Bombay High Court
Adarash Cop-Op. Hsg. Soc.Ltd., ... vs Union Of India And Ors on 29 April, 2016
Bench: Ranjit More
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IN THE HIGH COURT OF JUDICATURE AT MUMBAI
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.369 OF 2011
1. Adarsh Co-op. Housing Society Ltd. )
A Society registered under Maharashtra )
Co-operative Societies Act, 1960, )
Having its address at : CTS No.652, )
Block VI, Colaba Division, )
Captain Prakash Pethe Marg, )
Adjacent to Backbay Bus Depot, Colaba )
Mumbai - 400 005. )
2. Tarakant Sinha )
Age : 55 years ig )
Member of Adarsh CHS Ltd., residing at )
Flat No.2801, Adarsh Co-operative )
Housing Soc., Capt.Prakash Pethe Marg, )
Colaba, Mumbai - 400 005. ) ... Petitioners
Vs.
1. Union of India
Through Ministry of Environment and )
Forests, Paryavaran Bhavan, )
CGO Complex, Lodh Road, )
New Delhi - 110 003. )
2. Mr. Jairam Ramesh )
Hon'ble Minister of State holding )
Independent Charge of Ministry of )
Environment and Forests, )
Union of India, New Delhi. )
3. Mr. Bharat Bhushan, Director, )
Ministry of Environment and Forests, )
Union of India, New Delhi. )
4. Dr. Nalini Bhat, Advisor and Competent )
Authority appointed by )
Ministry of Environment and Forests, )
Union of India, New Delhi. )
5. National Coastal Zone Management )
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Authority, having office at Ministry of )
Environment and Forests, )
Union of India, New Delhi. )
6. Maharashtra Coastal Zone Management )
Authority, having its office at Environment)
Department, Room No.217 (Annex), )
Mantralaya, Mumbai - 400 032. )
7. State of Maharashtra )
8. Secretary, Urban Development Department)
Government of Maharashtra. ) ... Respondents
Mr. Navroz Seervai, Senior Advocate a/w. Mr. Manish Desai, Mr. Saket
Petitioners.
Mone, Mr. Vishesh Kalra, Mr. Subit Chakraborti i/b. Vidhi Partners for
Mr. R. S. Apte, Senior Advocate a/w. Mr. Rui Rodrigues and Mr. Parag
Vyas for Respondent No.1-UOI.
Mr. D. J. Khambata, Senior Advocate a/w. Ms S. U. Deshmukh for
Respondent No.6.
Mr. Shailesh Shah, Senior Advocate a/w. Mr. B. H. Mehta, AGP for
Respondents No.7 and 8-State.
Mr. Harinder Toor a/w. Ms Prachi Sawant i/b. M. V. Kini & Co. for BEST.
Mr. Sanjay Kadam with Ms Apeksha Sharma, Applicant in Chamber
Summons No.147 of 2011.
CORAM : RANJIT MORE & R.G.KETKAR, JJ.
Reserved on : 2ND DECEMBER, 2016
Pronounced on: 29TH APRIL, 2016
JUDGMENT: (PER R. G. KETKAR, J.)
By administrative order dated 25.08.2015 passed by the Hon'ble
the Chief Justice, this Special Bench was reconstituted for hearing of
above Petition and other connected matters from the Division Benches
available at Original / Appellate Side. In pursuance thereof, we have
heard Mr. Navroz Seervai, learned Senior Counsel for petitioners,
Mr. R. S. Apte, learned Senior Counsel for respondent No.1, Mr. Daraius
Khambata, learned Senior Counsel for respondent No.6, Mr. Shailesh
Shah, learned Senior Counsel for respondents No.7 and 8 and Mr. Toor,
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learned Counsel for BEST at length. At the request and by consent of
the parties, the Petition is taken up for final hearing.
2. This Petition is instituted by Adarsh Co-operative Housing
Society Limited (for short 'Adarsh Society') and one of its members
under Article 226 of the Constitution of India against respondent No.1 -
Union of India, Ministry of Environment and Forests (for short
'MOEF'), respondent No.2 - Mr. Jayram Ramesh, the then Hon'ble
Minister of State holding independent charge of MOEF, respondent
No.3 - Dr. Bharat Bhushan, Director, MOEF, respondent No.4 - Dr.
Nalini Bhat, Advisor and Competent Authority appointed by MOEF,
respondent No.5 - National Coastal Zone Management Authority (for
short 'NCZMA'), respondent No.6 - Maharashtra Coastal Zone
Management Authority (for short 'MCZMA'), respondent No.7 - State of
Maharashtra and respondent No.8 - Secretary, Urban Development
Department (for short 'UDD'), Government of Maharashtra.
3. By this Petition, petitioners have challenged -(i) recommendations
made in the minutes of the 20th meeting of NCZMA convened on
11.11.2010 (exhibit-C, pages 81-85), (ii) show cause notice dated
12.11.2010 (exhibit-D, pages 89-95) issued by the respondent No.3 - Dr.
Bharat Bhushan, Director MOEF, (iii) report dated 13.01.2011 (exhibit-
E, pages 96-118) of respondent No.4 - Dr. Nalini Bhat, Advisor and
Competent Authority appointed by MOEF, (iv) order dated 14.01.2011
(exhibit-F, pages 333-335) passed by respondent No.3 - Dr. Bharat
Bhushan, Director, MOEF, and (v) order dated 16.01.2011 (exhibit-G,
pages 336-337) passed by the respondent No.2-Mr. Jayram Ramesh, the
then Hon'ble Minister, MOEF. The relevant and material facts, albeit
topic-wise, giving rise to the filing of the present Petition, briefly stated,
are as under:
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(A) Notifications, Correspondence relating to C.R.Z.
4. In exercise of powers conferred by Section 3(1) and Section 3(2)
(v) of the Environment (Protection) Act, 1986 (for short 'E.P.Act') and
Rule 5(3)(d) of Environment (Protection) Rules, 1986 (for short
'E.P.Rules'), MOEF issued Notification on 19.02.1991 (for short '1991
Notification') declaring coastal stretches as Coastal Regulation Zone (for
short 'CRZ') prohibiting and regulating activities under the CRZ.
Paragraph 2 thereof prohibits activities enumerated in clauses (i) to (xiii)
within CRZ. Paragraph 3 thereof provides for regulation of permissible
activities. Paragraph 4 thereof lays down the procedure for monitoring the
enforcement. Paragraph 6(2) of Annexure-I lays down norms for
regulation of activities.
5. On 27.09.1996, MOEF approved Coastal Zone Management Plan
(for short 'CZMP') for Maharashtra. MOEF issued Notification dated
09.07.1997 (for short '1997 Notification), amending the 1991
Notification. On 12.11.1997, Principal Secretary to Government of
Maharashtra addressed a letter to the Municipal Commissioner of
Municipal Corporation of Greater Mumbai (for short 'Corporation')
wherein it was clarified that the total development permission cannot be
stopped in CRZ area. Municipal Commissioner was requested to
scrutinize the proposals as per 1991 Notification, subsequent letters
dated 27.09.1997 and 1997 Notification. It was further set out therein
that the development proposals within a CRZ area in which investment
exceeds rupees five crores should only be referred to State Government
for clearance and other proposals should be cleared by the Corporation
as per the approval of the Government of India, MOEF Notification and
letter.
6. On 08.09.1998, MOEF issued letter clarifying the expression
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"Existing Authorized Buildings". In exercise of powers conferred by
sub-sections (1) and (3) of Section 3 of the E.P.Act, the Central
Government issued order on 26.11.1998 constituting MCZMA
consisting of various officials for a period of 2 years with effect from
date of publication of that order in the Official Gazette. The Secretaries
of Department of Environment and UDD, Government of Maharashtra,
among others were the members of the MCZMA. On 19.01.2000,
MOEF approved the revised CZMP of Greater Mumbai. By order dated
04.01.2002, the Central Government reconstituted MCZMA consisting
of various officials for a period of 3 years with effect from the date of
publication of that order in the Official Gazette.
ig The Principal
Secretaries of Department of Environment and UDD, among others
were the members of MCZMA.
7. To the same effect, orders were passed on 02.09.2005 and
31.12.2008 reconstituting MCZMA with effect from the date of
publication of that order in the Official Gazette for a period of three
years. Principal Secretary / Secretary, Environment Department and
Principal Secretary / Secretary, UDD, Government of Maharashtra,
among others were members.
8. In the meantime, in exercise of the powers conferred by Section
3(1) and 3(2)(v) of the E.P. Act read with Rule 5(3) and (4) of the E.P.
Rules, the Central Government issued Notification on 22.04.2003 (for
short "2003 Notification") as it was of the opinion that the 1991
Notification should be amended with a view to preventing further
ecological damages. On 06.01.2011, CRZ Notification was published
(for short "2011 Notification").
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B) Relevant Development Control Regulations and Notifications
9. In 1967, the Development Control Rules for Greater Bombay
were sanctioned by the State Government (for short '1967 DCR') and
FSI as far as land bearing CTS No.652, Block VI, Colaba Division,
Captain Prakash Pethe Marg, adjacent to Backbay Bus Depot, Colaba,
Mumbai - 400 005 (for short 'subject plot') was 3.5. On 10.06.1977,
Notification was issued by the Bombay Metropolitan Region
Development Authority (for short 'BMRDA') restricting the permissible
FSI in the municipal limits of Corporation to 1.33. The said Notification
was to have effect for a period of two years from the date of its issue.
On 05.10.1989, BMRDA issued Notification restricting the permissible
FSI in the municipal limits of Corporation to 1.33. The said Notification
was to have effect and be in force until 10.10.1991. By Notification
dated 20.07.1990, the State Government sanctioned separately that part
of the draft plan of 'A' Ward as shown in Schedule II annexed thereto,
subject to the modifications specified in the Schedule I thereto annexed,
which shall be final Development Plan for the 'A' Ward and fixed
01.09.1990 to be the date on which the final Development Plan of 'A'
Ward of the Island City (excluding the said excluded part of the draft
Plan of 'A' Ward as shown in Schedule II) was to come into force.
10. On 20.02.1991, the final development plan as also the
Development Control Regulations for Grater Mumbai, 1991 were
sanctioned (for short '1991 DCR') and they were brought in force with
effect from 25.03.1991. On 10.04.2002, UDD of Government of
Maharashtra in exercise of powers conferred under sub-section (2) of
Section 37 of the Maharashtra Regional and Town Planning Act, 1966
(for short 'M.R.&T.P. Act') sanctioned the proposed reduction of Captain
Prakash Pethe Marg from 60.97 mtrs to 18.40 mtrs and the area so
deleted was included partly in residential zone (marked as A-B-C-D,
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subject plot), partly included in Parade Ground (marked as G-H-I-J),
partly included in Helipad and Garden area (marked as E-F-G-H) and
partly included in BEST Depot (marked as C-D-E-F). In exercise of
powers vested under Section 50(1) of the M.R.&T.P. Act, Government
of Maharashtra issued Notification dated 03.03.2006 sanctioning the
proposal of deletion of reservation of the Bus Depot on land adjacent to
plot No.87-C of B.B.R.Block No.6 admeasuring about 2661,68 sq.mtrs.
and including the same in the residential zone subject to certain
conditions.
C. CORRESPONDENCE
11. On 03.08.2000, Adarsh Society addressed a letter to the Hon'ble
Chief Minister of Maharashtra, who was at the relevant time also the
Urban Development Minister, for deletion of the proposed road in
military area. On 05.10.2002, Mr. P. V. Deshmukh, Deputy Secretary,
UDD, Government of Maharashtra addressed a letter to the Secretary,
MOEF requesting the latter to issue NOC for development of subject
plot. On 02.12.2002, Dr. A. Senthil Vel, Joint Director of MOEF
addressed a letter to Mr. P. V. Deshmukh, Deputy Secretary, UDD,
Government of Maharashtra. On 04.01.2003, Mr. P. V. Deshmukh,
Deputy Secretary, UDD, Government of Maharashtra addressed a letter
to the Joint Director of MOEF enclosing therewith the documents
sought for by letter dated 02.12.2002. On 11.03.2003, Dr. A. Senthil
Vel, Joint Director, MOEF addressed a communication to Mr. P. V.
Deshmukh, Deputy Secretary, UDD, Government of Maharashtra. On
15.03.2003, Mr. P. V. Deshmukh, Deputy Secretary, UDD, Government
of Maharashtra addressed a communication to the Chief Engineer
(Development Plan) of Corporation.
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D) Allotment of land and permissions from the Planning
Authority:
12. On 18.01.2003, Government of Maharashtra issued Letter of
Intent (LOI) proposing to allot the subject plot on lease or on the basis
of the occupancy rights on terms and conditions to be decided by the
Government in due course. On 09.07.2004, the Government allotted
land to Adarsh Society on payment of Rs.10,19,19,652/- subject to
conditions. Possession was handed over to the petitioners on
04.10.2004. On 05.08.2005, Revenue and Forests Department of
Government of Maharashtra sanctioned use of FSI of 2669.5 sq.mtrs. of
plot in use of BEST to Adarsh Society on payment of premium of
Rs.6,14,02,640/-. On 06.09.2005, commencement certificate was issued
by Mumbai Metropolitan Region Development Authority (for short
'MMRDA') upto the plinth level. On 23.09.2005, Intimation of
Disapproval (IOD) was issued by the Corporation to the Adarsh Society.
13. On 22.12.2005, Chief, City and Area Planning Department of
MMRDA addressed a communication to the Principal Secretary,
Revenue and Forests Department, Government of Maharashtra soliciting
the decision of the Government on the points set out therein as regards
construction of residential building of Adarsh Society on the subject
plot. On 11.06.2007, in pursuance of IOD issued by the Corporation,
MMRDA issued commencement certificate for construction of building
on the subject plot. The Commencement Certificate was renewed on
22.01.2008 and 04.08.2010 for various stages of construction. On
21.04.2010, No Objection Certificate was issued by the Chief Fire
Officer (CFO) of the Corporation. On 16.09.2010, MMRDA issued
occupation certificate. In pursuance of various permissions, Adarsh
Society has constructed building consisting of stilt plus two level
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podium plus 28 upper floors with built up area of 8401 sq.mtrs. on the
subject plot.
E) Show Cause Notices, Replies and the Impugned Orders:
14. On 03.11.2009, direction was issued by MCZMA to Adarsh
Society under Section 5 of the E.P. Act calling upon it to submit the
necessary documents of permission / clearance obtained from different
statutory authorities including MCZMA within 15 days of the receipt of
the said direction, failing which, it will have no option but to initiate
appropriate legal action against Adarsh Society under the provisions of
the E.P. Act. The said direction was issued on the basis of the complaint
received from Shri Simprit Singh of National Alliance of People's
Movements (NAPM).
15. On 17.12.2009, Adarsh Society gave reply denying the contents
of the complaint. It was asserted that it had obtained all necessary
approvals from High Rise Committee, MMRDA, BMC and CFO. In
this connection, it was intimated that approval includes an approval
from the Government of India, MOEF, New Delhi and Government of
Maharashtra, UDD concerning to CRZ. Copies of the approval dated
11.03.2003 of MOEF, Government of India and communication dated
15.03.2003 of UDD, Government of Maharashtra were enclosed. It was
further set out that in case the copies of the other approvals from
MMRDA, BMC and CFO are required, they will be supplied
immediately on demand.
16. On 25.10.2010, report appeared in Times of India to the effect
that Adarsh Society did not have CRZ clearance. On 27.10.2010,
Environment Department of Government of Maharashtra submitted
interim report to the Director, MOEF as regards violation of CRZ
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Regulations by Adarsh Society. On 30.10.2010, MMRDA revoked the
Occupation Certificate issued by it on 16.09.2010. On 02.11.2010,
Bombay Electric Supply and Transport (BEST) disconnected electricity
supply on the basis of notice dated 31.10.2010. On 02.11.2010,
Corporation issued notice for disconnection of water supply and the
same was disconnected on 03.11.2010. MCZMA convened its 66 th
meeting on 03.11.2010 for discussion of the violation of CRZ norms by
Adarsh Society, MCZMA concluded the violations committed by the
Adarsh Society and decided to refer the case of CRZ violation to MOEF
for further action. On 11.11.2010, meeting of NCZMA was convened
where violations of CRZ Notification by Adarsh Society was taken up at
Agenda No.4 as an item under "Any other item with the permission of
Chairman" and it was decided that Adarsh Society did not have CRZ
clearance and recommended removal of building constructed on the
subject plot by Adarsh Society.
17. On 12.11.2010, MOEF issued notice under Section 5 of the E.P.
Act to the Adarsh Society to show cause within 15 days "as to why the
unauthorized structure erected by the Adarsh Society should not be
removed forthwith in its entirety". On 24.11.2010, Adarsh Society,
through its Advocate, submitted interim reply and sought four weeks
extension to file a detailed reply together with supporting documents.
On 15.12.2010, a detailed reply was filed by Adarsh Society through its
Advocate. On 04.01.2011, respondent No.4 - Dr. Nalini Bhat, Advisor
and Competent Authority, appointed by MOEF, gave hearing. On
10.01.2011, Adarsh Society filed written submissions. On 13.01.2011,
respondent No.4 - Dr. Nalini Bhat submitted report recommending
removal of the building of Adarsh Society in its entirety. On
14.01.2011, order was issued by the respondent No.3 - Mr. Bharat
Bhushan, Director, MOEF directing demolition of building of Adarsh
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Society on the basis of report dated 13.01.2011 of respondent No.4 - Dr.
Nalini Bhat. On 16.01.2011, respondent No.2 - Mr. Jayram Ramesh, the
then Hon'ble Minister of State for Environment ordered demolition of
building. Thus, the petitioners have challenged the aforesaid actions /
decisions by way of present Petition instituted under Article 226 of the
Constitution of India.
18. The petitioners have inter alia challenged the decisions / actions
principally on the following grounds:
a. The impugned actions / orders are clearly premeditated and
predetermined based on perceptions and whims and fancies of the
officers and the minister and are not objective. The actions and the
decisions impugned clearly amount to being unreasonable, arbitrary and
capricious.
b. The respondents have to take into consideration relevant
factors and cannot take into consideration irrelevant and extraneous
factors. The impugned actions / orders are vitiated on these grounds.
c. The impugned order is based on the report dated
13.01.2011 made by the respondent No.4 - Dr. Nalini Bhat. The said
report was not furnished to the petitioners, which amounts to a complete
denial of opportunity to controvert / disapprove the facts, contentions
and conclusions in the report.
d. The report of the respondent No.4 is solely based upon the
minutes of the meeting of NCZMA dated 11.11.2010 and the purported
statements of Shri T. C. Benjamin, Principal Secretary, UDD,
Government of Maharashtra and Shri Kunte, Principal Secretary,
Revenue and Forests Department, Government of Maharashtra. The
purported statements were not made or recorded in the presence of the
petitioners and the reliance on the statements without giving opportunity
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of cross-examination amounts to breach of principles of natural justice.
e. Impugned orders proceeded on the premise that petitioners
have not obtained environmental clearance from the appropriate
authority, which is contrary to the material on record.
f. Impugned orders proceeded on the premise that petitioners
have exceeded permissible FSI of 1.33 and that petitioners cannot utilize
FSI of BEST plot while carrying out construction over the subject plot,
which is also contrary to the material on record.
g. Before considering the three options by respondent No.2
and passing the impugned order, petitioners were not heard. The order
was passed by the respondent No.2, who was not a part of the panel.
h. Every facet of principles of natural justice is violated by
the respondents.
19. On behalf of the respondent No.1 - Union of India, Mr.
Thirunavukarasu, Deputy Director, MOEF has made affidavit dated
24.03.2011. In substance, it is contended that the communications dated
11.03.2003 and 15.03.2003, individually and / or collectively, do not
constitute clearance under CRZ Notification. Under CRZ Notification,
construction of residential building in CRZ-II Zone requires prior
approval from MOEF. The recommendations of MCZMA were not
obtained. As against permissible FSI of 1.33, petitioners have consumed
FSI of 1.77 by loading additional FSI from the adjoining BEST plot,
which is not amalgamated.
20. On behalf of respondent No.6 MCZMA, Shri Bhagwantrao N.
Patil, Principal Secretary, MCZMA has made affidavit dated 21.06.2011.
In substance, it is contended that the State level planning authorities can
process the building proposals only after MCZMA gives its
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recommendations. The clearance of MOEF was required in respect of
the activities with investment exceeding Rs.5 crores excepting those
activities which are to be regulated by the concerned authorities at the
State / Union Territory level in accordance with the provisions of
paragraph 6, sub-paragraph (2) of Annexure I of the 1991 Notification.
The Central Government issued 2003 Notification withdrawing powers
from the State Government. The letters dated 11.03.2003 and
15.03.2003 do not constitute clearance. Thus, the building in question is
constructed without clearance of MOEF.
21. On behalf of respondents No.7 and 8, Shri Sanjay R. Kurve,
Deputy Director of Town Planning has made affidavit dated 14.07.2011.
