2(2) specifically incorporates the meaning of the expressions which
are defined inter alia in the Act. Section 2(7) would make it abundantly
clear that the expression "development" has to be construed in the
context of the actual work of development such as by the carrying out of
buildings, engineering or other operations in or over lands or by making
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any material change in any building or in the use of land; and
iii) In the present case, admittedly no construction has been carried out. The
notification dated 19 March 2012 requires that all developments which
have been permitted under the Regulations of 20 October 2008 would
have to follow the regime of the proposed new DCR 33(24) except those
which have progressed substantially. In the present case, no
development has been carried out at all and hence, the Municipal
Corporation was justified in requiring the Petitioners to resubmit their
plans. At the same time, the Petitioners will be entitled to the benefit of a
reduced premium of 50% of what they would otherwise have been liable
to pay under the new regime.
9.
DCR 33(24) was introduced on 20 October 2008. Under DCR 33(24) the
construction of multi-storied parking lots had been envisaged subject to various
conditions including inter alia the grant of incentive FSI. In the island city the
maximum permissible FSI including additional FSI is an FSI of 4, whereas in the
suburbs and extended suburbs it is 3. In a judgment of this Court in Kohinoor
CTNL Infrastructure Company Private Limited v. The Municipal
Corporation of Greater Mumbai1, a Division Bench of this Court took note of
the reasons which impelled the Municipal Corporation to seek a modification of
DCR 33(24). To allow the construction of multi-storied parking lots without a
restriction of height would be self-defeating since while on the one hand a public
parking amenity beyond a certain height would not be used by the public, the
developers would stand to gain by the grant of an incentive FSI for the
construction of an amenity of that nature. Initially, the Municipal Corporation
sought to impose conditions in regard to inter alia the height of a public parking
facility by an administrative circular without a formal amendment to the
Development Control Regulations. When the earlier petition filed by the
Petitioners to these proceedings came up before the Division Bench, the
Corporation by its statement which was recorded by the Court on 23 February
2012 made it abundantly clear that while it would not enforce its administrative
circular, it would move the State Government for an appropriate modification of
the Development Control Regulations. Following this exercise, the State
1 Writ Petition 143 of 2012 decided on 9 July 2012.
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Government has now issued a notification on 19 March 2012. The maximum
permissible height of a public parking amenity is to be restricted under the
proposal to three basements, a ground floor and four upper floors. The payment
of a premium is also envisaged and there is a cap on the built up area per
parking space. The circular does take note of the fact that permissions may
have already been granted under DCR 33(24) as it originally stood. DCR 33(24)
required in the first instance the approval from the point of view of suitability of a
specially constituted committee and thereafter the previous approval of the State
Government. The notification envisages that all developments for which
permissions have been granted under the Development Control Regulations as
they stood on 20 October 2008 would also have to follow the regime of amended
DCR 33(24). However, an exception was carved out in respect of those
developments which have progressed substantially. In other words, the mere
fact that a permission has been granted at an anterior point of time would not
obviate the requirement of complying with the amended regulation unless
development has progressed substantially. In view of the provisions of Section
46, there can be no dispute about the position in law that the planning authority
while considering an application for permission is under an obligation to have
due regard to the provisions of any draft or final plan or even a proposal
published by means of a notice, submitted or sanctioned under the Act.
10. It is sought to be urged on behalf of the Petitioners that the expression
"progressed substantially" cannot be construed only to mean a situation where
construction has been carried out. While in the present case, it is not in dispute
that no construction has been carried out as a matter of fact, it has been urged
that other factors can be considered such as the steps which have been taken
by the developer in the form of the creation of third party rights or by incurring
expenses for the resettlement of tenants in alternate accommodation. Now while
assessing the submission it must be noted at the outset that DCR 2(2) stipulates
that expressions not defined in the Regulations shall have the same meaning as
in the Maharashtra Regional Town Planning Act 1966 or the Bombay Municipal
Corporation Act 1888 and the rules or bylaws framed thereunder as the case
may be, unless the context otherwise requires. Section 2(7) of the Act defines
the expression "development" as follows :
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"(7) "development" with its grammatical variations means the carrying out
of buildings, engineering, mining or other operations in or over or under,
land or the making of any material change, in any building or land or in the
use of any building or land or any material or structural change in any
heritage, building or its precinct and includes demolition of any existing
building, structure or erection or part of such building, structure of
erection; and reclamation, redevelopment and lay-out and sub-division of
any land; and "to develop" shall be construed accordingly."
11. When the expression "development" has been used in the Act, it has been
used so as to mean the carrying out of building, engineering or other operations
in or over or under land or the making of any material change in any building or
land or in the use of any building or land and includes the demolition of any
existing building or the erection of a building or structure. The mere creation of
third party rights, or the grant of approvals does not constitute development
within the meaning of Section 2(7). Essentially, what the notification dated 19
March 2012 envisages is that the regime of the proposed modification must be
borne in mind even where permissions were granted under DCR 33(24) as it
stood on 20 October 2008 except where substantial progress has been attained.