In substance, it is contended that the letter dated 15.03.2003 of UDD
does not amount to grant of NOC under the CRZ Regulations. In fact,
that letter misinterpreted and misconstrued the letter dated 11.03.2003
issued by MOEF. In view of the Notification dated 04.01.2002, all
projects require the recommendations of the MCZMA before
environmental clearance could be given either by MOEF or by the
concerned State Government agency. Reliance was also placed on
clause 7 of the Letter of Intent dated 18.01.2003, which required Adarsh
Society to obtain prior permission from MOEF for undertaking the
construction. Even in the allotment letter dated 09.07.2004, condition
was stipulated to the effect that prior permission of MOEF should be
taken before any construction activity is carried out.
22. Petitioner No.2 Taraknath Sinha has made affidavit-in-rejoinder
dated 05.04.2011 in reply to the affidavit-in-reply of Shri E.
Thirunavukarasu, Deputy Director, MOEF. Dr. Bharat Bhushan,
Director, MOEF has made affidavit-in-surrejoinder dated 11.04.2011 in
reply to the affidavit-in-rejoinder dated 05.04.2011 of Mr. Taraknath
Sinha.
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SUBMISSIONS OF THE PETITIONERS
23. In support of this Petition, Mr. Seervai submitted that the subject
plot is situate in CRZ-II. The said fact is not disputed by any of the
respondents. Nobody says that the subject plot is in CRZ-I. He
submitted that 1991 Notification casts a responsibility on the local
authorities at the State level only to regulate the building and
construction activity with an investment exceeding Rs.5 crores. 1991
Notification further necessitated the regulation in accordance with the
norms provided in paragraph 6(2) of Annexure-I. However, by virtue of
paragraph 3(2), clearance from MOEF was necessary, inter alia, for
activities with investment exceeding Rs.5 crores. The 1997 Notification
restricted the requirement of clearance by MOEF in paragraph 3(2)(iv)
only to activities with investment exceeding Rs.5 crores and which are
not regulated by the concerned authorities at State / Union Territory
level in accordance with paragraph 6(2) of Annexure-I of the 1997
Notification.
24. He submitted that the activities which were to be regulated by the
concerned authorities at the State / Union Territory level as per
paragraph 6(2) of Annexure I of the 1997 Notification did not require
clearance from MOEF. Paragraph 6(2) provides that the development or
construction activities within the State will be regulated by the
concerned authorities at the State / Union Territory level. Thus, by
virtue of 1997 Notification, the MMRDA being the Special Planning
Authority for the area in which the building of the petitioners stands is
the concerned Regulating Authority and / or concerned authority within
the meaning of paragraph 3(2)(iv) and paragraph 6(2) of the 1997
Notification. Thus, the development / construction of petitioners'
building being regulated by MMRDA did not require clearance as per
paragraph 3(2)(iv) read with 6(2) of the 1997 Notification.
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25. Mr. Seervai further submitted that while issuing Notifications
from the year 1991 to 2011, MOEF has categorically carved out
prohibited activities in different paragraphs under the Notifications. The
expression "clearance" will not encompass or include the expression
"prohibition" as these words are used to express different things and
cannot be treated synonymous. MOEF has also used the expression
"regulation" for those activities which are neither prohibited, nor
required clearance. Thus, by using 3 different phrases, MOEF intended
to give different meanings to these 3 phrases. In other words, it is not
the intention of the MOEF to include the word "clearance" within the
expression "regulation". He invited our attention to the meaning of the
words "regulate" and "clearance" from - (i) Concise Oxford English
Dictionary, 11th Edition, Revised and (ii) Collins Dictionary of English
Language, 2nd Edition.
26. Mr. Seervai submitted that in the 1991 Notification, expressions
"clearance" and "regulation" are used. When the subordinate legislation
uses two different expressions, namely, clearance and regulation,
obviously, they cannot mean the same thing. He submitted that the
concept of regulation and clearance are two different concepts. In short,
he submitted that the 1997 Notification does not require approval or
clearance from MOEF or the agencies entrusted to clear such projects,
as the case may be. Under the 1997 Notification, what is required is the
Regulation by such authorities at the State or Union Territory level, as
the case may be, under the relevant provisions of law governing such
Regulation namely, Mumbai Municipal Corporation Act, 1888,
M.R.&T.P. Act, MMRDA Act, Maharashtra Land Revenue Code, 1966
(for short 'MLRC'). Such regulation would include inter alia the grant
of permission for development, construction such as IOD, CC, OC, etc.
from the Planning Authorities.
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27. He alternatively submitted that assuming that environmental
clearance is required for carrying out construction activities in the
subject plot which admittedly falls in CRZ-II, the said clearance is
obtained from both the MOEF and UDD.
28. He has taken us through the correspondence starting from
05.10.2002 and ending with 15.03.2003. He submitted that
communication dated 11.03.2003 constitutes environmental clearance
from MOEF. The communication dated 15.03.2003 of UDD,
Government of Maharashtra constitutes clearance of the State
Government for undertaking development in CRZ-II. At any rate, the
communications dated 11.03.2003 and 15.03.2003 collectively
constitute environmental clearance. On 05.10.2002, Deputy Secretary,
UDD of Government of Maharashtra addressed a communication to the
Secretary, MOEF. It was set out therein that the State Government had
modified the sanctioned Development Plan of Backbay Reclamation
area reducing the width of 60.97 mtr. wide road to 18.40 mtr. road and
proposed to allot some land deleted from road to Adarsh Society subject
to 1991 Notification. As per the CZMP for Corporation area sanctioned
by MOEF vide letter dated 19.01.2000, the subject plot is situate in
CRZ-II category and is situate between the existing Backbay
Reclamation BEST Bus Depot and of existing road. The development is
permissible as per the Development Control Regulations prevailing as
on 19.02.1991. The infrastructure facilities, such as, electricity, water
supply, drainage, etc. are also in existence. The subject plot is situate on
the west side of the Captain Prakash Pethe Marg on which is
development for residential and commercial purposes is in existence.
Considering these facts, the State Government has decided to allot the
subject plot to Adarsh Society for residential development. Request
was, therefore, made for issuing NOC for development of the subject
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plot. The documents such as application of Adarsh Society, part plan of
Development Plan showing plot under reference, HTL and CRZ
categorization were enclosed.
29. On 02.12.2002, Dr. A. Senthil Vel, Joint Director, MOEF
acknowledged receipt of that letter and stated that the HTL and CRZ
categorization of the area is not received. A request was also made to
send the plot boundary superimposed on the approved revised CZMP of
Grater Mumbai indicating the presence of authorized structure or road
(existed prior to 19.02.1991) abutting the proposed site on the seaward
side. In response to this letter, the Deputy Secretary, UDD, State of
Maharashtra forwarded the desired information and necessary
documents on 04.01.2003 indicating existence of structure prior to
19.02.1991 and abutting the proposed site on the seaward side.
30. Petitioners have filed additional affidavit dated 22.09.2015 made
by Mr. R.C.Thakur, Secretary and Authorized Representative of the
petitioners, enclosing therewith note dated 10.03.2003 of Dr. A. Senthil
Vel. It is submitted that perusal of the note shows that the documents
forwarded by UDD were considered. After considering these
documents, the note records that as per the CZMP approved by MOEF
on 19.01.2000, the subject plot is situate in CRZ-II and is located
between the existing bus depot and the road. Government of
Maharashtra has indicated that the proposed development is permissible
under the CRZ Notification. Government of Maharashtra have sought
NOC from MOEF as there is a change in land use, that is, some portion
of the road proposed in the Development Plan is being converted into
residential complex. MOEF requested Government of Maharashtra
(letter dated 02.12.2002 addressed by Dr. A. Senthil Vel to the Deputy
Secretary, UDD) to indicate if the subject plot falls in CRZ-II area and is
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located behind an authorized structure. In the same letter, a request was
made to the Government of Maharashtra to send a map superimposing
the subject plot on the approved revised CZMP indicating the presence
of the authorized structure. A letter is received from the Government of
Maharashtra (dated 04.01.2003) enclosing the plot boundary on the
CZMP. As per the map, subject plot falls behind an authorized structure.
The note further records that the issue pertains to changes in the land use
plan in CRZ-II area on the landward side of the authorized structure.
The CRZ Notification does not make any reference to the changes in
land use within the CRZ-II area. Hence, MOEF have no objection to the
constructions as long as the FSI for the proposed construction is as
existed on 19.02.1991.
31. Relying heavily on this note, Mr. Seervai submitted that MOEF
examined the proposal and was fully satisfied that the proposal is in
order. He submitted that 1991 Notification read with 1997 Notification
requires MOEF to ensure that the building is permitted only on the
landward side of the existing road (or roads proposed in the approved
CZMP of the area) or on the landward side of the existing authorized
structures. Buildings permitted on the landward side of the existing and
proposed roads / existing authorized structures shall be subject to the
existing local Town and Country Planning Regulations including the
existing norms of Floor Space Index / Floor Area Ratio.
32. He submitted that as per letter dated 08.09.1998 of MOEF, the
expression "Existing Authorized Buildings" means those buildings of a
permanent nature that were existing prior to 19.02.1991 and were
constructed in accordance with the building regulations and bye-laws in
vogue prior to 19.02.1991, and had received necessary sanctions
including commencement and occupation certificates from the
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concerned local authority prior to 19.02.1991. Further, the construction
of buildings, including expansion and reconstruction, should be in
accordance with the FSI / FAR norms and all other Town and County
Planning regulations, including maximum permissible density, height,
zoning, etc. that were prevalent and in force as on 19.02.1991. The
phrase building means a permanent fixed structure with a roof forming
an enclosure and providing protection from the elements.
33. He submitted that it is not in dispute that the proposed
construction on the subject plot was on the landward side. It is also not
in dispute that on the BEST depot plot, there exists authorized building
since long, and in any case, prior to 19.02.1991. The communication
dated 02.12.2002 was addressed to the UDD calling upon it to submit
information relating to HTL and CRZ categorization of the area as also
the plot boundary superimposed on the approved revised CZMP of
Greater Mumbai indicating the presence of authorized structure or road
(existed prior to 19.02.1991) abutting the proposed site on the seaward
side. This was precisely with a view to ensuring that the construction
proposed by the petitioners meets the requirements laid down in the
1991 and 1997 Notifications.
34. Mr. Seervai submitted that the note dated 10.03.2003 reflects the
following things:
(i) the subject plot falls behind the authorized structure;
(ii) MOEF has no objection to the proposed construction as
long as the FSI for the proposed construction is as existed
on 19.02.1991.
35. Mr. Seervai, therefore, submitted that after examining the
proposal submitted by UDD, MOEF recorded its satisfaction as also
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recorded that it has no objection to the proposed constructions as long as
the FSI for the proposed construction is as existed on 19.02.1991. The
exercise, which was required to be undertaken under the 1991 and 1997
Notifications, was undertaken and no objection was recorded in the Note
dated 10.03.2003. Mr. Seervai submitted that MCZMA is delegate of
MOEF. What delegate (MCZMA) can do can be done by the delegator
(MOEF). Thus, MOEF gave clearance to the proposed construction.
36. Mr. Seervai submitted that by communication dated 04.01.2003,
Deputy Secretary, UDD forwarded desired information and necessary
documents to the Joint Director, MOEF. The MOEF, by its letter dated
11.03.2003 informed the State of Maharashtra that the MOEF had
already delegated its powers to the State Government for undertaking
development in CRZ-II and accorded its no objection for the proposed
construction to come up on the designated land as per 1991 Notification
(as amended from time to time) and the approved revised CZMP of
Greater Mumbai. The relevant extract of the said letter reads thus,
"This Ministry has already delegated the powers to the concerned
State Government for undertaking development in Coastal
Regulation Zone-II. Accordingly, the proposed construction may
be taken up as per the Coastal Regulation Zone Notification 1991
(as amended from time to time) and the approved revised Coastal
Zone Management Plan of Greater Mumbai."
37. In pursuance thereof, on 15.03.2003, Mr. P. V. Deshmukh, Deputy
Secretary, UDD addressed a letter to the Chief Engineer (Development
Plan) of Corporation setting out in detail the background. It was further
set out therein that MOEF have communicated their no objection to
allow the residential development since it falls within CRZ-II area which
satisfied the norms of Notification dated 19.02.1991 and amendments
made therein upto 21.05.2002. Now there appears, therefore, no
objection to allow residential development to Adarsh Society on the land
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included in residential zone as per Notification sanctioned by the
Government. The copy of letter of MOEF dated 11.03.2003 was
enclosed therewith for ready reference.
38. In any case, he submitted that having regard to note dated
10.03.2003, communications dated 11.03.2003 and 15.03.2003
individually and collectively constitute clearance / permission of
MOEF / UDD respectively. These communications are required to be
considered when they were written. The conclusion that project received
NOC from CRZ point of view is inescapable. The building constructed
on a subject plot has all the permissions of appropriate statutory
authorities. It is only after seven years, based on newspaper reports, the
proceedings were initiated against the petitioners.
39. Mr. Seervai submitted that after considering the chain of
correspondence starting from 05.10.2002 and culminating into
15.03.2003, it is impossible to suggest that the communications dated
11.03.2003 of MOEF and 15.03.2003 of UDD do not constitute
clearance / permission from CRZ point of view from the appropriate
authorities.
40. Mr. Seervai submitted that in exercise of powers conferred by
sub-sections (1) and (3) of Section 3 of the E.P. Act, the Central
Government issued order on 26.11.1998 constituting MCZMA
consisting of various officials for the period of 2 years with effect from
date of publication of that order in the official Gazette. The said order
conferred powers on MCZMA as enumerated in paragraphs II to XII. In
supersession of Notification dated 26.11.1998, MCZMA was
reconstituted on 04.01.2002. MCZMA was empowered to take
measures enumerated in clauses II to XV. Clause VIII thereof
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authorized MCZMA to examine all projects proposed in CRZ areas and
give their recommendations before the project proposals are referred to
the Central Government or the agencies who have been entrusted to
clear such projects under the 1991 Notification. The "examination of
projects" contemplated by the said paragraph cannot and does not
envisage some amorphous all encompassing enquiry in exercise of
general powers available to MOEF under the E.P. Act. Order dated
04.01.2002 requires MCZMA only to examine the projects with a view
to ensuring compliance of the conditions of the approved CZMP and to
giving their recommendations. It is therefore, obvious that such
recommendation will be given only in cases where MOEF or agencies
entrusted to clear such projects, as the case may be, is required to give
such approval or clearance under the applicable Notification issued
under the E.P. Act.
41. He submitted that in the present case, it is admitted position that
there was no change in the classification of the CRZ area. In other
words, there was no change from CRZ-I to CRZ-II or from CRZ-III to
CRZ-II or from CRZ-IV to CRZ-II. Paragraph II(i) is, therefore, not
applicable. Mr. Seervai has invited our attention to the chart and
submitted that the power to recommend for project proposals was
conferred on the MCZMA only between- (i) 04.01.2002 and 03.01.2005
and (ii) 02.09.2005 and 30.09.2008, that is hardly for 6 years. This also
shows that MOEF did not attach great importance on the MCZMA or its
recommendations, and are, therefore, not mandatory. On the other hand,
what MOEF intended was regulation of construction activities by the
authorities at the State / Union Territory level in accordance with the
norms laid down in paragraph 6(2) of Annexure-I of the CRZ
Notification.
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42. Mr. Seervai submitted that the contention of the respondent No.6
that MCZMA would have looked into issues such as FSI, amalgamation
of plots, zoning, permissible FSI, etc. is thoroughly misconceived and
the same is entirely belied by the language of order dated 04.01.2002
reconstituting the MCZMA. On the contrary, these issues are required
to be considered by the appropriate regulatory authorities at the State /
Union Territory level under the relevant statutory provisions. As a
matter of fact, in the present case, all these issues have been considered
by the Corporation, MMRDA, State Government being the appropriate
regulatory authorities before issuing the IOD, CCs and OCs. The case
made out by MOEF / MCZMA about 'clearance' and 'recommendation'
is thoroughly misconceived and is a bogey and red-herring, trotted out
as an after-thought - 7 years after the event, as a part of the pre-
determined and pre-conceived / planned decision to hold that the
construction of the building was 'illegal'. He submitted that recently
this Court in NSCI judgment (PIL No. 71 of 2010) has held that
clearance issued by UDD without the recommendations of MCZMA is
valid and legal. He, therefore, submitted that the MCZMA
recommendation is clearly a bogie put up by the respondents.
43. Mr. Seervai submitted that on 20.07.1990, Government of
Maharashtra sanctioned final Development Plan under Section 31(1) of
the M.R.&T.P. Act in respect of 'A' Ward where the subject plot is
situate. The said Plan was brought into force with effect from
01.09.1990. The draft Development Control Regulations of 1989 (for
short '1989 DCR') will be applicable and not 1967 DCR. He submitted
that in the case of Suresh Estate Vs. Municipal Corporation of Greater
Mumbai1, the Apex Court was dealing with property in 'C' Ward in
respect of which no final Development Plan was in force at relevant
time. In short, he submitted that the decision in the case of Suresh
1 (2007) 14 SCC 439
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Estate1 is not applicable. He relied upon Sections 22(a), (m) and 46 of
the M.R.&T.P. Act and submitted that Development Control Regulations
are integral part of the Development Plan. On coming into force of the
final Development Plan in respect of 'A' ward w.e.f. 01.09.1990, 1967
DCR ceased to apply qua subject plot. In other words, he submitted that
on the date when 1991 Notification was issued, 1989 DCR were
applicable and not 1967 DCR. He relied upon the following decisions:
a. Nariman Point Association Vs. State of Maharashtra 2, and in
particular paragraph 11 thereof.
b. D. B. Reality Limited Vs. State of Maharashtra 3, and in
particular paragraphs 22 to 25.
c. M. A. Panshikar Vs. State of Maharashtra 4, and in particular
paragraph 14.
44. He submitted that in exercise of powers conferred under sub-
section (2) of Section 37 of the M.R.&T.P. Act, UDD of Government of
Maharashtra issued Notification dated 10.04.2002 sanctioning the
proposed reduction of Captain Prakash Pethe Marg from 60.97 mtrs. to
18.40 mtrs. and the area so deleted was included partly in residential
zone (marked as A-B-C-D, subject plot).
45. Mr. Seervai submitted that the BEST plot was allotted by
memorandum dated 05.08.2005. The subject plot and the BEST plot are
owned by the Government of Maharashtra. Thus, it was a single plot.
There was no sub-division of plot, and therefore, there was no question
of amalgamation of plots. No provision / resolution / circular / DCR is
referred that requires amalgamation of plot for consumption of FSI. The
authorities below, however, erroneously held that no MOEF clearance
was taken for amalgamating BEST plot admeasuring 2669 sq.mtrs. and
2 2003 (5) Bom.C.R. 273
3 WP No.366 of 2014 and other companion Petitions decided by Mohit S.
Shah, CJ and M. S. Sanklecha, J. on 05.02.2015.
4 2002 (5) Bom.C.R.318
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there was breach of condition No.2 of memorandum dated 05.08.2005.
In exercise of powers vested under Section 50(1) of the M.R.&T.P. Act,
Government of Maharashtra issued Notification dated 03.03.2006
sanctioning the deletion of the reservation of the bus depot on the land
adjacent to plot No.87-C of B.B.R.Block No.6 admeasuring about
2661.68 sq.mtrs. and including the same in the residential zone subject
to certain conditions.
46. The permissible FSI was 1.33 subject to exemptions. MMRDA
rightly applied 1989 DCR. He submitted that in the affidavit dated
13.01.2011 made in Writ Petition No.2407 of 2010, by Mr. Pradeep
Murlidhar Yadav, Senior Planner in the Town and Country Planning
Division of MMRDA, it is specifically averred that permissible FSI on
the subject plot as per 1967 DCR is 3.5 and as per 1989 DCR, the
permissible FSI is 1.33. As the FSI is the governing factor in
determining the intensity of the overall development and considering the
spirit of CRZ Regulation issued in 1991, MMRDA restricted the FSI to
1.33 using the stringent of two Development Control Regulations. Mr.
Seervai submitted that notifications dated 10.06.1977 and 05.10.1989
are wholly irrelevant. Nobody other than MMRDA can speak with
authority about the applicability of Development Control Regulations.
Mr. Seervai submitted that the building does not exceed the permissible
FSI, and therefore, there is no FSI violation.
47. Mr. Seervai submitted that every facet of the principles of natural
justice is violated in the present case. MCZMA convened its 66 th
meeting on 03.11.2010. Perusal of the minutes of this meeting shows
that the proposed demolition order was drafted by the Environment
Department. However, as per the opinion of the Law Officer, before
issuing the proposed demolition order, it was necessary that the
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Environment Department requests UDD to provide a detailed report on
CRZ permission and development permission from the concerned
authorities. He submitted that MCZMA had already made up its mind.
48. Mr. Seervai submitted that NCZMA convened its 20 th meeting on
11.11.2010. In that meeting Ms Valsa Nair, respondent No.3 - Dr.
Bharat Bhushan, respondent No.4 - Dr. Nalini Bhat and Dr. A. Senthil
Vel of MOEF were present. Petitioners were not aware that respondent
No.3, respondent No.4, Dr. A. Senthil Vel and Mr. Thirunavukarasu
were participating in this meeting. These officers have made up their
mind and were disqualified to attend the subsequent proceedings. In
support of this proposition, he relied upon the following decisions:
a. Oryx Fisheries (P) Ltd. Vs. Union of India 5; &
b. Kumaon Mandal Vikas Nigam Ltd. Vs. Girja Shankar Pant 6;
49. He submitted that from perusal of the order dated 14.01.2011,
bias is writ large. He submitted that Dr. Bharat Bhushan could not have
issued show cause notice. He could not have proposed draft order and
further could not have passed the final order on 14.01.2011. Dr. Nalini
Bhat could not have submitted report as she had participated in the
meting of NCZMA convened on 11.11.2010. These officers had made
up their mind and hearing given by Dr. Nalini Bhat was an empty ritual.
Respondent No.3 - Dr. Bharat Bhushan, respondent No.4 - Dr. Nalini
Bhat, Dr. A. Senthil Vel and Mr. Thirunavukarasu, all these officers,
acted at the behest of the respondent No.2. The impugned show cause
notice / report / orders are at the behest of the respondent No.2. The
wording of show cause notice dated 12.11.2010 shows that respondent
No.3 had made up his mind. When the quasi-judicial authority acts at
the behest of some other authority, its order is vitiated. In support of this
5 (2001) 13 SCC 427
6 (2001) 1 SCC 182
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proposition, he relied upon C.I.T. Vs. Green World Corporation7, and in
particular paragraphs 53 and 55 to 57. In the present case, Dr. Bharat
Bhushan acted at the behest of the respondent No.2 Minister.
50. Mr. Seervai submitted that apart from Dr. Nalini Bhat being
disqualified as having attended NCZMA meeting on 11.11.2010,
presence of other three members, namely, Dr. Bharat Bhushan, Dr. A.
Senthil Vel and Mr. Thirunavukarasu renders the hearing bad. They had
prejudged the issue, and therefore, their action is vitiated. In support of
this proposition, he relied upon Institute of Chartered Accountant Vs.
L. K. Ratna8, and in particular paragraphs 24, 25 and 28. The show
cause notice, so called hearing, report and order are vitiated by presence
of Dr. Bharat Bhushan, Dr. Nalini Bhat, Dr. A. Senthil Vel and Mr.
Thirunavukarasu in NCZMA meeting convened on 11.11.2010. In
support of this proposition, he relied upon A. K. Kraipak Vs. Union of
India9, and in particular paragraphs 15 to 21 and Rattanlal Sharma Vs.
Managing Committee, Dr. Hariram (Co-Edn.) H. L. School 10, and in
particular paragraphs 7 to 12.
51. Petitioners have also challenged the order dated 14.01.2011
passed by the respondent No.3 - Dr. Bharat Bhushan. Mr. Seervai
submitted that by order dated 30.09.2009, respondent No.4 - Dr. Nalini
Bhat was authorized to hear the petitioners. The order shows that
respondent No.3 - Dr. Bharat Bhushan, Mr. Thirunavukarasu and Dr. A.
Senthil Vel were to assist respondent No.4 during the course of hearing.
Though respondent No.4 - Dr. Nalini Bhat heard the petitioners, the
order is passed by the respondent No.3 - Dr. Bharat Bhushan. The
principle that "he who hears must decide" is flagrantly violated.
7 (2009) 7 SCC 69
8 (1986) 4 SCC 537
9 (1969) 2 SCC 262
10 AIR 1993 SC 2155
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Statutorily, only one person was authorized to hear the petitioners. The
other three persons did not afford hearing. Only respondent No.4-Dr.
Nalini Bhat could have passed the order. On this ground alone, the
order dated 14.01.2011 passed by the respondent No.3 - Dr. Bharat
Bhushan is liable to be quashed and set aside.
52. Mr. Seervai submitted that in the affidavit of Dr. Bharat Bhushan,
he denied that he was not part of the panel. In other words, he was part
of the panel, who heard petitioners on 04.01.2011. If he is part of the
panel to hear, it is contrary to notification dated 30.09.2009. The
proceedings before respondent No.4 - Dr. Nalini Bhat were of quasi-
judicial nature. If Dr. Bharat Bhushan claims to have heard petitioners,
he had no authority to hear the petitioners. He relied upon the following
decisions:
a. Automotive Tyre Manufacturer's Association Vs. Designated
Authority11, and in particular paragraphs 6, 20, 22, 79, 83 and 84;
b. Gullapalli Nageswararao Vs. Andhra Pradesh State
Transport Corporation12, and in particular paragraphs 30 and 31.
53. Mr. Seervai submitted that on 04.01.2011, respondent No.4 - Dr.
Nalini Bhat heard the petitioners. On 10.01.2011, petitioners filed
written submissions. On 13.01.2011, respondent No.4 - Dr. Nalini Bhat
submitted the report recommending removal of the entire building. The
said report was not given to the petitioners. No chance was given to the
petitioners to deal with the said report. Show cause notice dated
12.11.2010 relies upon the minutes of the NCZMA meeting held on
11.11.2010. The minutes record that the statements of 3 witnesses
namely Ms Valsa Nair, Chairman, MCZMA, Mr. T. C. Benjamin,
Member Secretary, UDD and Mr. Sitaram Kunte, Principal Secretary,
Revenue Department were relied in the meeting. In fact, the statements
11 (2011) 2 SCC 258
12 AIR 1959 SC 308
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are extensively relied without giving any opportunity to cross-examine
these three persons. In support of these submissions, he relied upon the
following decisions:
a. Meenglas Tea Estate Vs. Workmen 13, and in particular
paragraph 4;
b. Bareilly Electricity Supply Vs. Workmen 14, and in particular
paragraph 14;
c. Kishan Chand Chelaram Vs. Commissioner of I.T.15, and in
particular paragraph 6;
d. A. K. Roy Vs. Union of India 16, and in particular paragraph
96;
e. New India Assurance Company Limited Vs. Nusli Neville
Wadia17, and in particular paragraphs 45 to 47;
f. State of U.P. Vs. Saroj Kumar Sinha 18, and in particular
paragraphs 31, 32, 34, 35 and 38;
g. Dhakeswari Cotton Mills Limited Vs. C.I.T.19, and in particular
paragraphs 9 and 10.
54. Mr. Seervai submitted that Dr. Bharat Bhushan and Dr. A. Senthil
Vel were present at the time of hearing and somebody in the department,
who was admittedly not present, prepared the draft demolition order.
Orders / actions / minutes of meetings are vitiated, both, procedurally
and substantively. Record unmistakably shows that four officers
namely, respondent No.3 Dr. Bharat Bhushan, respondent No.4 Dr.
Nalini Bhat, Dr. A. Senthil Vel and Mr. E. Thirunavukarasu openly acted
on the dictates of respondent No.2. Mr. Seervai submitted that the
actions are also substantively ultra vires as respondent No.3 Dr. Bharat
Bhushan and respondent No.4 Dr. Nalini Bhat clearly abdicated their
13 AIR 1963 SC 1719
14 1971 (2) SCC 617
15 1980 (Supp) SCC 660
16 (1982) 1 SCC 271
17 (2008) 3 SCC 279
18 (2010) 2 SCC 772
19 AIR 1955 SC 65
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functions and powers and acted on the dictates of respondent No.2. They
fettered their discretion at the behest of the respondent No.2. The draft
demolition order was prepared prior to 03.11.2010 as is evident from the
minutes of MCZMA meeting dated 03.11.2010. The order dated
16.01.2011 records that there were three options available. However,
these three options were not recorded / noted in the show cause notice /
report / minutes of either MCZMA or NCZMA. Respondent No.2 came
to the conclusion that only one option, namely, removal of entire
structure was available. Respondent No.2 predetermined only one
option. This is evident from email sent by respondent No.2 to Mr.
Mauskar to prepare action papers of Adarsh Society for him. The order
dated 14.01.2011 passed by respondent No.3 Dr. Bharat Bhushan was at
the behest of respondent No.2 though it was signed by him. Mr. Seervai
relied upon the decision of the Apex Court in Union of India Vs.
Sanjay Jethi20, and in particular paragraphs 16, 33.5 to 36, 39, 41 to
43, 47 and 48.
55. Mr. Seervai submitted that the authorities have to act and take
independent decision. They cannot act at the behest of others. It also
amounts to abdication of power and duty and fettering of decision to that
of other. Respondent No.3 Dr. Bharat Bhushan could not have passed
the order though in the affidavit he said that he had passed the order.
Even if it is legal, it is the order of the Minister. Respondent No.2
Minister did not hear the petitioners. Mr. Seervai relied upon the
following decisions:
a. Anirudhasinhji Karansinhji Jadeja Vs. State of Gujarat 21,
and in particular paragraphs 11 to 15; and
b. Tarlochand Dev Sharma Vs. State of Punjab 22, and in
particular paragraphs 12, 13, 15 and 16;
20 (2013) 16 SCC 116
21 (1995) 5 SCC 302
22 (2001) 6 SCC 260
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c. SACI Allied Products Limited Vs. CCE 23, and in particular
paragraphs 16 to 18;
d. CCE Vs. Shital International24, and in particular paragraph
19.
e. Dharampal Satypal Limited Vs. Deputy Commissioner of
Central Excise25, and in particular paragraphs 37 to 42 .
56. Mr. Seervai submitted that the contention advanced on behalf of
MOEF that the decision in the present case is institutional decision is
contrary to the material on record, namely, order dated 30.09.2009 as
also affidavit of respondent No.3 Dr. Bharat Bhushan. He submitted
that the note below office order dated 30.09.2009 cannot be used as
enabling respondent No.2 to pass order. The note cannot be torn out of
context. It is the case of the respondents that respondent No.3 Dr.
Bharat Bhushan submitted the draft order for approval of the respondent
No.2 and thereafter he passed final order on 14.01.2011. Mr. Seervai
submitted that respondent No.3 Dr. Bharat Bhushan was exercising
quasi judicial power, and therefore, it amounts to subversion of quasi
judicial function. In support of this submission, he relied upon -
a) Union of India Vs. E. K. Andrews26, and in particular
paragraphs 2, 5, 7, 9 to 12 and 15;
b) Ossein and Gelatine Mfgrs. Assocn. of India Vs. Modi
Alkalies and Chemicals Limited 27, and in particular paragraph 5
thereof; and
c) Gullapalli Nageswararao12, and in particular paragraph
6 thereof.
57. Mr. Seervai submitted that order of MOEF is only on two issues
and it is impermissible to go into other issues. Judicial review under
Article 226 is proceedings either of administrative or quasi-judicial
23 (2005) 7 SCC 159
24 (2011) 1 SCC 109
25 (2015) 8 SCC 519
26 1996 (2) ILR 118 (Kerala)
27 AIR 1990 SC 1744
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nature. Order cannot travel beyond the show cause notice.
Jurisprudentially, a person has to deal with the show cause notice alone.
Courts have consistently held that it is impermissible for the
adjudicating authority to travel beyond the show cause notice. If the
order travels beyond the show cause notice, it is bad in law as it is in
violation of principles of ad alteram partem. In support of this
submission, he relied upon decision of Mohinder Singh Gill Vs. Chief
Election Commissioner28. The said decision is followed in the
following decisions:
Deepak Babaria Vs. State of Gujarat 29, and in particular
a.
paragraphs 62 to 65, 69 and 70;
b. Rashmi Metaliks Limited Vs. Kolkata Metropolitan
Development Authority30, and in particular paragraph 15;
c. All India Railway Recruitment Board Vs. K. Shyamkumar 31,
and in particular paragraphs 44 and 45 thereof;
d. Dharampal Satyapal Limited25.
58. Mr. Seervai submitted that on 03.11.2009, show cause notice was
issued by MCZMA. This was replied by the petitioners on 17.12.2009
by forwarding all the relevant documents and clearance. After satisfying
itself, MCZMA dropped the show cause notice.
59. Mr. Seervai submitted that Notifications dated 10.06.1977 and
05.10.1989 issued by MMRDA under Section 13(1) of BMRDA are not
relevant. Section 13 has nothing to do with limiting FSI. Section 13
talks of "undertaking any development within the Metropolitan Region
of the type". "Development of the type" has to be notified by the
MMRDA. He submitted that Section 13 does not apply to area where
MMRDA itself is a planning authority. In any case, MMRDA in its
28 (1978) 1 SCC 405
29 (2014) 3 SCC 502
30 (2013) 10 SCC 95
31 (2010) 6 SCC 614
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affidavit made in Writ Petition No.2407 of 2010 has gone on record in
asserting that the building of the petitioners is authorized. For all these
reasons, he submitted that the Petition deserves to be allowed and the
impugned show cause notice / recommendations made in the minutes of
the meeting / report / orders dated 14.01.2011 and 16.01.2011 deserve to
be quashed and set aside and the Petition deserves to be allowed.
SUBMISSIONS OF THE RESPONDENTS
60. On the other hand, Mr. Khambata, appearing for respondent No.6,
MCZMA supported the impugned actions and orders. He submitted that
in the present case, petitioners have not obtained recommendations of
MCZMA, which is a mandatory requirement as per order dated
04.01.2002 issued by MOEF. He submitted that the findings recorded in
the impugned orders are not vitiated. Rather, they are borne out by
record. The petitioners have constructed the building with brazen
illegalities and in fragrant violation of CRZ Notification. Having regard
to the conduct of the petitioners, even if it is assumed that there is
violation of principles of natural justice, this is not a fit case for
invocation of extra ordinary powers under Article 226 of the
Constitution of India. It is also necessary to examine the role of
bureaucrats and abuse and misuse of power by these bureaucrats. The
conduct of the petitioners is brazen, adamant and their attitude is defiant.
Petitioners have to plead and prove prejudice. The present Petition
raises serious environmental issues. When there is no clearance, the
illegality cannot be condoned as the officers of State Government had
turned blind eye or acted in connivance.
61. Mr. Khambata submitted that the questions that fall for
consideration are - (i) whether the communications dated 11.03.2003
and 15.03.2003 collectively constitute clearance; (ii) what is the effect
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of not obtaining recommendations of MCZMA and (iii) whether there
are FSI violations. He submitted that on behalf of the petitioners, it was
contended that it is not for the petitioners to show which DCR are
applicable. However, in the Petition, it is asserted that 1967 DCR are
applicable and that judgment of the Apex Court in Suresh Estate1 is
applicable. During the course of argument, petitioners conceded that the
plain language of communication dated 11.03.2003 does not amount to
clearance but communications dated 11.03.2003 and 15.03.2003
collectively constitute clearance. Petitioners contended that issue of FSI
violations does not arise. However, the impugned orders are based on
two grounds namely, (i) not obtaining clearance of the appropriate
authority and (ii) FSI violations.
62. Mr. Khambata submitted that recommendations of MCZMA are
mandatory. Admittedly, in the present case, recommendations of
MCZMA are not obtained. He submitted that on 27.09.1996, CZMP for
Maharashtra was approved by MOEF. As per paragraph 2A(i), all the
relevant provisions of 1991 Notification as amended in 1994 were
incorporated in CZMP. Paragraph 2A(xi) provides that Government of
Maharashtra or any other Authority so designated shall be responsible
for monitoring and enforcement of provisions of CRZ Notifications and
CZMP. He further submitted that before utilizing FSI of BEST plot
admeasuring 2669 sq.mtrs., petitioners did not fulfill the conditions. The
area of staircase, lift, lobbies together is about 2814 sq.mtrs. and to that
extent, petitioners have consumed excess FSI. 1967 DCR contemplate
inclusion of areas of lift room, staircase, lobby while computing FSI. As
against this, these areas are exempted under 1991 DCR.
63. Mr. Khambata submitted that 1991 Notification does not create
any dichotomy between regulation on one hand and clearance on the
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other. He submitted that a purposive interpretation of the 1991
Notification requires that 'regulation' and 'clearance' should be treated
at par and interchangeable. Any interpretation giving them different
meanings and scopes would undermine the effect of the CRZ
Notification and the regulation of the activities in the CRZ. A plain
reading of paragraph 3 of the 1991 Notification indicates that the CRZ
Notification itself treats the environmental clearance as one of the
aspects of regulation.
64. He submitted that the expression "regulation" is used in the CRZ
Notification in its natural and wide sense and encompasses and was
intended to encompass amongst other things, clearance. He submitted
that in any event, in law, the term "regulation" has a very wide meaning
and includes even a prohibition. "... in the absence of restrictive words
the power must be regarded as plenary over the entire subject. It implies
the power to rule, direct and control." In fact in statutes which are
meant to subserve a public purpose such as environmental and
conservational laws, the correct rule of interpretation is to give a wider
meaning to the term 'regulation'. By the 1991 Notification, as
originally issued, regulation of certain activities was vested exclusively
in the MOEF and for other activities such as those set out in paragraph
3(3)(ii) by "the State Government, Union Territory Administration or the
local authority as the case may be ...". These State/Union Territory
level authorities are vested with the full sweep of regulatory powers
including to give clearances and to prohibit activities that are in
violation of the CRZ Notification.
65. Mr. Khambata further submitted that 'clearance' and 'regulation'
are interchangeable. The regulation is a wider expression, which
includes clearance as also prohibition. In the alternative, if the clearance
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and regulation are to be given different meanings, regulation has a wider
meaning and will include clearance. The Court has to give purposive
interpretation and hold that clearance and regulation are same. In
support of these submissions, he relied upon the following decisions:
a. State of T.N. Vs. M/s. Hindstone32, and in particular paragraph
10 to contend that regulation under CRZ Notification will include
clearance as also prohibition.
b. K. Ramnathan Vs. State of T.N.33, and in particular paragraphs
18 and 19.
66. Mr. Khambata submitted that reliance placed by the petitioners on
the note dated 10.03.2003 prepared by Dr. A. Senthil Vel to contend that
it constitutes NOC is wholly misconceived. He submitted that note
dated 10.03.2003 is not a decision and is only a view point of the
concerned officer. In support of this proposition, he relied upon the
following decisions:
a. Sethi Auto Services Station Vs. DDA34, and in particular
paragraphs 14, 17 and 22;
b. State of Uttaranchal Vs. Sunil Kumar Vaish 35, and in
particular paragraph 24.
67. Mr. Khambata submitted that to read the word "regulated"
appearing in paragraph 3(3)(ii) as limited to the mere clerical activity of
determining whether a project is to the landward or seaward side of an
authorized existing structure or road is to deliberately trivialize the
regulatory role and to do violence to the plain language of the CRZ
Notification. It is a mis-characterization of the State / Local Authority's
CRZ regulatory function under the CRZ Notification (a similar attempt
to trivialize the MCZMA's CRZ recommendation was also attempted) to
divert attention from serious environmental issues that would have
32 AIR 1981 SC 711
33 AIR 1985 SC 660
34 (2009) 1 SCC 180
35 (2011) 8 SCC 670
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arisen during such consideration of an application from the Adarsh
Society for CRZ clearance including the FSI violation and violations of
conditions in the Letter of Intent dated 18.01.2003, the final Letter of
Allotment dated 09.07.2004, the Memorandum dated 05.08.2005 for use
of FSI of the adjoining BEST plot and the creation of the Adarsh plot
from a road reservation and its inclusion in the residential zone.
68. Mr. Khambata submitted that therefore, the argument that the
MCZMA recommendation is only in respect of those projects that
required clearance and not those that were merely to be regulated is
misconceived. In other words, he submitted that the contention
advanced by the petitioners that neither the environmental clearance of
MOEF nor the agencies entrusted to clear such projects at the State /
Union Territory level is required and that the recommendations of the
MCZMA are not necessary is devoid of substance and is liable to be
rejected. Mr. Khambata has taken us through the Chart showing the
Competent Regulatory Authority for CRZ-II for the different periods.
69. Mr. Khambata submitted that communications dated 05.10.2002,
04.01.2003 and 15.03.2003, copies whereof were not sent to MCZMA.
The contention of the petitioners that communication dated 15.03.2003
constitutes clearance by the State Level Authority is completely false.
The said letter is entirely based upon the communication dated
11.03.2003 of MOEF. Petitioners conceded that plain language of
communication dated 11.03.2003 of MOEF does not constitute
clearance. If that be so, petitioners cannot contend that communication
dated 15.03.2003 of Mr. P. V. Deshmukh, Deputy Secretary of UDD
constitutes clearance by the State Government. He further submitted
that the communications dated 11.03.2003 and 15.03.2003 collectively
do not constitute clearance. The said communications are behind the
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back of MCZMA.
70. Mr. Khambata invited our attention to affidavit dated 17.02.2011
of Mr. P. V. Deshmukh. He also invited out attention to further affidavit
dated 13.06.2011 made by Mr. P. V. Deshmukh before Justice J. A.
Patil's Commission of Inquiry. Mr. Khambata also invited our attention
to the cross-examination of Mr. Deshmukh.
71. Mr. Khambata submitted that considering the evidence of Mr.
Deshmukh before Justice J. A. Patil's Commission, it cannot be said that
the communication dated 11.03.2003 of MOEF can be construed as
clearance. Equally, communication dated 15.03.2003 of Deputy
Secretary, UDD also cannot be construed as a clearance of State
Government. The communications dated 11.03.2003 and 15.03.2003
collectively also did not constitute clearance under CRZ Notifications.