Whether substantial progress has been achieved has to be construed with
reference to the development for which permission has been granted by the
competent authority. In the present case, it is an admitted position before the
Court that no development has been carried out at all and the work of
construction is yet to commence. The case therefore squarely does not fall
within the exception which is carved out by the last paragraph of the notification
dated 19 March 2012.
12. The present case must be clearly distinguished from the situation which
obtained before the Court in its decision in Kohinoor CTNL Infrastructure
Company (supra) rendered on 9 July 2012. That was a case where a notice to
show cause was issued under Section 51 calling upon the developer to explain
as to why a commencement certificate which had already been issued should
not be revoked. The judgment of the Division Bench notes that the Additional
Municipal Commissioner had in his order noted that in about 50% of the area,
construction had progressed "beyond the stage which can be termed
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substantial". Consequently, as a matter of fact, there was a clear determination
by the Additional Municipal Commissioner that substantial progress had been
achieved in the work of construction on the relevant date. The Additional
Municipal Commissioner, however, misdirected himself in applying the wrong
test viz. as to whether the work had been substantially completed on the site. As
the Court noted in its judgment of a total project cost of Rs.167 Crores for the
construction of a public parking lot consisting of a ground floor and 13 upper
floors, an expenditure of Rs.59.51 Crores had been incurred and the
construction of a ground floor and 4 upper floors including a basement had been
completed. In that context, the Court observed that the project in that case fell
within the exception which was carved out by the notification dated 19 March
2012. In that context the Court observed as follows :
"Significantly, the concluding part of the notification states that all the
developments which have been given permission in accordance with the
D.C. Regulations of 20 October 2008, "except those which have
progressed substantially", will have to follow the regime of the amended
D.C. Regulation 33(24) and would be governed by the payment of
premium to the extent stipulated in the notification. Hence, consistent with
the provisions of Section 51, the draft notification also recognises that
there may be projects which have progressed substantially before the new
norms have been published, after requisite sanctions were granted and
substantial progress was made in the work of development."
The facts of this case are clearly distinguishable in that no work of development
has been carried out at all.
13. We may also at this stage briefly deal with three other judgments which
have been referred to by the Petitioners. The judgment of the Delhi High Court
in The Tata Power Company Limited v. Union of India 2 turned on the issue of
delay and laches since in pursuance of the award of a contract pursuant to a
tender, substantial progress had been achieved in the implementation of the
project. In this view of the matter, the Delhi High Court declined to exercise its
jurisdiction under Article 226 of the Constitution. Similarly, the judgment of a
Division Bench of this Court in Dinoo Baji Todiwalla v. State of Maharashtra 3
dealt with a situation where in pursuance of a scheme for redevelopment under
2 Writ Petition (Civil) 62 of 2009 decided on 13 April 2009.
3 2011(3) Bom.C.R. 160.
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DCR 33(7), 285 out of 305 occupants had consented to the scheme; 235
occupants had vacated their structures. In this background, the Court held that
the process of redevelopment could not be allowed to be stalled by a dissenting
few occupants. The judgment of the Nagpur Bench in Mohan Gopalrao Mate
v. Principal Secretary4 held that the power conferred upon the State
Government under Sections 20 and 21 of the Urban Land (Ceiling and
Regulation) Act 1976 could not be utilized to nullify a sanction or building
permission granted by the planning authority under the Maharashtra Regional
Town Planning Act 1966. The judgment is on a clearly different issue, which
would not advance the case of the Petitioners.
14. In conclusion therefore we hold that since no work of development had
been carried out by the Petitioners in pursuance of the in-principle approval
granted by the State Government on 20 May 2010 and the letter of intent issued
by the Municipal Corporation on 19 October 2010, the Municipal Corporation
was justified in requiring the Petitioners to resubmit their proposal for
development in a manner that would be consistent with the notification that has
been issued by the State Government on 19 March 2012. The exception which
has been carved out by the notification dated 19 March 2012 is not attracted to
the facts of this case since this is not a case where the development had
progressed substantially within the meaning of the last paragraph of the
notification.
15. Before concluding, we may, however, record the submission of the
learned Senior Counsel appearing on behalf of the Petitioners that since the
State Government is in the process of considering the objections and
suggestions that may be received in pursuance of the notification dated 19
March 2012 and since no final notification has been issued at this stage,
submissions have not been addressed on the legality of such final notification
that may be issued in the future by the State Government. Since that aspect
does not fall for determination at this stage, we have not expressed any opinion
thereon. The legality of any final notification if one is issued by the State
Government will, it is needless to add, be considered at the appropriate stage,
4 2009(1) Bom.C.R. 275.
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should such an occasion arise. For these reasons, no case for interference has
been made out. The Petition is accordingly dismissed. No costs.
(Dr. D.Y. Chandrachud, J.)
(A.A.Sayed, J.)