72. Mr. Khambata submitted that the copy of the communication
dated 15.03.2003 was earmarked to Adarsh Society. On the same day,
Chief Promoter of Adarsh Society addressed a letter to the Collector of
Mumbai enclosing therewith communication dated 11.03.2003 of
MOEF and 15.03.2003 of UDD.
73. Mr. Khambata submitted that on 18.01.2003, LOI was issued by
Revenue and Forests Department of State of Maharashtra intending to
allot occupancy rights in respect of plot No.87-C in BBR Block No.6
admeasuring 3758.82 sq.mtrs (subject plot) on lease subject to the terms
and conditions to be decided by the Government in due course. Clause
7 thereof required obtaining prior clearance of MOEF before carrying
out construction as a subject plot is in CRZ-II. On 09.07.2004, subject
plot was allotted to the petitioners subject to conditions. By condition
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No.2, petitioners were required to obtain prior permission of MOEF as
also MMRDA being the Special Planning Authority and Corporation
before carrying out construction as a subject plot falls in CRZ. He
submitted that petitioners were expressly put on notice to obtain
clearance from MOEF before carrying out construction. At no stage,
petitioners objected to these conditions on the ground that they had
already obtained clearance from the appropriate authority.
74. On 05.08.2005, petitioners claimed that they were allotted BEST
plot admeasuring 2669.68 sq.mtrs. adjacent to the subject plot as also
were permitted to utilize FSI of that plot. Clause 2 thereof laid down
that as the investment of project exceeds Rs.5 crore, permission of
MOEF for utilizing FSI of BEST plot is necessary. Clause 4 thereof
required compliance of the conditions laid down therein before utilizing
the FSI of BEST plot. In short, he submitted that permission of MOEF
was a condition precedent for utilizing FSI of BEST plot over the
subject plot. He submitted that clause VIII of order dated 04.01.2002
requires MCZMA to examine all projects proposed in CRZ areas and
give their recommendations before the project proposals are referred to
the Central Government or agencies who have been entrusted to clear
such projects under CRZ Notification of 1991. Had the proposal been
referred to MCZMA for its recommendation, it would have examined
these aspects before giving recommendations. As on 05.08.2005, the
power for giving clearance by the State Government was withdrawn by
the 2003 Notification. The power was restored to MOEF.
75. Mr. Khambata submitted that by Notification dated 03.03.2006
issued under Section 50 of M.R. & T.P. Act, the Government sanctioned
deletion of land admeasuring 2669.68 sq.mtrs., which was reserved for
BEST depot and included the same in the residential zone without
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obtaining sanction of MCZMA or MOEF. In other words, change of
reservation from BEST depot to residential by exercising power under
Section 50 of M.R.&T.P. Act in respect of the BEST plot admeasuring
2669.68 sq.mtrs. was without the sanction of MCZMA. He submitted
that by order dated 26.11.1998, MCZMA was constituted. MCZMA has
the power to take measures for protecting and improving the quality of
coastal environment and preventing, controlling and abating
environmental pollution in coastal areas of the State of
Maharashtra,which included examination of proposals for changes /
modification in classification of CRZ areas and also will ensure
compliance of all specific conditions that are laid down in the approved
CZMP. He submitted that on 10.04.2002, Notification was issued by
UDD under Section 37 of the M.R.& T.P. Act for reducing width of
Captain Prakash Pethe Marg from 60.97 mtrs. to 18.40 mtrs and
inclusion of the area so deleted, partly in residential zone (marked as A-
B-C-D - subject plot). In other words, residential plot was carved out
from the area, which was reserved as a DP Road in the Development
Plan. The said modification was carried out without the sanction of
MCZMA.
76. Mr. Khambata submitted that petitioners contended that MCZMA
had issued notice on 03.11.2009. This was replied by the petitioners on
17.12.2009. MCZMA was satisfied with the explanation given by the
petitioners and the show cause notice was dropped. He submitted that
the show cause notice was not dropped by MCZMA as is evident from
paragraph 12 of the affidavit dated 21.06.2011 made by Mr.
Bhagwantrao N. Patil, Member Secretary of MCZMA. He submitted
that the 66th meeting of MCZMA was held on 03.11.2010 and the
minutes were confirmed on 09.11.2010. He therefore, denied that
respondents and in particular MCZMA had suppressed the minutes of
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the meeting held on 09.11.2010.
77. Mr. Khambata submitted that MCZMA has been appointed as an
authority under Section 3 of the E.P.Act and is not a part, department /
delegate of MOEF. MOEF has constituted MCZMA to discharge duties
and functions as stated in the Notification. Section 24 of the E.P.Act has
overriding effect. MCZMA has to examine all the projects and give the
recommendations. UDD had kept MCZMA out. Not a single letter was
sent to MCZMA. MCZMA consists of experts whose recommendations
are necessary before the project is submitted to the Central Government
or other agencies. It is so to protect the citizens. In other words, he
submitted that recommendations of MCZMA are mandatory and are
condition precedent. In support of these submissions, he relied upon the
following decisions:
a. V. M. Kurian Vs. State of Kerala 36, and in particular
paragraphs 7 & 8;
b. Dinkar Anna Patil Vs. State of Maharashtra 37, and in
particular paragraphs 8 and 18; and
c. State of U.P. Vs. Manbodhan Lal38, and in particular
paragraph 7.
78. Mr. Khambata submitted that in the present case, the relevant
DCR applicable is DCR of 1967. He relied upon the decision of the
Apex Court in the case of Suresh Estate1, and in particular paragraphs
4, 17, 24 and 26 as also TCI Industries Limited Vs. State of
Maharashtra39, and in particular paragraph 20 and Official Trustee,
State of Maharashtra Vs. MHADA40.
36 (2001) 4 SCC 215
37 AIR 1999 SC 152
38 AIR 1957 SC 918
39 (2014) 3 Bom.C.R. 210
40 (2014) 3 Bom.C.R. 313
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79. Mr. Khambata submitted that Dr. Nalini Bhat heard the
petitioners on 04.01.2011. After the hearing, petitioners were handed
over a questionnaire containing 13 questions. The petitioners gave
written submissions on 10.01.2011. He invited out attention to the
response of the petitioners to questions 1 to 13. Question No.11 was
whether permission from MMRDA for the building exceeding FSI of
1.33 as per the Notification of BMRA Act 1974, dated 10.06.1977,
extended on 05.10.1989 which had validity upto 10.10.1991 was
obtained or not. The petitioners replied this by stating that as per the
approved plans, FSI consumed is only 1.32. As per the above referred
notification, MMRDA can allow FSI exceeding 1.33, upto cap of 3.5
which is permissible as per DCRs of 1967. Thus, the upper limit of FSI
is not altered but only prior permission from MMRDA is envisaged.
Hence, even if its assumed that FSI exceeds 1.33, due to adopting
different methodology of computation of FSI, the 28 storied building as
constructed on site is approved by MMRDA. Hence, the FSI as per any
methodology of computations of the constructed building is as per
DCRs of 1967, until it is within limit of 3.5, as the condition of approval
from MMRDA is satisfied. Mr. Khambata submitted that petitioners
nowhere pleaded that MMRDA has given approval under Notifications
dated 10.06.1977 and 05.10.1989 for construction beyond FSI of 1.33
and within 3.5 FSI. He invited our attention to paragraph 17 of the
affidavit dated 24.03.2011 made by Mr. Thirunavukarasu, Deputy
Director, MOEF. He submitted that petitioners have not obtained
special permission of MMRDA for exceeding 1.33 FSI.
80. Mr. Khambata submitted that by Notification dated 15.06.1983,
State of Maharashtra appointed MMRDA (the then BMRDA) as the
Special Planning Authority under Section 40(1)(c) of the MR&TP Act in
respect of the notified area of Back Bay Reclamation Scheme (BBRS)
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Blocks III-VI. MMRDA became the Planning Authority under Section
2(19) of M.R.&T.P. Act for that notified area. He submitted that
Corporation as also MMRDA undertook preparation of the Development
Plan. As far as Corporation is concerned, on 18.05.1983, notice was
published by Corporation under Section 25 of the M.R.&T.P. Act
inviting the objections / suggestions in respect of the revised draft
Development Plan for the 'A to G' Wards. The said notice was published
in the Gazette on 26.05.1983. On 30.03.1985, Corporation submitted
draft Development Plan under Section 30(1) of the M.R.&T.P. Act to the
State Government for sanction. At that time, Development Control
Regulations were not submitted to the State Government for sanction.
On 20.07.1990, the draft Development Plan submitted by the
Corporation in respect of 'A' Ward was sanctioned by the Government of
Maharashtra. In this Plan, subject plot was not shown but it showed
Captain Prakash Pethe Marg as 60.97 mtr. road. He further submitted
that no building bye-laws / regulations were sanctioned by the State
Government along with this Plan. On 30.04.1985, Corporation
submitted revised building bye-laws and Development Control Rules to
the Government of Maharashtra under Section 30(1) of the M.R.&T.P.
Act. On 14.12.1989, Government of Maharashtra by a Notification
under Section 31(1) of the M.R.&T.P. Act published the revised Draft
Plan, Building Bye-laws and Development Control Rules for Greater
Mumbai and invited objections and suggestions in respect thereof. On
20.02.1991, DC Regulations of 1991 were sanctioned, which came into
force with effect from 25.03.1991. Mr. Khambata submitted that thus
on 19.02.1991 being the date of CRZ Notification, the final DC
Regulations of 1967 were in force.
81. As far as MMRDA is concerned, on 01.03.1985, it declared its
intention to prepare the Development Plan for Blocks III-VI of the
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BBRS. On 04.05.1990, MMRDA notified the draft Development Plan
for Blocks III-VI of BBRS and invited objections and suggestions under
Section 26 of the M.R.&T.P. Act. On 08.10.1991, after following the
procedure under Section 28, MMRDA submitted the draft Development
Plan to the State Government. On 03.03.1993, Government of
Maharashtra returned the said Draft Development Plan to MMRDA with
a direction to resubmit the plan after incorporating certain modifications.
On 21st and 22nd July, 1994, MMRDA published further notices inviting
objections and suggestions. On 23.09.1994, the revised Draft
Development Plan for Blocks III-VI of BBRS was re-submitted by
MMRDA under Section 30(1) for sanction.
ig On 03.06.2000 and
17.06.2001, Government of Maharashtra sanctioned the Development
Plan prepared by MMRDA for Blocks III-VI of BBRA under Section
31. The Notifications had recital declaring that Corporation had ceased
to be Planning Authority for Blocks III-VI of BBRA on 15.06.1983.
The Development Plan came into force with effect from 24.07.2000.
82. Mr. Khambata submitted that nobody has disputed that
Corporation had submitted draft Development Plan on 30.03.1985 under
Section 30(1) of the M.R.&T.P. Act to the State Government for
sanction. At that time, draft DCR of 1989 were not submitted along
with the draft Development Plan. No final DCRs were sanctioned along
with sanction of draft Development Plan on 20.07.1990. In short, he
submitted that as on 19.02.1991 being the date of CRZ Notification,
final DCR of 1967 were in force. The decision of the Apex Court in the
case of Suresh Estate1 will apply. He further submitted that there
cannot be two Planning Authorities for the same area. In support of this
proposition, he relied upon the Division Bench judgment of this Court in
the case of Vyankatesh Y. Shinde Vs. State of Maharashtra 41, and in
particular paragraph 6 thereof. He also relied upon the decision of
41 2010 (5) Bom.C.R.815
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Nariman Point Association2, and in particular paragraph 3 thereof.
83. Mr. Khambata submitted that the decision in Suresh Estate's
case1 was considered by the Division Bench of this Court in TCI
Industries Limited39. In particular, he relied upon paragraphs 5, 21, 29
and 30 of that decision.
84. Mr. Khambata submitted that on 10.04.2002, the Government of
Maharashtra issued Notification sanctioning reduction of the width of
Captain Prakash Pethe Marg from 60.97 mtrs. to 18.40 mtrs. and the
area so deleted was proposed to be included partly in residential zone,
partly in parade ground and partly in helipad and garden area and partly
in BEST depot as shown in the accompanying plan. The area so
included in the residential zone and marked as 'A-B-C-D' (subject plot)
was the plot created for the first time for allotting it to Adarsh Society.
He invited our attention to PR Card of the subject plot. In column 10,
name of person in beneficial ownership was to the following effect:
(A) Government of Maharashtra
(B) Adarsh Co-operative Housing Society Limited (subject plot)
85. As far as the PR Card of the BEST plot is concerned, in column
No.10, Government of Maharashtra is shown as the person in beneficial
ownership. In short, he submitted that the name of Adarsh Society was
not recorded in column No.10 of PR Card of the BEST plot, and
therefore, it cannot be said that BEST plot was allotted to the petitioners.
Petitioners were allowed to utilize FSI of the BEST plot.
86. Mr. Khambata submitted that on 05.08.2005, Government of
Maharashtra issued memorandum permitting additional FSI of 2669.68
sq.mtrs. to be utilized by loading from adjacent BEST plot subject to
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conditions. Clause A(1) provided that as the land comes under
classification of CRZ and the same has been designated as BEST depot
vide notification dated 10.04.2002 of UDD, Government of
Maharashtra, unless the amendment is made as residential zone in it by
changing the designation of "BEST Depot" on the said land, the FSI of
the said land cannot be used on the adjacent plot (subject plot)
sanctioned to Adarsh Society. Clause A(2) provided that as the said land
comes in CRZ, construction on it, will be permissible subject to the
terms and conditions of DCR existing as on 19.02.1991. Similarly, if
the cost of the project is more than Rs.5 crores, it will be necessary for
the Society to obtain permission of MOEF. Clause A(4) provided that
after the fulfillment of the above conditions, FSI of BEST plot can be
utilized over the subject plot.
87. Mr. Khambata submitted that Adarsh Society has neither applied
nor obtained MOEF permission. Despite that, MMRDA sanctioned
plans on the basis of utilization of a total built up area of 8401 mtrs.,
which includes FSI of 3315.57 sq.mtrs. from the BEST plot. He
submitted that BEST plot was not amalgamated with the subject plot. In
fact, by memorandum dated 05.08.2005, petitioners were permitted to
use FSI of the BEST plot subject to the prior permission of MOEF as
also MMRDA. As the subject plot and BEST plot are two separate
plots, FSI of one plot namely BEST plot cannot be utilized on the
another plot namely, the subject plot. As there was no amalgamation of
two plots, FSI of BEST plot cannot be utilized. It is not the case of the
petitioners that there is order of amalgamation of two plots. The BEST
plot and the subject plot are two separate plots with two separate
Cadestral Survey Number. Property cards bear this fact out.
88. Mr. Khambata submitted that before changing the reservation of
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the subject plot from DP Road to residential zone, prior permission of
MCZMA was not obtained. He submitted that before changing the
reservation, permission of MCZMA was a condition precedent. In
support of these submissions, he relied upon the decision of this Court in
the case of Sneh Mandal CHSL Vs. Union of India42, and in particular
paragraphs 8, 18 and 21. He submitted that area in the DP Road was
converted into partly in residential zone among others. MCZMA could
have gone into following aspects:
1) User of FSI of BEST plot in the subject plot;
2) Which DCR is applicable for carrying our development over
the subject plot as also what FSI is permissible;
3) Use of FSI as per memorandum dated 05.08.2005 and
notification dated 03.03.2006;
4) Change of zoning;
5) Valid permission of the State Government;
6) Whether Section 50 can be applied for utilization of FSI of
BEST plot over the subject plot.
89. In short, he submitted that the recommendations of the MCZMA
is not a clerical job and has to consider serious aspects as the matter
pertains to environmental issues.
90. Mr. Khambata also relied upon the following decisions to submit
that if the Court comes to the conclusion that the building constructed by
Adarsh Society is illegal, what should be the approach of the Court:
a. MI Builders Private Limited Vs. Radhey Shyam Sahu 43, and
in particular paragraph 82;
b. Shanti Sports Club Vs. Union of India 44, , and in particular
paragraphs 74 and 75; &
42 AIR 2000 Bombay 121
43 AIR 1999 SC 2468
44 (2009) 15 SCC 705
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c. Esha Ekta Apartments CHSL Vs. Municipal Corporation of
Mumbai45, , and in particular paragraphs 46 and 56.
91. Mr. Khambata submitted that petitioners did not pray to
regularize the illegal construction. The attitude of the petitioners is
totally defiant. They did not point out which DCR is applicable. Mr.
Khambata also extensively dealt with the contentions advanced by the
petitioners as regards breach of the principles of natural justice. He
submitted that assuming for the sake of argument, without conceding,
that petitioners argument that there is infirmity in the procedure has
substance, one has to consider the consequences of breach of principles
of natural justice. He submitted that rules of natural justice are not rigid
and depend upon the facts and circumstances of each case. Court has to
consider whether the petitioners were given fair and reasonable
opportunity to put up their case. Whether the petitioners suffered any
prejudice in view of some irregularity committed during the course of
the proceedings. The Court has also to consider that petitioners have
invoked extra-ordinary jurisdiction of this Court under Article 226 of the
Constitution of India. Petitioners have not shown clearance of MOEF or
State level authorities. Petitioners have also not shown that they have
obtained recommendations from MCZMA. Petitioners have also not
complied conditions of LOI dated 18.01.2003, allotment letter dated
09.07.2004, memorandum dated 05.08.2005. They have exceeded
permissible FSI.
92. In support of his submissions, he relied upon the following
decisions:
a. S. L. Kapoor Vs. Jagmohan46, and in particular paragraphs 16
and 17;
45 (2013) 5 SCC 257
46 AIR 1981 SC 136
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b. Managing Director, ECIL Vs. B. Karunakaran47, at page
1092 sub-paragraph (v);
c. State Bank of Patiala Vs. S. K. Sharma 48, and in particular
paragraphs 28 and 33 (5);
d. Haryana Financial Corporation Vs. Kailas Chandra Ahuja 49,
and in particular paragraph 21 and submitted that petitioners have
to plead and prove the prejudice;
e. SBI Vs. Bidyut Kumar Mitra50, and in particular paragraph 40;
and
f. Union of India Vs. Alok Kumar51, and in particular paragraphs
85 to 90.
93. Mr. Khambata invited our attention to paragraph 9 of the Petition
of natural justice.
raising grounds, and in particular grounds relating to denial of principles
He submitted that petitioners neither pleaded
prejudice nor proved the prejudice. For example, petitioners strenuously
contended that report prepared by Dr. Nalini Bhat was not given to
them. Even after getting the report, petitioners have not pleaded what
prejudice was caused to them by not supplying the report. Had the
report been given to them in advance, they would have established
obtaining clearance as also case of utilizing permissible FSI. No such
attempt is made by the petitioners. In ground (u), petitioners merely
asserted as under:
"u) The petitioners state that at the behest of certain vested
interest certain reports/documents have been highlighted by the
media engineering a situation creating a bias in the mind of the
general public as well as the respondents. The petitioners state
that the petitioner has not been given a proper opportunity of
hearing and place on record certain facts / documents /
permissions to any of the governmental authorities till date and an
adverse action has been taken against the petitioner causing
serious prejudice to the livelihood of the members of the
petitioner."
47 AIR 1994 SC 1074
48 (1996) 3 SCC 364
49 (2008) 9 SCC 31
50 (2011) 2 SCC 316
51 (2010) 5 SCC 349
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94. Mr. Khambata submitted that petitioners have not obtained
clearance either from MOEF or from State level authorities. They have
also not obtained recommendations of MCZMA. In fact, they have
utilized FSI of BEST plot without complying the conditions. He has
given us the details of FSI and built up area calculations for Adarsh
Society as per DC Regulations of 1991 based on the sanction plan dated
16.09.2010 at page 80 of the Writ Petition.
95. He has taken us through paragraphs 6.7 and 6.8. In paragraph
6.8, petitioners asserted that MOEF also retained the powers, which
were exercisable by MCZMA. ig In fact, MOEF applied its mind to
CZMP of Greater Mumbai as is clear from its letter dated 02.12.2002.
MOEF itself noted that it had already delegated the power to the
concerned State Government for undertaking the development.
However, no mention was made by MOEF about the notification dated
04.01.2002 or that there was any need for referring the proposal to
MCZMA. In fact, MOEF itself exercised those powers, which were
exercisable by the MCZMA and left it to the discretion of the State
Authorities to finally regulate and approve the construction as per CRZ
1991 Notification. Mr. Khambata also took us through the grounds (iii),
(iv), (v), (vi) and (vii) relating to the environmental clearance.
96. Mr. Khambata submitted that if the area of staircase, lift lobby as
per Rule 51(vi) of 1967 DC Rules is included without considering FSI
of BEST plot, the petitioners have utilized FSI to the tune of 2.932 as
against permissible FSI of 1.33. In other words, there is gross violations
by utilizing excess FSI. He, therefore, submitted that this is not the fit
case for invocation of extra-ordinary jurisdiction of this Court under
Article 226 of the Constitution of India. In support of this submission,
he relied upon the following decisions:
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a. State of Bombay Vs. Morarji Cooverji 52 at page 331;
b. State of Maharashtra Vs. Prabhu53, and in particular
paragraph 4;
c. M.P. Mittal Vs. State of Haryana 54, and in particular
paragraph 5.
97. He further submitted that the submission advanced by the
petitioners that order cannot travel beyond the show cause notice and
cannot be supported by additional grounds is wholly misconceived
where larger public interest is involved. He relied upon the decision in
the case of All India Railway Recruitment Board 31, and in particular
paragraphs 44 and 45 thereof to contend that the principle laid down in
Mohinder Singh Gill's case28 is not applicable where larger public
interest is involved and in such situation, the additional grounds can be
looked into to examine the validity of the impugned actions in the
present case. He submitted that no case is made out for invocation of
powers under Article 226 of the Constitution of India.
98. Mr. Apte, while supporting the MOEF and its officials, submitted
that in the meeting of NCZMA held on 11.11.2010, prima facie view
about violation of CRZ Notification was expressed. This was followed
by notice dated 12.11.2010 calling upon the petitioners to show cause as
to why the unauthorized structure erected by Adarsh Society be not
removed forthwith in entirety. Petitioners gave interim reply on
24.11.2010. He submitted that in the reply, no allegations were made
about violations of principles of natural justice or that issue was
prejudged. He has taken us through correspondence as regards
inspection of the documents. On 15.12.2010, petitioners gave a detailed
reply. Even in this reply, no allegations that show cause notice
52 1958 (61) Bom.L.R. 318
53 (1994) 2 SCC 481
54 (1984) 4 SCC 371
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prejudged the issue were made. On 10.01.2011, petitioners gave
detailed written submissions in Annexure-I. In paragraph 1, petitioners
submitted that panel consisting of Dr. Nalini Bhat, Advisor, Dr. Bharat
Bhushan, Director (Scientific IA), Dr. A. Senthil Vel (IA-III), Mr. E.
Thirunavukkarasu, (IA-III) heard Adarsh Society on 04.01.2011.
Petitioners also contended that use of FSI was within the limits
permitted by DCR, 1967. Even in Petition, petitioners specifically
contended that 1967 DCR are applicable.
99. He has taken us through paragraphs 1(e), (f), (g), (h), (k) and (v)
of the written submissions relating to clearance obtained by petitioners
under 1991 Notification. Petitioners raised general objections to
NCZMA recommendation / decision. In paragraphs 4, 6 and 7,
petitioners contended that by memorandum dated 05.08.2005, BEST
plot belonging to the State of Maharashtra was allotted on occupancy
basis to Adarsh Society against payment of amount of Rs.6,14,02,640/-.
In short, he submitted that in the detailed reply also, no allegations of
violation of principles of natural justice were leveled. He further
submitted that petitioners were given inspection of all the documents
which was sought by the petitioners. It is, therefore, not open to the
petitioners to contend that relevant documents were not either given or
shown to them. He has also taken us through the petitioners' response to
the questionnaire.
100. Mr. Apte submitted that Section 5 of the E.P.Act does not provide
for personal hearing. Despite that, hearing was given to the petitioners
by the panel consisting of four persons. He submitted that in the present
case, institutional decision is taken. He submitted that on 04.01.2011,
submission was put up by Mr. E. Thirunavukkarasu, Deputy Director
(IA-III) before respondent No.2 - Mr. Jayram Ramesh proposing that the
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hearing to the petitioner be conducted by respondent No.4 - Dr. Nalini
Bhat, Advisor and the respondent No.3 - Dr. Bharat Bhushan, Director
(Scientific IA), Dr. A. Senthil Vel (IA-III) and Mr. E. Thirunavukkarasu,
(IA-III) will assist her. The same was approved by respondent No.2. He
submitted that after hearing, respondent No.4 prepared report.
Respondent No.3 Dr. Bharat Bhushan submitted proposal for obtaining
approval of respondent No.2 on 14.01.2011. He has also invited our
attention to the chart showing hierarchy in the MOEF as also office
order dated 30.09.2009. He submitted that cases involving policy
implications or other sensitivities are required to be brought to the notice
of Hon'ble Minister of MOEF. In short, he submitted that the decision
taken in the present case is institutional decision and approved by the
respondent No.2.
101. In support of these submissions, he relied upon the following
decisions:
a. Union of India Vs. Jyoti Prakash55, and in particular paragraph
25;
b. Ossein and Gelatine Mfgrs. Assocn. of India 27, and in
particular paragraphs 5 and 6;
c. Indore Textiles Mill Limited Vs. Union of India 56, and in
particular paragraphs 7 to 12;
d. Raghava Menon Vs. I. G. of Police 57, and in particular
paragraph 3;
e. Trimbakpati Vs. B.H.S. and I. Edn. 58, and in particular
paragraphs 15 and 17;
f. Gen. Manager E. Rly. Vs. Jawala Prosad 59, and in particular
paragraphs 7 to 9;
g. S. Kapoor Singh Vs. Union of India 60, and in particular
55 AIR 1971 SC 1093
56 AIR 1983 MP 65
57 AIR 1961 Kerala 299
58 AIR 1973 Allahabad 1 (FB)
59 AIR 1970 SC 1095
60 AIR 1960 SC 493
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paragraphs 21 to 23;
h. A. Sanjeevi Naidu Vs. State of Madras 61, and in particular
paragraph 12;
i. Dharampal Satypal Limited25, and in particular paragraphs
38 to 40;
j. Kesava Mills Company Limited Vs. Union of India 62, and in
particular paragraphs 17, 19, 20 and 21;
k. Gullapalli Nageswarrao12, and in particular paragraph 10;
102. Mr. Apte submitted that respondent No.4 - Dr. Nalini Bhat gave
hearing. Respondent No.3 - Dr. Bharat Bhushan was present to assist
her. After obtaining approval from respondent No.2, he passed order on
14.01.2011. He further submitted that petitioners have not pleaded bias
in replies to the show cause notices as also in the written submissions.
Even in the Petition, petitioners have not pleaded bias. In any case, he
stoutly refuted plea of bias. He relied upon the following decisions:
a. State of Punjab Vs. V. K. Khanna 63, and in particular
paragraphs 5 and 11;
b. Kumaon Mandal Vikas Nigam, and in particular
paragraphs 10 and 25 to 32;
c. Tata Cellular Vs. Union of India64, and in particular
paragraphs 129, 131-148;
d. International Airports Authority of India Vs. K. D. Bali 65, and
in particular paragraphs 5 and 6;
e. Susme Builders Private Limited Vs. CEO, SRA66, and in
particular paragraphs 29, 31 and 57;
f. Metropolitan Properties Company (F.G.C.) Limited Vs.
Lannon67, and in particular paragraph 116;
61 AIR 1970 SC 1102
62 AIR 1973 SC 389
63 AIR 2001 SC 343
64 AIR 1996 SC 11
65 AIR 1988 SC 1099
66 2012 (114) Bombay Law Reporter 3190
67 1969 Queen's Bench 577
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g. All India Institute of Medical Sciences Vs. Kausal K. Verma 68,
and in particular paragraphs 23 and 29;
103. Mr. Apte submitted that respondents have not violated any facet
of principles of natural justice. The decision was not predetermined or
prejudged. Officers were also not biased. In fact, no such case is made
out earlier and for the first time, during the course of arguments, case as
regards bias was developed. He, therefore, submitted that no case is
made out for invocation of powers under Article 226 of the Constitution
of India.
104. We have also heard Ms Kiran Bhagalia appearing for MMRDA
and Mr. Toor appearing for BEST, though it is not party in this Petition
as the learned Counsel appearing for the parties agreed that the decision
rendered in this case will also govern fate of Writ Petition No.2407 of
2010. Ms Bhagalia stated that she will not make submissions in the
present case as MMRDA is not party. Mr. Toor has invited our attention
to paragraphs 1 and 47 of Writ petition No.2407 of 2010. In that
Petition, petitioners have challenged the consequential action of BEST
in disconnecting electricity supply. In paragraph 47, petitioners referred
to letter dated 02.11.2005 wherein request was made for utilizing FSI of
BEST plot and referred to Notification dated 03.03.2006 issued under
Section 50 of the M.R.&T.P. Act sanctioning use of additional FSI of
BEST plot. He has invited our attention to order dated 23.12.2010
passed by the Division Bench of this Court in Writ Petition No.2407 of
2010 and companion Writ Petitions and in particular paragraphs 6, 8(D),
9 and 11. He has also invited our attention to two affidavits made by
BEST; first affidavit dealing with disconnection of electricity supply and
second affidavit dealing with deletion of reservation as also additional
affidavit in reply made on behalf of the BEST. In the additional
68 220 (2015) DLT 446 (Delhi High Court)
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affidavit, it is asserted that area admeasuring 2669.68 sq.mtrs. of
Captain Prakash Pethe Marg fronting the ingress and egress to the BEST
depot has been consistently used by BEST for access on and from
11.10.1976, and consequently, BEST has been exercising easementary
right of way over the said area. Reference is also made to the
correspondence exchanged between BEST and UDD of Government of
Maharashtra. On 17.05.2000, request was made on behalf of the BEST
for designating the bus depot plot from "Bus Depot" to "BEST Bus
Depot and Housing" to enable BEST to make use of the said bus depot
plot also for its officers' quarters. This was replied by the Under
Secretary, UDD on 29.11.2003 wherein it was stated that bus depot land
is included in CRZ-II and existing road from sea side is affected by high
tide level and that, there is no existing building adjacent to plot No.87-
C. The said letter also stated that as per clarification dated 08.09.1998
given by MOEF, any construction affecting high tide level would not be
permissible and therefore, request made by Assistant General Manager
(Civil), BEST cannot be acceded to.
105. On 14.07.2004, Under Secretary, UDD addressed a letter to the
General Manager, BEST to attend the meeting on 14.07.2004 at 5.30
p.m. with relevant documents at Mantralaya under the Chairmanship of
Hon'ble Minister of State, UDD as regards granting of additional FSI to
Adarsh Society. On 19.08.2004, General Manager, BEST addressed a
letter to the Principal Secretary, UDD enclosing therewith a brief note
regarding discussions that took place in the meeting of 14.07.2004. In
that note, it was suggested that the reservation over 2669.68 sq.mtrs will
have to be deleted by following procedure under Section 37 of the
M.R.&T.P. Act. By letter dated 30.10.2004, opinion from BEST as
regards utilization of FSI of bus depot by Adarsh Society was sought.
Thereafter, meeting was held on 15.12.2004 when Assistant General
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Manager (Civil) BEST attended the meeting. He submitted the internal
note dated 29.12.2004 to the General Manager, BEST. In that note,
again reference was made for following procedure under Section 37 of
the M.R.&T.P. Act. It was further clarified that BEST Undertaking will
not grant NOC for dereservation of land as suggested by Shri Ramanand
Tiwari, Principal Secretary, UDD.
106. Mr. Toor invited our attention to the communication dated
12.01.2005 addressed by Assistant General Manager (Civil) to the
Additional Secretary, UDD setting out therein that the BEST bus depot
has been commissioned and is in operation since 1976. The land under
reference is used as ingress and egress of the buses as and by way of
approach road and the same will be required as an approach road for
Backbay Bus Depot. Taking into consideration this fact, the existing
44.40 mtr. wide road may be maintained as an approach road by keeping
the interest of the BEST intact and take appropriate decision in
accordance with law. In short, Mr. Toor submitted that this was not the
no objection given by BEST.
107. Mr. Toor invited our attention to Section 50 of the M.R.&T.P. Act
as also notification dated 03.03.2006 issued thereunder. Section 2(3)
defines the expression 'appropriate authority' to mean any public
authority on whose behalf land is designated for public purpose in any
plan or scheme and which it is authorized to acquire. In the present
case, the land is designated for BEST bus depot and consequently, BEST
is the appropriate authority. He submitted that as per sub-section (1) of
Section 50, appropriate authority has to satisfy itself that the land so
reserved is not or no longer required for public purpose for which it is
designated or reserved or allocated in the development plan. It is only
on arriving at such satisfaction, the appropriate authority has to request
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the planning authority (in the present case MMRDA) to sanction the
deletion or the State Government to sanction the deletion. In other
words, appropriate authority has to make application to the State
Government for deletion of reservation after arriving at its satisfaction.
In the first place, BEST has not made any application as contemplated
by sub-section (1) of Section 50. Secondly, under sub-section (3), upon
release of land from such designation or reservation, it becomes
available to the owner for the purpose of development. Even according
to the petitioners, State Government is the owner. Even if it is released
from reservation, it shall become available to the State Government, it
being the owner and not to the Adarsh Society. He, therefore, submitted
that the Notification dated 03.03.2006 issued under Section 50 is null
and void ab initio. If the exercise of power under Section 50 is only null
and void, development permission has no legal efficacy. The
Notification dated 03.03.2006 is null and void. He submitted that the
communication dated 12.01.2005 addressed by AGM cannot be treated
as NOC. The NOC as contemplated has to be of BEST committee. The
State Government, therefore, could not have issued notification dated
03.03.2006 on the basis of the communication dated 12.01.2005
addressed by Assistant General Manager.
108. In support of this submission he relied upon the decision of
Manohar Joshi Vs. State of Maharashtra69, and in particular
paragraphs 106, 107 and 199. In paragraph 199, it was observed that if
the deletion of reservation under Section 50 is at the instance of the
appropriate authority, only when it does not want the land for the
designated purpose.
109. Mr. Toor also relied upon Subhash V. Khaire Vs. State of
69 (2012) 3 SCC 619
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Maharashtra70, and in particular paragraph 17 thereof, to contend that
the notification dated 03.03.2006 is illegal, null and void ab initio. It
cannot be an order / notification issued in exercise of powers under
Section 50 of the M.R.&T.P. Act. Mr. Toor also relied upon Deepak
Kumar Mukherji Vs. Kolkata Municipal Corporation 71, and in
particular paragraphs 8, 9 and 29, to contend that if notification under
Section 50 is void ab initio, the consequence is to order demolition of a
portion which utilized FSI of BEST plot. Mr. Toor also relied upon the
decision in Kishore Samrite Vs. State of Uttar Pradesh 72, and in
particular paragraphs 34 to 38 to contend that this is not a fit case for
invocation of powers under Article 226 of the Constitution of India.
110. Mr. Shailesh Shah appearing on behalf of the State Government
submitted that this Petition raises as many as four issues namely, (1)
whether CRZ clearance is necessary; and if yes, (2) whether petitioners
have obtained such clearance; (3) whether the petitioners have exceeded
permissible FSI; and (4) whether there is breach of principles of natural
justice. He submitted that petitioners contend that the communications
dated 11.03.2003 and 15.03.2003 collectively constitute NOC.
Communication dated 15.03.2003 is based on interpretation of
communication dated 11.03.2003. Communication dated 11.03.2003 of
MOEF addressed to Mr. P. V. Deshmukh states that MOEF delegated
powers to the State Government as per CRZ Notification. By no stretch
of imagination, it can be construed as NOC of MOEF. Interpretation of
communication dated 11.03.2003 made by Mr. P. V. Deshmukh is
impermissible interpretation, and is not binding on the State
Government. Even if the Court comes to the conclusion that
communication dated 11.03.2003 constitutes NOC, however, no
70 2006 (6) Bom.C.R. 418
71 (2013) 5 SCC 336
72 (2013) 2 SCC 398
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recommendations of MCZMA were obtained. In fact Clause VIII of
order dated 04.01.2002 requires prior recommendations of MCZMA and
the said requirement is mandatory. Petitioners have not obtained
recommendations of either MCZMA or Environment Department of the
State Government. He has invited our attention to the affidavit of Mr. T.
C. Benjamin, Principal Secretary-1, UDD dated 19.01.2011 made in
Writ Petition No.2407 of 2010 and in particular paragraph 10 thereof. In
paragraph 10, it is asserted that petitioners ought to have obtained NOC
from the Environment Department for carrying out any construction
activity as the subject plot is situate in CRZ-II. Petitioners did not even
make an application for obtaining NOC from the Environment
Department. In paragraph 3(b), it is provided that approval of the
Environment Department was required to be obtained.
111. Mr. Shah also invited our attention to affidavit dated 14.07.2011
of Mr. Sanjay R. Kurve, Deputy Director of Town Planning in this
Petition, and in particular paragraphs 5, 15 and 16 thereof. He
submitted that as per Clause VIII of order dated 04.01.2002,
recommendations of MCZMA were required to be obtained. The said
recommendations were required to be placed before the Environment
Department upto 21.04.2003, as from 08.07.1997 to 21.04.2003, the
clearance was to be granted by the State Level Authorities. He
submitted that the petitioners' contention that they cannot be blamed, if
at all Mr. Deshmukh committed mistakes, is totally unacceptable.
Communications dated 11.03.2003 and 15.03.2003 individually or
collectively does / do not constitute clearance either of MOEF or the
State Government.
112. Mr. Shah submitted that Clause II of the allotment letter
specifically laid down that as the subject plot is in CRZ area, before
carrying out construction, permission of MOEF as also MMRDA, being
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the Special Planning Authority and the Corporation shall be obtained.
Clause 2 of the memorandum dated 05.08.2005 permitting the
petitioners to utilize additional FSI of BEST plot also required
petitioners to obtain prior permission of MOEF. The petitioners did not
protest on the ground that they had already obtained clearance as per
communications dated 11.03.2003 and 15.03.2003. In fact petitioners
were put to notice that before carrying out construction, they will have
to obtain prior permission of MOEF.
113. Mr. Shah has also taken us through the correspondence
exchanged between Adarsh Society and the State Government, which
culminated in issuance of memorandum dated 05.08.2005. He
submitted that perusal of correspondence will clearly show that under
that memorandum, petitioners were allowed to utilize additional FSI of
BEST plot and the BEST plot was not allotted to them. He has also
invited our attention to the Notification dated 03.03.2006 issued under
Section 50 of the M.R.&T.P. Act and submitted that the use of additional
FSI was subject to obtaining approval of MOEF, MMRDA and
Corporation. The petitioners were allowed to utilize additional FSI
subject to fulfillment of these conditions. If there was no compliance of
the conditions laid down in Memorandum dated 05.08.2005, the
petitioners could not have utilized additional FSI of BEST plot.
114. Mr. Shah submitted that even if it is assumed for the time being
that by memorandum dated 05.08.2005, petitioners were allotted BEST
plot, still, they cannot utilize FSI of BEST plot on the subject plot. He
relied upon Section 2(13-A) and 2(21) of M.R.&T.P. Act which define
the expressions 'Floor Space Index' and 'Plot' respectively. He
submitted that FSI of a particular plot has to be used in that plot only. In
other words, FSI of BEST plot has to be utilized in BEST plot,
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otherwise, it will amount to Transferable Development Rights (TDR).
Admittedly, subject plot is situate in A Ward where loading of TDR is
prohibited. In short, he submitted that petitioners were not entitled to
utilize FSI of the BEST plot while carrying out construction in the
subject plot.
115. Mr. Shah invited our attention to Rules of Business pertaining to
UDD and Environment Department and submitted that the grant of NOC
clearly falls within the domain of Environment Department who is
authorized to deal with the subject of environment and all other related
matters. He, therefore, submitted that in fact Mr. Deshmukh was not at
all authorized to address a letter dated 05.10.2002 to MOEF. It cannot
be said that Mr. Deshmukh who was holding the post of Deputy
Secretary was not aware of the Business Rules. In any case, he was
disqualified as it amounted to conflict of interest.
116. Mr. Shah submitted that the appropriate authority did not make
any application as contemplated by Section 50 of M.R.&T.P. Act. He
has taken us through the file pertaining to issuance of Notification dated
03.03.2006 under Section 50 of M.R.&T.P. Act.
117. In rejoinder, Mr. Seervai strenuously contended that respondents
have not answered following points raised by him as they have no
answer in law or in fact. The points raised by him strike at the root of
the matter. Respondents did not bother to deal with rules or principles
of natural justice and the consequences that flow therefrom. He
submitted that Mr. Khambata conceded that the doctrine of prejudice
does not apply to the case of bias. MOEF did not deal with the
contentions raised by the petitioners as regards bias. Elaborating this, he
submitted that on 12.11.2010, notice was issued to the petitioners to
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show cause within 15 days as to why the unauthorized structure erected
by the Adarsh Society should not be removed forthwith in its entirety.
He submitted that illegality was already predetermined / prejudged. No
attempt was made by the respondents to deal with this point. He
submitted that the said notice was explicit, unequivocal and clear about
issuing direction to demolish the building in its entirety. The minutes of
the 66th meeting of MCZMA held on 03.11.2010, minutes of meeting
dated 11.11.2010 of NCZMA, show cause notice dated 12.11.2010,
report dated 13.01.2011 submitted by respondent No.4 Dr. Nalini Bhat,
order dated 14.01.2011 passed by the respondent No.3 Dr. Bharat
Bhushan and order dated 16.01.2011 passed by respondent No.2 Mr.
Jayram Ramesh intrinsically show that issue was predetermined /
prejudged and totally smack of the bias. All decisions / actions of the
respondents are vitiated by bias. Respondent No.2 Mr. Jayram Ramesh,
respondent No.3 Dr. Bharat Bhushan, respondent No.4 Dr. Nalini Bhat,
Dr. A. Senthil Vel and Mr. E. Thirunavukarasu were having bias against
the petitioners and though these points were specifically urged, they
were not dealt with by the respondents.
118. Mr. Seervai submitted that four officials of MOEF namely,
respondent No.3 Dr. Bharat Bhushan, respondent No.4 Dr. Nalini Bhat,
Dr. A. Senthil Vel and Mr. E. Thirunavukarasu were integrally involved
in coming to the decision that the construction carried out was illegal.
They had actively participated in the meeting of NCZMA, which was
held on 11.11.2010. They recommended to MOEF that the only course
open was to order demolition of entire building. In effect, four officials
recommended to themselves to accept the report in its entirety. These
four officials, based on their own recommendations, accepted the
observations / conclusions in show cause notice dated 12.11.2010.
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119. Mr. Seervai submitted that respondent No.4 Dr. Nalini Bhat
having already decided that the building is illegal, without issuing
notice to the petitioners to show how it is legal and proceeded to hear
the petitioners. He, therefore, submitted that she could not have
possibly heard the petitioners and submitted the report.
120. Mr. Seervai submitted that the so called hearing given by the
respondent No.4 Dr. Nalini Bhat is further vitiated by a presence of three
unauthorized persons namely, Dr. Bharat Bhushan, Dr. A. Senthil Vel
and Mr. E. Thirunavukarasu. They dishonestly misled the petitioners at
the time of hearing that they were duly authorized to hear the petitioners
along with the respondent No.4 Dr. Nalini Bhat. In fact, order dated
30.09.2009 authorized only respondent No.4 Dr. Nalini Bhat to hear the
petitioners. In other words, respondent No.3 Dr. Bharat Bhushan, Dr. A.
Senthil Vel and Mr. E. Thirunavukarasu had no authority to participate
during the course of hearing. In any case, these persons having
participated in the decision of the NCZMA dated 11.11.2010 were
interested parties who had already determined that the petitioners were
guilty. Hearing is infected by bias of Dr. Nalini Bhat. It is a case of
substantive ultra vires and not a case of prejudice.
121. Mr. Seervai further submitted that even otherwise, the decisions /
actions of the respondents are vitiated on account of procedural ultra
vires. Proceedings right from 03.11.2010 to 16.01.2011 are vitiated by
procedural ultra vires. He submitted that it is admitted / accepted
position that respondent No.4 Dr. Nalini Bhat was authorized to give
hearing to the petitioners. If she had heard the petitioners, it was only
Dr. Nalini Bhat who could have passed the order which is based on the
principle that one who hears has to decide. The report prepared by
respondent No.4 Dr. Nalini Bhat is subversive of judicial system /
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functioning. The entire report is based upon the minutes of NCZMA
and thus, the issue was predetermined. Respondent No.4 Dr. Nalini
Bhat became Judge in her own cause. Respondent No.3 Dr. Bharat
Bhushan could not factually and legally give hearing. Respondent No.3
Dr. Bharat Bhushan, therefore, could not have passed the order on
14.01.2011. The order is based on a report, copy whereof was not given
to the petitioners. Respondent No.4 Dr. Nalini Bhat was disqualified
from hearing the matter. Respondent No.3 Dr. Bharat Bhushan was also
disqualified from passing the order. He submitted that from the material
on record, it is evident that even before issuing show cause notice on
03.11.2010, draft demolition order was ready. The said fact is not and
cannot be disputed and is an admitted fact. It is evident from the
minutes of MCZMA meeting dated 03.11.2010. In view thereof,
nothing remained to be decided and the hearing was an empty ritual and
an idle formality.
122. Mr. Seervai submitted that report prepared by Dr. Nalini Bhat was
not given to the petitioners. The petitioners did not know about the said
report. Report is a sole basis of order dated 14.01.2011 passed by
respondent No.3 Dr. Bharat Bhushan. He submitted that it is a
fundamental principle that material which is relied by the authority
passing the order ought to have been supplied to the petitioners. Mr.
Seervai relied upon the decision in Karunakaran's case47. Petitioners
were also denied to cross-examine Mr. Sitaram Kunte and Mr. T. C.
Benjamin whose lengthy statements were recorded. NCZMA's meeting
of 11.11.2010 was orchestrated by respondent No.4 Dr. Nalini Bhat. He
submitted that the foundation of report prepared by Dr. Nalini Bhat was
the statements of Mr. Sitaram Kunte and Mr. T. C. Benjamin. He,
therefore, submitted that the report prepared by Dr. Nalini Bhat and the
order passed by Dr. Bharat Bhushan are vitiated as petitioners were not
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permitted to cross-examine Mr. Sitaram Kunte and Mr. T. C. Benjamin.
Petitioners were heard by Dr. Nalini Bhat and the order was passed by
Dr. Bharat Bhushan, which is contrary to the principle that one who
hears, must pass the order as also it is vitiated on account of bias. He
submitted that the decision in Gullapalli Nageswararao12 is reiterated
in the following three judgments:
a. Rasid Javed Vs. State of U.P.73, and in particular paragraph 51;
b. Union of India Vs. Shiv Raj74, and in particular paragraphs 17
to 20; and
c. Automotive Tyre Mfgrs. Assocn.11, and in particular
paragraphs 80, 83 and 84.
123. Mr. Seervai invited our attention to the decision relied by Mr.
Khambata namely, Karunakaran's case47, and in particular paragraph
7(i), (iii) and (iv). He submitted that petitioners were deprived of right
to prove innocence. Respondents did not answer these points as they
could not answer the same. Respondents jumped to second stage
namely, imposing penalty and prejudged the case behind the back of the
petitioners by relying upon the statements of Mr. T. C. Benjamin and
Mr. Sitaram Kunte. He also relied upon State Bank of Patiala48, and in
particular paragraphs 8(iii) and 9 to 11 as also Haryana Financial
Corporation49.
124. Mr. Seervai submitted that order of MOEF is only on two issues
and it is impermissible to go into other issues. Judicial review under
Article 226 is proceedings either of administrative or quasi-judicial
nature. Order cannot travel beyond the show cause notice.
Jurisprudentially, a person has to deal with the show cause notice alone.
Courts have consistently held that it is impermissible for the
73 (2010) 7 SCC 781
74 (2014) 6 SCC 564
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adjudicating authority to travel beyond the show cause notice. If the
order travels beyond the show cause notice, it is bad in law as it is in
violation of principles of ad alteram partem. Petitioners cannot in a
worst position in this Court. He submitted that the following aspects
were not in show cause notice / minutes of MCZMA / NCZMA / orders:
a. FSI exceeded in view of 1967 DCR excluding lift rooms,
lobby, stair case, etc.;
b. BEST plot was allotted to the petitioners or not;
c. Under 1967 DCR, if the decision of the Apex Court in Suresh
Estate1 applies then permissible FSI is 3.5;
d. Contention that Notification dated 03.03.2006 issued under
Section 50 of the M.R.&T.P. Act is ultra vires was not raised in
the order and nobody challenged that Notification;
e. Letter dated 15.03.2003 of Mr. P. V. Deshmukh granting NOC
because he was a member is irrelevant;
f. Sanctioning Authority is MOEF as per CRZ Notification dated
19.02.1991 and UDD / MMRDA as per Notification dated
09.07.1997. The contention that Environment Department of
Government of Maharashtra was the appropriate authority was
not raised.
125. Respondents' contention that MOEF's permission is necessary as
the conditions stipulated in letter of allotment dated 09.07.2004,
memorandum dated 05.08.2005 and notification dated 03.03.2006
cannot be gone into and it is irrelevant. Respondent No.4 Dr. Nalini
Bhat accepts that by memorandum dated 05.08.2005, subject plot was
allotted by Government to the petitioners. In the show cause notice, it is
not stated that MOEF's prior clearance is not obtained, and therefore, it
is illegal. Order of Dr. Bharat Bhushan dated 14.01.2011, report of Dr.
Nalini Bhat dated 13.01.2011, minutes of MCZMA dated 03.11.2010
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and minutes of NCZMA dated 11.11.2010 do not violate the principle
that order travels beyond the show cause notice. The Counsel during the
course of arguments cannot violate that principle. Counsel for
respondents however went beyond show cause notice / orders by raising
additional grounds in support of the impugned orders / actions. Show
cause notice, orders and minutes speak about 09.07.1997 Notification,
and therefore, that Notification is relevant and not the subsequent
Notification dated 22.04.2003. Respondents' argument that Notification
dated 22.04.2003 is relevant is contrary to record. He further submitted
that the order cannot be improved by affidavit and oral submissions of
respondents in the Court. He submitted that it is impermissible. He
relied upon - a) Commissioner of Police Vs. Govardhan Bhanji 75 and b)
Mohinder Singh Gill's case28. Submission of Mr. Khambata that the
ratio in Mohinder Singh Gill's case28 is watered down is wholly
unacceptable. In fact Mohinder Singh Gill's case28 is followed in the
following decisions:
a. Deepak Babaria29, and in particular paragraphs 62 to 65, 69
and 70;
b. Rashmi Metaliks Limited30, and in particular paragraph
15;
c. All India Railway Recruitment Board31;
d. Dharampal Satyapal Limited25.
126. He also relied upon Union of India Vs. Dhanwanti Devi 76, and in
particular paragraphs 9 and 10 dealing with binding nature of
precedents. He submitted that the aforesaid contentions advanced by the
petitioners were not dealt with by the respondents as they had no
answer. On merits, Mr. Seervai submitted that as no clearance under
CRZ Notification is required, it is unnecessary to obtain the
recommendations of MCZMA. The controversy raised in this Petition
75 AIR 1952 SC 16
76 (1996) 6 SCC 44
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centers around six documents namely, 05.10.2002, 02.12.2002,
04.01.2003, 10.01.2003, 11.03.2003 and lastly, 15.03.2003. As far as
the issue of CRZ clearance is concerned, he submitted that if the
documents from 05.10.2002 to 15.03.2003 are read as a whole, it shows
that 11.03.2003 is CRZ clearance. In substance, it is CRZ clearance.
Alternatively, 15.03.2003 is the clearance of the State Government. He
submitted that the Court ought not to shut eyes to - a) every single
authority involved during 2007-2008 at every stage of granting
permission on the footing that CRZ clearance was granted; b) on
03.11.2009 show cause notice was issued by MCZMA which was
replied by the petitioners on 17.12.2009, enclosing therewith
communications dated 11.03.2003 and 15.03.2009. MCZMA thereafter
did not give any reply nor it take any action for more than 1½ years.
MCZMA did not intimate that petitioners did not obtain its
recommendations. In fact, the authorities themselves are not sure as to
who is the appropriate authority to grant clearance.
127. Mr. Seervai submitted that the contention advanced by Mr.
Khambata that the expressions 'clearance' and 'regulation' mean the
same thing cannot be accepted. When the subordinate legislation uses
two different expressions, namely, clearance and regulation, obviously,
they cannot mean the same thing. Regulation includes complete
prohibition. He submitted that the concept of regulation and clearance
are two different concepts. He has taken us through paragraphs 2 and 3
of CRZ Notification dated 19.02.2011 to contend that the expressions
'clearance' and 'regulation' are different. In short, he submitted that
clearance of either MOEF or State Level Authorities is not required and
consequently, recommendations of MCZMA are also not necessary.
128. Mr. Seervai submitted that regulation laid down three things
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which are to regulated by the State Level Authorities. MCZMA cannot
regulate on the issue of FSI. The Legislation does not confer such
power on MCZMA. The issue of FSI is to be regulated by either
Corporation being the Planning Authority or MMRDA, which is a
Special Planning Authority. In fact, in the past, MCZMA has never
looked into the aspect of FSI. They have never examined FSI aspect
after 04.01.2002 onwards. M.R.&T.P. Act also does not authorize
MCZMA to go into FSI aspect.
129. Mr. Seervai submitted that if for the sake of argument, it is held
that 1967 DCR are applicable, as a matter of right and not as a matter of
discretion, FSI permissible in BBRS-III-VI, petitioners are entitled to
consume 3.5 FSI. He submitted that MCZMA show cause notice /
report / impugned orders do not hold that petitioners' building has
exceeded FSI under 1967 DCR. In the minutes of the meeting dated
03.11.2010 of MCZMA, it is recorded that the plot is not amalgamated.
Nobody considered Notifications of 10.06.1977 and 05.10.1989 as they
were not relevant. Even the Apex Court in Suresh Estate1, did not
consider these Notifications. The minutes of NCZMA, MCZMA, show
cause notice, reports, impugned orders do not refer to these
Notifications. He submitted that under Rule 10(1) of 1967 DCR, as a
matter of right, permissible FSI is 3.5. Rule 10(2) gives discretionary
powers to the Planning Authority.
130. Mr. Seervai submitted that even according to Mr. Khambata's
calculations, petitioners have consumed 2.9 FSI and thus, it has not
exceeded FSI of 3.5. He submitted that it is settled principle of law that
in judicial review of quasi-judicial orders, it is impermissible to go
beyond the show cause notice. He submitted that MMRDA in its
affidavit filed in Writ Petition No.2407 of 2010 categorically stated that
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it took into account 1989 Draft DC Regulations. MMRDA itself did not
consider Notifications dated 10.06.1977 and 05.10.1989 as relevant. In
fact, Notification dated 05.10.1989 lapsed in 2007 when the
commencement certificate was issued. In short, Mr. Seervai submitted
that there is no FSI violation and the Court should accept affidavit of
Special Planning Authority namely, MMRDA. MMRDA had passed all
the plans and granted valid permissions taking into account 1989 Draft
DC Regulations. The Apex Court decided Suresh Estate1 on
14.12.2007. All the permissions were validly granted prior to 2007. He
further submitted that in Suresh Estate1, the Apex Court was dealing
with property situate in 'C' Ward. In that case, application was made for
carrying out development and building was not already constructed.
The Apex Court was not dealing with 'A' Ward. The Apex Court was
also not concerned with Draft DCR and Draft Plan qua 'A' Ward. Apex
Court was dealing with the Final Development Plan and Final DCR of
1967 and Draft DCR and Draft Development Plan of 1989. He invited
our attention to paragraphs 7, 24 and 25 of Suresh Estate. Mr. Seervai
submitted that Suresh Estate1 does not deal with Final Development
Plan of 1990 of 'A' Ward.
131. Mr. Seervai submitted that in the show cause notice as also report,
it is observed that petitioners have utilized FSI of adjoining plot of
BEST without amalgamation. He submitted that in fact, in the report of
Dr. Nalini Bhat, there is a finding that BEST plot was allotted. MMRDA
in its affidavit categorically stated that BEST plot was allotted on
05.08.2005.
132. Mr. Seervai submitted that none of the respondents have
challenged the Notification dated 03.03.2006. MMRDA, Corporation,
State Government do not say that utilization of FSI of BEST plot is
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illegal; it is MOEF who says that it is impermissible. It is for MOEF
who asserts to prove that aspect and MOEF has not proved it by relying
upon any Statute, Notification, Regulation, Rule, Bye-laws, and
provisions of Maharashtra Land Revenue Code, 1966. It is not possible
for the petitioners to prove negative. On mere ipse dixit of respondents,
not supported by any legal provision, Court ought not to invalidate the
same without challenge to memorandum dated 05.08.2005 and
notification dated 03.03.2006 merely because respondents say so. If
there is no specific prohibition then law presumes that it is permissible.
The permissions granted in favour of the petitioners are not challenged
and set aside.
133. Mr. Seervai submitted that show cause notice, minutes of
MCZMA / NCZMA, reports and impugned orders do not deal with
validity of Notification dated 03.03.2006. They do not say that the
Notification dated 03.03.2006 is illegal. The Notification dated
03.03.2006 is not challenged. The judgments relied by Mr. Toor
appearing on behalf of the BEST are, therefore, irrelevant. He further
submitted that even the State Government does not say that the
Notification dated 03.03.2006 is illegal. In fact BEST did not write a
single letter from 2010 to the State Government alleging that the
Notification dated 03.03.2006 is illegal. He further submitted that
similar type of Notifications under Section 50 were issued and the same
were upheld by this Court in the Judges' Society case.
134. Mr. Seervai relied upon Sneh Mandal CHSL42, and in particular
paragraph 18 onwards to contend that for changing reservation, prior
approval of MCZMA is not required. He submitted that the Division
Bench of this Court dealt with change of classification of Coastal
Regulation Zones and not change of reservation.
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135. Mr. Khambata drew our attention to 1991 Notification and in
particular paragraphs 3(1), 3(2)(i) to (iii) and submitted that the decision
in Sneh Mandal CHSL42 was not in respect of change of CRZ I to CRZ
II. In fact the plots 146 and 147 in that case, were in CRZ II and not in
CRZ I. Mr. Khambata submitted that the decision in Mohinder Singh
Gill's case28 is not applicable where larger public interest is involved.
He relied upon M/s. PRP Exports Vs. Chief Secretary, Govt. of T.N. 77,
and in particular paragraph 7 thereof.
136. Mr. Shah appearing on behalf of the State Government submitted
that the prior recommendations of MCZMA are required to be obtained
as per the order dated 04.01.2002. As per Rules of Business, it is the
Environment Department who has to consider granting of clearance
under CRZ prior to 22.04.2003. He has taken us through the affidavit
filed by the State Government in Writ Petition No.2407 of 2010 as also
report of Dr. Nalini Bhat. He reiterated that BEST plot was not allotted
to the petitioners. He also relied upon MI Builder's case43 and also
Jeetram Shivkumar Vs. State of Haryana 78, and in particular paragraph
51. He submitted that in show cause notice as also order, issue of excess
FSI was specifically raised. He submitted that petitioners have
contended that they were allotted BEST plot and hence, they are entitled
to utilize FSI of BEST plot. If that be so, respondents are entitled to
meet the arguments so advanced by the petitioners, and therefore, issue
about utilization of excess FSI directly arises from the petitioners'
arguments.
137. Mr. Apte reiterated that the respondents have taken institutional
decision. Respondent No.3 Dr. Bharat Bhushan passed final order on
14.01.2011 after obtaining approval of respondent No.2.
77 (2014) 3 SCJ 593
78 AIR 1980 SC 1285
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CONSIDERATION
138. We have recorded the above submissions in great detail, lest, we
are accused of not correctly depicting the submissions as they were
canvassed before us. We have carefully considered the rival
submissions advanced by the learned Counsel appearing for the parties.
We have also perused the material on record including the report
prepared by the Commission of Justice J. A. Patil (Retired). In our
opinion, following questions arise for our consideration:
(1) Whether before carrying out construction activities in CRZ-II
area, clearance under 1991 Notification, as amended from time to time,
is required at all?
(2) If answer to the above question is in the affirmative then who is
the appropriate authority to grant clearance during the periods between -
a. 19.02.1991 and 08.07.1997;
b. 09.07.1997 and 04.01.2002;
c. 05.01.2002 and 21.04.2003;
d. 22.04.2003 and 30.12.2008;
e. 31.12.2008 and 05.01.2011; and
f. 06.01.2011 onwards.
(3) (a) Whether in terms of paragraph VIII of order dated 04.01.2002
of MOEF, prior recommendations of MCZMA are mandatorily
required to be obtained before the project proposals are referred
to the Central Government or the agencies who have been
entrusted to clear such projects under 1991 Notification? and
(b) Whether prior recommendations of MCZMA are necessary
before change of reservation / zoning?
(4) Whether in law it is the UDD or Environment Department of
Government of Maharashtra authorized to grant clearance during the
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period between 09.07.1997 and 21.04.2003?
(5) Whether communication dated 11.03.2003 of MOEF constitutes
its clearance?
(6) Whether communication dated 15.03.2003 of UDD, Government
of Maharashtra constitutes clearance of State Level Agency?
(7) Whether communications dated 11.03.2003 and 15.03.2003
collectively constitute clearance under CRZ Notification?
(8) Which of the DCRs namely, 1967 DCR, draft 1989 DCR, 1991
DCR are, in the facts and circumstances of the present case, applicable?
What is the permissible FSI and how much FSI is consumed by
the petitioners' building?
(10) Whether the various facets of the principles of natural justice
namely;
a. non-supply of report of respondent No.4 Dr. Nalini Bhat;
b. not permitting the petitioners to cross-examine Mr. T. C.
Benjamin and Mr. Sitaram Kunte;
c. hearing by respondent No.4 Dr. Nalini Bhat and passing of order
dated 14.01.2011 by respondent No.3 Dr. Bharat Bhushan;
d. (i) by participating in the NCZMA meeting dated 11.11.2010,
respondent No.3 Dr. Bharat Bhushan, respondent No.4 Dr.
Nalini Bhat, Dr. A. Senthil Vel and Mr. E. Thirunavukarasu,
have disqualified themselves in dealing with the petitioners'
case;
(ii) the above officers were having bias against the petitioners;
(iii) the respondent No.3 had made up his mind while issuing
show cause notice dated 12.11.2010;
(iv) the officers have abdicated their powers, functions and
duties and acted on dictates of others;
(v) the impugned order / action travel beyond the show cause
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notice;
e. preparation of draft demolition order purportedly by Dr. A.
Senthil Vel;
f. not hearing by respondent No.2 Mr. Jayram Ramesh before
accepting one of the three options;
are, in the facts and circumstances of the present case, grossly violated?
(11) Whether this is a fit case for invocation of extra-ordinary
jurisdiction under Article 226 of the Constitution of India?
(12) What order?
Re: Question No.(1)
(1) Whether before carrying out construction activities in CRZ-II
area, clearance under CRZ Notification dated 19.02.1991, as amended
from time to time, is at all required?
139. In order to answer this question, it is necessary to consider the
object for which E.P.Act was enacted. E.P.Act was enacted with a view
to providing for the protection and improvement of environment and for
matters connected therewith. Decisions were taken at the United
Nations Conference on the Human Environment held at Stokholm in
June 1972, in which India participated, to take appropriate steps for the
protection and improvement of human environment. Section 2(a)
defines the expression "environment" to include water, air and land and
the inter relationship which exists among and between water, air and
land and human beings, other living creatures, plants, micro-organism
and property. Section 3(1) lays down that subject to the provisions of
the E.P.Act, the Central Government shall have the power to take all
such measures as it deems necessary or expedient for the purpose of
protecting and improving the quality of the environment and preventing,
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controlling and abating environmental pollution. Clause (v) of sub-
section (2) of Section 3 lays down that in particular, and without
prejudice to the generality of the provisions of sub-section (1), such
measures may include measures with respect of all or any of the
following matters namely, (v) restriction of areas in which any
industries, operations, processes or class of industries, operations or
processes shall not be carried out or shall be carried out subject to
certain safeguards. Section 24 of the E.P.Act deals with effect of other
laws. It provides that subject to the provisions of sub-section (2), the
provisions of the E.P.Act and the rules or orders made thereunder shall
have effect notwithstanding anything inconsistent therewith contained in
any enactment other than E.P.Act. In other words, the provisions of the
E.P.Act and the rules or orders made thereunder are given overriding
effect.
140. MOEF issued 1991 Notification under Section 3(1) and Section
3(2)(v) of the E.P.Act and Rule 5(3)(d) of the EP Rules declaring coastal
stretches as CRZ and regulating activities in the CRZ. In exercise of
powers conferred by clause (d) of sub-rule (3) of Rule 5 of the EP Rules,
and all other powers vesting in its behalf, the Central Government
declared coastal stretches of seas, bays, estuaries, creeks, rivers and
High Tide Line (HTL) and the land between the Low Tide Line (LTL)
and the HTL as Coastal Regulation Zone and imposed with effect from
the date of that Notification, the restrictions on the setting up and
expansion of industries, operations or processes etc. in the CRZ.
Paragraph 2 thereof deals with the Prohibited Activities. Activities
enumerated in clauses (i) to (xiii) are declared as prohibited activities
within CRZ. Paragraph 3 deals with Regulation of Permissible
Activities. All other activities, except those prohibited in paragraph 2
are regulated as under:
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(1) Clearance shall be given for any activity within the CRZ only if it
requires water front and foreshore facilities.
(2) Clause (iv) of sub-paragraph (2) of paragraph 3, namely, all other
activities with investment exceeding Rs. 5 crores, will require
environmental clearance from MOEF, Government of India. Paragraph
3 reads thus,
"3. Regulation of permissible activities:
All other activities, except those prohibited in para 2
above, will be regulated as under:
(1) Clearance shall be given for any activity within the
Coastal Regulation Zone only it it requires water front and
foreshore facilities.
(2) The following activities will require environmental
clearance from the Ministry of Environment & Forests,
Government of India, namely:-
(i) Construction activities related to Defence
requirements for which foreshore facilities are essential
(e.g. slipways, jetties, etc.); except for classified
operational component of defence projects for which a
separate procedure shall be followed. (Residential
buildings, office buildings, hospital complexes, workshops
shall not come within the definition of operational
requirements except in very special cases and hence shall
not normally be permitted in the CRZ);
(ii) Operational constructions for ports and harbours
and light houses requiring water frontage; jetties wharves,
quayst slipways etc. (Residential buildings & office
buildings shall not come within the definition of
operational activities except in very special cases and
hence shall not normally be permitted in the CRZ);
(iii) Thermal power plants (only foreshore facilities
for transport of raw materials facilities for in-take of
cooling water and outfall for discharge of treated waste
water cooling water); and
(iv) All other activities with investment exceeding
rupees five crores."
(i) The coastal States and Union Territory
Administrations shall prepare, within a period of one year
from the date of this Notification, Coastal Zone
Management Plans identifying and classifying the CRZ
areas within their respective territories in accordance with
the guidelines given in Annexures-I and II of the
Notification and obtain approval (with or without
modifications) of the Central Government in the Ministry
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of Environment & Forests;
(ii) Within the framework of such approved plans,
all development and activities within the CRZ other than
those covered in para 2 and para 3(2) above shall be
regulated by the State Government, Union Territory
Administration or the local authority as the case may be in
accordance with the guidelines given in Annexure I and II
of the Notification; and
(iii) In the interim period till the Coastal Zone
Management Plans mentioned in para 3(3)(i) above are
prepared and approved, all developments and activities
within the CRZ shall not violate the provisions of this
Notifications. State Governments and Union Territory
Administrations shall ensure adherence to these regulations
and violations, if any, shall be subject to the provisions of
the environment (Protection) Act, 1986."
141. Paragraph 4 thereof deals with the procedure for monitoring and
enforcement and reads thus,
"4. Procedure for monitoring and enforcement:
The Minister of Environment and Forests and the Government of
State or Union Territory and such other authorities at the State or
Union Territory levels, as may be designated for this purpose,
shall be responsible for monitoring and enforcement of the
provisions of this notification within their respective jurisdictions.
142. Annexure I deals with coastal area classification and development
regulations. Paragraph 6(1) provides that for regulating development
activities, coastal stretches within 500 meters of High Tide Line of the
landward side are classified into four categories namely, Category-I
(CRZ-I), Category-II (CRZ-II), Category-III (CRZ-III) amd Category-
IV (CRZ-IV).
143. In Category-I (CRZ-I), (i) areas that are ecologically sensitive and
important, such as national parks / marine parks, sanctuaries, reserve
forests, wildlife habitats, mangroves, corals / coral reefs, areas close to
breeding and spawning grounds of fish and other marine life, areas of
outstanding natural beauty / historical / heritage areas, areas rich in
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genetic-diversity, areas likely to be inundated due to rise in sea level
consequent upon global warming and such other areas as may be
declared by the central Government or the concerned authorities at the
State / Union Territory level from time to time; (ii) area between the
Low Tide Line and the High Tide Line, are included.
144. In Category-II (CRZ-II), the areas that have already been
developed upto or close to the shoreline and for that purpose, 'developed
area' is referred to as that area within the municipal limits or in other
legally designated urban areas which is already substantially built up and
which has been provided with drainage and approach roads and other
infrastructural facilities, such as water supply and sewerage mains are
included. It is not in dispute that the subject plot is situate in CRZ-II. It
is, therefore, not necessary to deal with Category-III and IV.
145. Paragraph 6(2) of Annexure-I deals with norms for regulation of
activities and reads thus,
"6(2) The development or construction activities in different
categories of CRZ areas shall be regulated by the concerned
authorities at the State / Union Territory level, in accordance with
the following norms:
CRZ - I
...
CRZ - II
(i) Buildings shall be permitted neither on the seaward side of the
existing road (or roads proposed in the approved Coastal Zone
Management Plan of the area) nor on seaward side of existing
authorized structures. Buildings permitted on the landward side
of the existing and proposed roads / existing authorized structures
shall be subject to the existing local Town and Country Planning
Regulations including the existing norms of FSI / FAR.
(ii) ...
(iii) ... "
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146. Thus, perusal of 1991 Notification clearly shows that in terms of
paragraph 3(2)(iv), all other activities [activities other than clauses (i) to
(iii)] with investment exceeding Rs.5 crores, require environmental
clearance from MOEF, Government of India. This position continued
till 08.07.1997. Even petitioners did not dispute this position. On
09.07.1997, MOEF amended 1991 Notification. Insofar as the
controversy raised in the present Petition is concerned, relevant amended
clauses are clause (iv) of paragraph 3(2) and item (i) of sub-paragraph
(2) of paragraph 6 in Annexure-I. Amended paragraph 3(2)(iv) reads
thus,
"All other activities with investment exceeding Rs.5 crores
except those activities, which are to be regulated by the
concerned authorities at the State / Union Territory level in
accordance with the provisions of paragraph 6, sub-paragraph
(2) of Annexure-I of the Notification."
147. Item (i) of sub-paragraph (2) of paragraph 6 in Annexure-I under
heading "CRZ-II"reads thus,
" Building shall be permitted only on the landward side of
the existing road (or roads proposed in the approved Coastal Zone
Management Plan of the area) or on the landward side of the
existing authorized structures. Buildings permitted on the
landward side of the existing and proposed roads / existing
authorized structures shall be subject to the existing local Town
and Country Planning Regulations including the existing norms
of Floor Space Index / Floor Area Ratio.
Provided that no permission for construction of this shall
be given on landward side of any new roads (except roads
proposed in the approved Coastal Zone Management Plan which
are constructed on the seaward side of an existing road:"
148. Mr. Seervai submitted that paragraph 6(2) of 1991 Notification
inter alia provides that the development or the construction activities in
different categories of CRZ areas would be regulated by the concerned
authorities at the State / Union Territory level in accordance with the
norms provided therein. Thus, the 1991 Notification casts a
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responsibility on local authorities at the State level only to regulate the
building and construction activity with an investment exceeding Rs.5
crores. By 1997 Notification, MOEF amended the 1991 Notification.
The 1997 Notification restricted the requirement of clearance by MOEF
in paragraph 3(2)(iv) only to activities with investment exceeding Rs.5
crores and which are not regulated by the concerned authorities at State /
Union Territory level in accordance with paragraph 6(2) of the
Notification of 1997. In view of the 1997 Notification, the MMRDA
being the special planning authority for the area where the petitioners'
building is situate was the concerned regulating authority and / or the
concerned authority within the meaning of paragraph 3(2)(iv) of
paragraph 6(2) of the 1997 Notification. The development /
construction of the petitioners' building being regulated by MMRDA did
not require clearance as per paragraph 6(2)(iv) read with paragraph 6(2)
of the 1997 Notification.
149. On the other hand, Mr. Khambata submitted that the 1991
Notification does not create any dichotomy between regulation on the
one hand and clearance on the other. He submitted that a purposive
interpretation of the CRZ Notification requires that regulation and
clearance be treated at par and interchangeably. Any interpretation
giving them different meanings and scopes would undermine the effect
of the CRZ Notification and the regulation of activities in the CRZ. A
plain reading of paragraph 3 of the 1991 Notification indicates that the
Notification itself treats the environmental clearance as one of the
aspects of the regulation. In any event, in law, the expression
"regulation" has a very wide meaning and includes even a "prohibition".
In the absence of restrictive words, the power must be regarded as
plenary over the entire subject. It implies the power to rule, direct and
control. To read the expression 'regulated' appearing in paragraph 3(3)
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as limited to the mere clerical activity of determining whether a project
is to the landward or seaward side of an authorized existing structure or
road is to deliberately trivialize the regulatory role and to do violence to
the plain language of the CRZ Notification. It is a mis-characterization
of the State / Local Authority's CRZ regulatory function under the CRZ
Notification.
150. Mr. Khambata further submitted that 'clearance' and 'regulation'
are interchangeable. The 'regulation' is a wider expression, which
includes clearance as also prohibition. In the alternative, if the clearance
and regulation are to be given different meaning, regulation has a wider
meaning and will include clearance. He submitted that the Court has to
give purposive interpretation and the Court will hold that the clearance
and regulation are the same. In support of these submissions, he relied
upon (i) M/s. Hindstone32, and in particular paragraph 10 and (ii) K.
Ramnathan33, and in particular paragraphs 18 and 19 to contend that
regulation under CRZ Notification will include clearance as also
prohibition.
151. As noted earlier, there is no dispute that between 19.02.1991 and
08.07.1997 in terms of paragraph 3(2)(iv), all activities with investment
exceeding Rs. 5 crores would require environmental clearance from
MOEF, Government of India. The dispute is whether from 09.07.1997,
the clearance of either MOEF or the concerned authorities at the State /
Union Territory level is at all required. In our opinion, even after
09.07.1997, the clearance of State level authorities would be required
before carrying out activities with investment exceeding Rs.5 crores in
terms of amended paragraph 3(2)(iv). If the contention of Mr. Seervai
that clearance of MOEF or State level authorities is not required in
respect of plot falling in CRZ area is accepted, it will render CRZ
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Notification otiose. It is also not possible to accept submission of Mr.
Seervai that the construction activities are required to be regulated only
by the concerned planning authorities. If the contention of Mr. Seervai
is accepted, it will not make any difference between the plot falling in
CRZ area and the plot not falling in any of the CRZ areas. Because
even in respect of plots not falling in any of the CRZ area, for
construction activities, the permission of the concerned planning
authority is necessary. The very purpose of issuing notification under
E.P.Act will be defeated if the contention of Mr. Seervai is accepted.
152. In the case of M/s. Hind Stone32, the Apex Court considered its
earlier decision in G. K. Krishnan Vs. State of Tamil Nadu 79, wherein it
was observed that the word 'regulation' has no fixed connotation. Its
meaning differs according to the nature of the thing to which it is
applied. In modern statutes concerned as they are with economic and
social activities, 'regulation' must, of necessity, receive so wide and
interpretation that in certain situations, it must exclude competition to
the public sector from the private sector. Each case, it was said, must be
judged on its own facts and in its own setting of time and circumstances
and it might be that in regard to some economic activities and at some
stage of social development, prohibition with a view to State monopoly
was the only practical and reasonable manner of regulation. The Apex
Court was dealing with the Mines and Minerals (Regulation and
Development) Act and it was observed that the said Statute is aimed at
the conservation and the prudent and discriminating exploitation of
minerals. It was observed that surely, in the case of a scarce mineral, to
permit exploitation by the State or its agency and to prohibit exploitation
by private agencies is the most effective method of conservation and
prudent exploitation. If you want to conserve for the future, you must
prohibit in the present.
79 AIR 1975 SC 583
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153. In the case of K. Ramanathan33, it was observed in paragraph 18
that the word 'regulation' cannot have any rigid or inflexible meaning as
to exclude 'prohibition'. The word 'regulate' is difficult to define as
having any precise meaning. It is a word of broad import, having a
broad meaning and is very comprehensive in scope. In paragraph 19,
it was observed that the power to regulate carries with it full power
over the things subject to regulation and in absence of restrictive
words, the power must be regarded as plenary over the entire
subject. It implies the power to rule, direct and control and involves
the adoption of a rule or guiding principle to be followed, or the
making of a rule with respect to the subject to be regulated. The
power to regulate implies the power to check and may imply the
power to prohibit under certain circumstances, as where the best or
only efficacious regulation consists of suppression. It would,
therefore, appear that the word 'regulation' cannot have any
inflexible meaning as to exclude 'prohibition'. It has different
shades of meaning and must take its colour from the context in
which it is used having regard to the purpose and object of the
legislation, and the Court must necessarily keep in view the mischief
which the legislature seeks to remedy.
(emphasis supplied)
154. It is also relevant to note here that on 12.11.1997, Principal
Secretary to Government of Maharashtra addressed a letter to the
Municipal Commissioner of Corporation wherein it was clarified that
the total development permission cannot be stopped in CRZ area.
Municipal Commissioner was requested to scrutinize the proposals as
per 1991 Notification, subsequent letters dated 27.09.1997 and 1997
Notification. It was further set out therein that the development
proposals within a CRZ area in which investment exceeds rupees five
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crores should only be referred to State Government for clearance and
other proposals should be cleared by the Corporation as per the approval
of the Government of India, MOEF Notification and letter. In other
words, the clearance of the State Government was required in respect of
development proposals within the CRZ areas in which the investment
exceeds Rs. 5 crores and other proposals were required to be cleared by
Corporation as per the approval of Government of India, MOEF
Notification and letter. It, therefore, cannot be said that post 1997
Notification, clearance was not required at all.
155. It is settled principles of interpretation that if the provisions of
Statute are ambiguous and are not clear, the Court has to resort to
purposive interpretation. Bearing in mind the object for which the
E.P.Act was enacted as also the object for which the CRZ Notifications
are issued and the communication dated 12.11.1997, it has to be held
that even after 09.07.1997, the clearance of MOEF or authorities at State
level will be required to be obtained depending upon the activities
falling in amended paragraph 3(2)(iv) of 1997 Notification. It is only
after obtaining clearance from concerned authorities, the construction
activities can be carried out after obtaining permissions from the
concerned planning authorities. Question No.1 is answered accordingly.
Re: Question No.(2)
(2) If answer to the above question is in the affirmative then who is
the appropriate authority to grant clearance during the periods between -
a. 19.02.1991 and 08.07.1997;
b. 09.07.1997 and 04.01.2002;
c. 05.01.2002 and 21.04.2003;
d. 22.04.2003 and 30.12.2008;
e. 31.12.2008 and 05.01.2011; and
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f. 06.01.2011 onwards.
156. Mr. Khambata submitted that the competent Regulatory Authority
for CRZ-II for the different periods is as under:
Period Authority for regulatory permission
A. 19.02.1991 - 08.07.1997 (1) All paragraph 3(2) activities including
(iv) i.e. "All other activities with
19.02.1991: CRZ Notification investment exceeding rupees five crores" :
MOEF [paragraph 3(2) - page 210]
27.09.1996: CZMP for Maharashtra
approved by MOEF. (2) "...all development and activities ...
[CZMP Paragraph 2A(i) : All other than those covered in paragraph 2
relevant provisions of CRZ and paragraph 3(2) above" : State
Notification incorporated in CZMP Government / Union Territory
ig Administration / Local Authority [Para
CZMP paragraph 2A(xi) : 3(3)(ii) - page 210]
"Government of Maharashtra or
any other Authority so designated
shall be responsible for monitoring
and enforcement of the provisions of
CRZ Notifications and CZMP"]
B. 09.07.1997 - 04.01.2002 (1) All paragraph 3(2) activities including
(iv) i.e. above Rs.5 crores, other than
09.07.1997 Amendment to the CRZ development or construction activities
Notification (at Pg.217). Paragraph covered by paragraph 6(2) of Annexure I
3(2)(iv) substituted (at pg. 220) (in CRZ I, II and III) : MOEF.
[NB: MCZMA constituted on (2) Development/construction activities
26.11.1998 (pg.225) and renewed (paragraph 6(2) of Annexure I) regardless
for 3 years on 04.01.2002 (pg.228)] of value of investment : State
Government / Union Territory
Administration / Local authority
[paragraph 3(3)(ii) page 210] - referred to
as "concerned authorities at the
State/Union Territory level" [Para 6(2)
page 212]
[NOTE: From 12.11.1997, the State
Government directed the MCGM (at page
495) that proposals exceeding Rs.5 crores
were to be referred by the local authority
to the State Government.]
C. 05.01.2002 - 21.04.2003 (1) All paragraph 3(2) activities including
(iv) i.e. above Rs.5 crores, other than
Clause VIII of MCZMA development or construction activities
Notification of 04.01.2002 (page covered by paragraph 6(2) of Annexure I
229) required prior MCZMA (in CRZ I, II and III) : MOEF after the
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recommendation i.e. "before the MCZMA's CRZ recommendation.
project proposals are referred to the
Central Government or the (2) Development/construction activities
agencies who have been entrusted (paragraph 6(2) of Annexure I) regardless
to clear such projects under ... (the of value of investment : State
CRZ Notification)". This was a Government / Union Territory
condition precedent. Administration / Local Authority, after
the MCZMA's CRZ recommendation.
[Paragraph 3(3)(ii) page 210] - referred to
as "concerned authorities at the State /
Union Territory level" [Para 6(2) page
212]
D. 22.04.2003 - 30.12.2008 (1) Rs. 5 crores and over : MOEF after
the MCZMA's CRZ recommendation
Amendment to paragraph 3(2)(iv) of [paragraph 3(2)(iv) - page 249]
CRZ Notification (page 249)
(2) Under Rs.5 crores: Concerned
[NB: Notification dated 02.09.2005 ig authorities at the State / Union Territory
reconstituting MCZMA for 3 years level, after the MCZMA's CRZ
- Clause VIII continued.} recommendation [proviso to paragraph
3(2)(iv) - page 249 read with paragraph
3(3)(ii) - page 210]
E. 31.12.2008 - 05.01.2011 (1) Rs. 5 crores and over: MOEF after the
MCZMA's CRZ recommendation
Although the Notification
reconstituting MCZMA omitted (2) Under Rs.5 crores: Concerned
Clause VIII, proposal continued to authorities at the State / Union Territory
be sent to the MCZMA for its CRZ level, after the MCZMA's CRZ
approval. recommendation [paragraph 3(2)(iv) -
page 249 read with paragraph 3(2)(ii) -
page 210].
F. 06.01.2011 onwards (1) Over 20,000 sq. mtrs. built up are :
MOEF (after SEIAA environmental
(New CRZ Notification) clearance)
(2) Under 20,000 sq. mtrs. built up area :
MCZMA.
a. 19.02.1991 and 08.07.1997;
157. As noted earlier, 1991 Notification was amended on 09.07.1997.
It, therefore, follows that between 19.02.1991 and 08.07.1997, MOEF
was the Appropriate Authority to grant environmental clearance in term
of paragraph 3. As per paragraph 3(2), all activities (i) to (iii) and clause
(iv) i.e. "all other activities with investment exceeding Rs.5 crores,
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environment clearance from MOEF is necessary". As per paragraph
3(3)(ii), all development and activities within the CRZ other than those
covered in paragraph 2 and paragraph 3(2) are to be regulated by the
State Government, Union Territory Administration or the Local
Authority, as the case may be, in accordance with the guidelines given in
Annexures I and II of the Notification. In the present case, it is not
disputed that the building activity will not fall in clauses (i) to (iii) and
will fall in clause (iv) of paragraph 3(2) of the 1991 Notification. The
building activities will require environmental clearance from MOEF for
the period between 19.02.1991 and 08.07.1997.
b. 09.07.1997 and 04.01.2002;
158. As noted earlier, on 09.07.1997, 1991 Notification was amended
and clause (iv) in paragraph 3(2) was substituted. Environmental
clearance of MOEF is required in respect of activities covered by
clauses (i) to (iv) of paragraph 3(2) other than development or
construction activities covered by paragraph 6(2) of Annexure-I.
159. Environmental clearance of the State Government / Union
Territory Administration / Local Authority is required in respect of
development / construction activities covered by paragraph 6(2) of
Annexure-I, regardless of value of investment. This is evident from
paragraph 3(3)(ii) of 1991 Notification. At this juncture, it is relevant to
note that on 12.11.1997, Principal Secretary, Government of
Maharashtra addressed a letter to the Municipal Commissioner of
Corporation informing that the development proposals within the CRZ
area in which investment exceeds Rs.5 crores should only be referred to
the State Government for clearance and other proposals should be
cleared by the Corporation as per the approval of MOEF Notification
and letter dated 27.09.1996.
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160. Mr. Seervai strenuously contended that all the proposals were
considered and processed by the UDD, and therefore, UDD of
Government of Maharashtra is the appropriate authority to grant
environmental clearance. As against this, Mr. Shah submitted that
having regard to the Rules of Business pertaining to UDD and
Environment Department, the granting of environmental clearance falls
within the domain of Environment Department. We will deal with this
aspect in detail little later while answering question No.4. Suffice it say,
at this stage that we find substance in the submissions of Mr. Shah. We
have carefully perused the Rules of Business pertaining to UDD and
Environment Department. Perusal thereof clearly shows Environment
Department is authorized to deal with the subject of environment and all
other related matters. We are, therefore, of the opinion that between
09.07.1997 and 04.01.2002, the Environment Department of the
Government of Maharashtra was authorized to deal with the granting of
environmental clearance.
c. 05.01.2002 and 21.04.2003;
161. On 04.01.2002, MOEF issued order and added clause VIII which
requires that MCZMA has to examine all projects proposed in CRZ
areas and give their recommendations before the project proposals are
referred to the Central Government or the agencies who have been
entrusted to clear such projects under 1991 Notification. In view
thereof, all the activities including the activities covered by clause (iv)
of paragraph 3(2) i.e. above Rs. 5 crores, and other than development or
construction activities covered by paragraph 6(2) of Annexure-I,
environmental clearance from MOEF is required to be obtained after
obtaining MCZMA's recommendations. The environmental clearance of
State Government / Union Territory Administration / Local Authority is
required to be obtained after obtaining recommendations of MCZMA in
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respect of development / construction activities covered by paragraph
6(2) of Annexure I regardless of value of investment. This is evident
from paragraph 3(3)(ii) of 1991 Notification.
d. 22.04.2003 and 30.12.2008.
162. On 22.04.2003, MOEF issued Notification substituting clause (iv)
in sub-paragraph (2) of paragraph 3. Effect of that Notification is that
environmental clearance of MOEF is required to be obtained after
obtaining MCZMA's recommendations in respect of all activities with
investment of Rs.5 crores or more. As per the proviso to amended
clause (iv) of sub-paragraph (2) of paragraph 3, environmental clearance
at State / Union Territory level is required to be obtained after obtaining
MCZMA's recommendations in respect of activities involving
investment of less than Rs. 5 crores. This is evident from proviso to
paragraph 3(2)(iv) of 2003 Notification read with paragraph 3(3)(ii) of
1991 Notification.
163. It is not in dispute that and it is a matter of record that in exercise
of powers conferred by sub-section (1) and clause (v) of sub-section (2)
of Section 3 of the E.P.Act read with sub-rule (3) and (4) of Rule 5 of
the EP Rules, the Central Government made amendments in 1991
Notification and substituted clause (iv) as under:
"(iv) Demolition or reconstruction of -
(i) buildings of archaeological or historical importance
(ii) heritage buildings; and
(iii) buildings under public use.
Explanation: - For the purpose of this clause iv, 'public use'
shall include use for purposes of worship, education, medical care
and cultural activities.
(iv) All other activities with investment of five crore rupees
or more:
Provided that activities involving investment of less than five
crore rupees shall be regulated by the concerned authorities at the
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State or Union Territory level in accordance with the provision of
sub-paragraph (2) of paragraph 6 of Annexure-I of this notification:
164. Perusal of the amended clause (iv) of paragraph 3(2) shows that
all other activities with investment of Rs.5 crores or more will require
environmental clearance from MOEF and activities involving
investment of less than Rs. 5 crores are required to be regulated by the
concerned authorities at the State or Union Territory level in accordance
with the provisions of paragraph 6(2) of Annexure I of 1991
Notification. In the present case, the building activity exceeded Rs. 5
crores and consequently, environmental clearance is required to be
obtained from MOEF.
e. 31.12.2008 to 05.01.2011
165. Although the Notification reconstituting MCZMA omitted clause
VIII, Mr. Khambata submitted that proposals continued to be sent to the
MCZMA for its CRZ recommendations. He submitted that if the
investment exceeded Rs.5 crores, the clearance was given by MOEF
after obtaining recommendations from MCZMA. In respect of
investment under Rs.5 crores, the concerned authorities at the State /
Union Territory level were giving clearance after obtaining
recommendations of MCZMA as per paragraph 3(2)(iv) of 2003
Notification read with paragraph 3(3)(ii) of 1991 Notification.
f. 06.01.2011 onwards
166. Mr. Khambata submitted that projects / construction involving
more than 20000 sq.mtrs. built up area under CRZ-II are considered in
accordance with the Environmental Impact Assessment Notification,
2006 by MOEF after the State Environmental Impact Assessment
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Authority has granted environmental clearance and in case of projects
less than 20000 sq.mtrs. built up area, MCZMA, after obtaining
recommendations from MCZMA. Thus, question no.2(a) to 2(f) is
answered accordingly.
Re: Question No.(3)
(3) (a) Whether in terms of paragraph VIII of order dated 04.01.2002
of MOEF, prior recommendations of MCZMA are mandatorily
required to be obtained before the project proposals are referred to
the Central Government or the agencies who have been entrusted
to clear such projects under 1991 Notification? and
(b) Whether prior recommendations of MCZMA are necessary
before change of reservation / zoning?
167. As noted earlier, on 26.11.1998, in exercise of the powers
conferred by sub-sections (1) and (3) of Section 3 of the E.P.Act, the
Central Government constituted MCZMA conferring certain powers on
it. On 04.01.2002, MCZMA was reconstituted and by paragraph VIII,
MCZMA was empowered to examine all projects proposed in CRZ area
and give their recommendations before the project proposals are referred
to the Central Government or to the agencies who have been entrusted to
clear such projects under 1991 Notification. The question is whether the
prior recommendations of MCZMA are mandatorily required to be
obtained or not?
168. Mr. Khambata submitted that Section 24 of the E.P.Act has
overriding effect. Unless and until, recommendations of MCZMA are
obtained, neither the Central Government nor the agencies who have
been entrusted to clear such projects can consider granting of
environmental clearance. In other words, he submitted that
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recommendations of MCZMA are mandatory and are condition
precedent before Central Government or other agencies entrusted to
clear the project. In support of these submissions, he relied upon
following decisions:
(i) V. M. Kurian36, and in particular paragraphs 7 and 8;
(ii) Dinkar Anna Patil37, and in particular paragraphs 8 and
18; and
(iii) Manbodhan Lal38, and in particular paragraph 7
thereof.
169. In the case of V. M. Kurian36, the construction of the provisions
of the Kerala Municipal Building Rules and particularly, Rule 5 thereof,
fell for consideration. Rule 5 thereof empowered Government to
examine buildings and it laid down that the Government may in
consultation with the Chief Town Planner exempt (any building) from
the operation of all or any of the provisions of these rules subject to
conditions if may, to be stipulated in the order, granting such
exemptions. Proviso thereto laid down that such exemption shall be
considered on individual application forwarded to the government
through the Greater Cochin Development Authority (GCDA) and the
Chief Town Planner with their specific recommendations;
170. After considering Rule 5 in paragraph 7, the Apex Court posed
the question namely whether in the absence of recommendation by
GCDA and the Chief Town Planner, the State Government was
competent to grant exemption from operation of the Rules for
construction of a high-rise building. The Court noted the dictionary
meaning of the word 'recommend' is "to advise", "to praise or
commend". In P. Ramanatha Aiyar's Law Lexicon, the meaning of the
word 'recommendation' is a 'statement expressing commendation or a
message of this nature' or suggests fit. It was noted that the word
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'recommendation' is not defined in the Rules, and therefore, observed
that in such a situation, the meaning of the word has to be understood in
the context of the provisions of the Rules and the object behind such
Rules. The Rules provide for regulation and construction of building in
an urban area. The object behind the Rules is maintenance of public
safety and convenience. The Municipal Corporation, GCDA, and the
Chief Town Planner are entrusted with the functions and duties for
carrying out development and regulation of building in the urban area.
These are the authorities on the spot who have special and technical
knowledge to advise the Government whether public safety and
convenience requires dispensing with the provisions of the Rules while
permitting construction of an eight storeyed building. Thus, the meaning
of the word 'recommend', when read in the context of Rules shows that
it means 'giving of a favourable report opposed to an unfavourable one'.
The Apex Court, therefore, held that the recommendations by GCDA
and the Chief Town Planner are sine qua non for granting exemption
from operation of the Rules by the State Government. In the absence of
such recommendations, the State Government was not legally justified
in granting exemption from operation of the Rules for construction of a
high-rise building.
171. In the case of Dinkar Anna Patil37, the Apex Court considered
Rule 4-A of the Maharashtra Sales Tax Officers Class-I (Recruitment)
(Amendment) Rules, 1987, which provided that notwithstanding
anything contained in Rule 4, if in the opinion of the State Government,
the exigencies of service so require, the Government may, in
consultation with the Maharashtra Public Service Commission,
wherever necessary, make appointments to the posts in relaxation of the
percentage prescribed in Rule 4 for appointment by promotion and
nomination. The Tribunal held that the word 'may' is directory. The
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Apex Court held that such a meaning would render the very object of
consultation with the MPSC wherever necessary nugatory. It would
give unbridled power to the Government to dispense with the
consultation with MPSC which may result into arbitrary exercise of the
powers by the Authority. In our opinion, if it is held that the
recommendations of MCZMA are directory and not mandatory, the very
object of obtaining prior recommendations of MCZMA would be
rendered nugatory and otiose. It would give unbridled power to the
Central Government or the agencies concerned, which may result into
arbitrary exercise of the powers while granting environmental clearance
by these authorities. That could never be the object of adding clause
VIII by order dated 04.01.2002.
172. In the case of Manbodhan Lal38, the Apex Court dealt with
Articles 320 and 323 of the Constitution. Article 320 requires
consultation of Public Service Commission in conducting examinations
for appointments as also on all matters relating to methods of
recruitment. It was further observed that once relevant regulations have
been made, they are meant to be followed and it goes without saying
that consultation with the Commission on all disciplinary matters
affecting a public servant has been specifically provided for, in order,
first, to give an assurance to the Service that a wholly independent body
not directly concerned, with the making of orders adversely affecting
public servants, has considered the action proposed to be taken against a
particular public servant, with an open mind; and secondly, to afford the
Government unbiased advice and opinion on matters vitally affecting the
morale of public services. It is, therefore, incumbent upon the Executive
Government when it proposes to take any disciplinary action against a
public servant, to consult the Commission as to whether the action
proposed to be taken was justified and was not in excess of the
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requirements of the situation.
173. We have perused the Notification dated 26.11.1998 as also order
dated 04.01.2002. The composition of MCZMA shows that it consists
of (i) Secretary, Department of Environment, Government of
Maharashtra, (ii) Secretary, Department of Revenue and Forest,
Government of Maharashtra, (iii) Secretary, UDD, Government of
Maharashtra, and (iv) experts in fields relating to environment. In our
opinion, MCZMA consists of experts in the field of environment.
Considering the composition as also power conferred on MCZMA, we
are of the opinion that the Central Government or the agencies, who
have been entrusted to clear the projects under 1991 Notification cannot
clear the said projects unless MCZMA first examines all projects
proposed in CRZ area and gives their recommendations before project
proposals are referred to these authorities. We have already noted that
the E.P. Act is enacted with a view to providing for the protection and
improvement of environment and for matters connected therewith.
Decisions were taken at the United Nations Conference on the Human
Environment held at Stokholm in June 1972, in which India participated,
to take appropriate steps for the protection and improvement of human
environment.
174. Section 3(1) lays down that subject to the provisions of the
E.P.Act, the Central Government shall have the power to take all such
measures as it deems necessary or expedient for the purpose of
protecting and improving the quality of the environment and preventing,
controlling and abating environmental pollution. Clause (v) of sub-
section (2) of Section 3 lays down that in particular, and without
prejudice to the generality of the provisions of sub-section (1), such
measures may include measures with respect of all or any of the
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following matters namely, (v) restriction of areas in which any
industries, operations, processes or class of industries, operations or
processes shall not be carried out or shall be carried out subject to
certain safeguards. Section 24 of the E.P.Act deals with effect of other
laws. It provides that subject to the provisions of sub-section (2), the
provisions of the E.P.Act and the rules or orders made thereunder shall
have effect notwithstanding anything inconsistent therewith contained in
any enactment other than E.P.Act. In other words, the provisions of the
E.P.Act and the rules or orders made thereunder are given overriding
effect.
175. We have already extracted Clause VIII or order dated 04.01.2002.
As per that clause, MCZMA has to examine all projects proposed in the
CRZ areas and give their recommendations before the project proposals
are referred to the Central Government or the agencies who have been
entrusted to clear such projects under the 1991 Notification. The
expression 'recommendation' is not defined either in the E.P. Act or in
the E.P. Rules. In such a situation, the meaning of the word has to be
understood in the context of the provisions of the Act and Rules and the
object behind such provisions. MOEF and the agencies who have been
entrusted to clear such projects are obliged to protect and improve
environment. The members of the MCZMA have special and technical
knowledge in the field of environment. In view of the decision of V. M.
Kurian36, it has to be held that the recommendations by MCZMA are
sine qua non for considering the project proposals by the Central
Government or the agencies entrusted for granting clearance. In the
absence of such recommendations, the Central Government or the
agencies concerned will not be justified in granting clearance for
construction of a building.
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176. As the members of MCZMA are having special and technical
knowledge in the field of environment, it can give unbiased advice and
opinion on matters vitally affecting the environment as held in
Manbodhan Lal38. In view thereof, the recommendations of MCZMA
are mandatorily required to be obtained, and therefore, is condition
precedent. Question No.3(a) is answered accordingly.
3(b) Whether prior recommendations of MCZMA are necessary before
change of reservation / zoning?
177. Mr. Seervai submitted that respondents relied upon paragraph 20
of Sneh Mandal's case42 wherein it is held that for changes in the
zoning in respect of the concerned plots, the prior approval of MCZMA
was a must. He submitted that the ratio in that decision is not applicable
in the present case. He submitted that in that case, the Court was
concerned with plots 146 and 147, which are abutting the sea on two
sides namely, on the southern side as well as on the western side. Plots
No.146 and 147 were shown as a garden in the Development Plan. The
Division Bench held that having regard to the location of these plots,
they are not only abutting the sea but are only touching the high tide
lines on two sides. Further, these plots are on the seaward side of the
main road and are even 500 mtrs from the High Tide Line and there
exists no authorized structure from which the imaginary line could be
drawn as contemplated by clarification issued by MOEF on 08.09.1998.
The Court further observed that at the relevant time, these plots were
partially submerged by the sea on the Northern portion of plot No.147.
He, therefore, submitted that it is amply clear from the situation, which
was before the Division Bench that plots 147 and 148 were in fact in
CRZ-I which is also clear from the fact that there was no authorized
structure from which the imaginary line could be drawn through.
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178. He further submitted that approval of MCZMA was required in
that case because in the draft Development Plan, these plots were
earmarked for residential / government housing by MMRDA, being the
Special Planning Authority which would have resulted into the changes
in the classification of CRZ from CRZ-I to CRZ-II. In the light of
change in the classification of CRZ, the approval of MCZMA was
necessary, being one of the functions of the MCZMA under paragraph
II(i) and paragraph IX of the order dated 04.01.2002.
179. As against this, Mr. Khambata submitted that the Division Bench
in Sneh Mandal's case42 has held that reservations in the Development
Plan are frozen as on 19.02.1991 and any change in reservation has no
effect unless approved of by the MCZMA. He submitted that the
contention advanced by the petitioners that the said decision is in respect
of CRZ-I area / plots is incorrect. Sneh Mandal's case42 was
concerning plots at Cuffe Parade ('A' Ward) falling in CRZ-II. Plots 146
and part of plot No.147 (on which there was a reservation for garden)
were not in or under the sea or un-reclaimed much less were they
foreshore land which is evident form paragraphs 18 to 20. He,
therefore, submitted that plots 146 and 147 (part) were not in CRZ-I. It
was the reservation of these plots (as garden) that was sought to be
changed to residence / government housing requiring MCZMA approval
not of adjoining plots No.143, 144 and 145, which were as yet un-
reclaimed. Plots 146 and 147 were existing plots but bordered by the
sea on three sides. The question, therefore, arose as to how the
imaginary line could be mapped. He submitted that the concept of
imaginary line applies only to CRZ-II and is usually drawn between two
adjoining plots - one from an existing authorized structure on the plot to
the right and the other from the existing authorized structure to the left
of the subject plot as per letter dated 27.03.1998 an clarification dated
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08.09.1998 issued by MOEF.
180. He further submitted that there is no question of "deemed
conversion" of the area behind the line from CRZ-I to CRZ-II. Both the
area behind as well as that in front of the imaginary line remain in CRZ-
II. It was never CRZ-I which is defined as "Category I (CRZ-I)" in
Annexure I to the 1991 Notification, which reads thus,
"Category I (CRZ-I):
(i) Areas that are ecologically sensitive and important, such as
national parks/marine parks, sanctuaries, reserve forests, wildlife
habitats, mangroves, corals / coral reefs, areas close to breeding
and spawning grounds of fish and other marine life, areas of
outstanding natural beauty/historical/heritage areas, areas rich in
genetic-diversity, areas likely to be inundated due to rise in sea
level consequent upon global warming and such other areas as
may be declared - by the Central Government or the concerned
authorities at the State / Union Territory level from time to time.
(ii) Area between the Low Tide Line and the High Tide Line."
181. We find merit in the submission of Mr. Khambata. In paragraph
2, the Division Bench framed three points for determination. Point No.3
was to the following effect:
"(c) Whether change of user from garden / playground to
government housing / residence on plots No.146 and 147 is in
contravention of CRZ Notification of 1991?"
182. In paragraphs 18 and 19, it was noted that MMRDA prepared a
draft development plan for 'A' Ward in which plots 146 and 147 were
shown as garden. The Corporation prepared draft development plan and
in the modified draft development plan, plots 146 and 147 were
earmarked for residential / government housing to which petitioners
raised objections. In paragraph 20, the Division Bench recorded
findings. It was observed that plots 146 and 147 were shown as garden
on the development plan when 1991 Notification came into force. A
part of plot 147 is subsequently earmarked for road. In the affidavit
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made by MMRDA, it was further stated that no proposal has been
received from the Government with regard to government housing. It
was thereafter observed that looking to the location of plots, it is clear
that they are not only abutting the sea but are only touching the high tide
lines on two sides. Further, these plots are on the seaward side of the
main road and are even 500 mtrs from the High Tide Line. There is
no authorized structure from which the imaginary line could be drawn as
contemplated by clarification issued by MOEF on 08.09.1998.
183. We have already extracted classification of CRZ-I. It neither falls
in (i) nor in (ii) of category-I, CRZ-I. In other words, Division Bench
was dealing with plots in CRZ-II. We are, therefore, of the view that
even for change of reservation / zoning, prior approval of MCZMA was
necessary. In the instant case, on 10.04.2002, the State Government
reduced the width of Captain Prakash Pethe Marg from 60.97 mtrs. to
18.40 mtrs. Area so deleted was included partly in residential among
others. In our opinion, in view of the decision of Sneh Mandal CHS42
without obtaining prior approval of MCZMA, the State Government
could not have changed the reservation from road to residential as far as
the subject plot is concerned. Question No.3(b) is answered accordingly.
Re: Question No.(4)
(4) Whether in law it is the UDD or Environment Department of
Government of Maharashtra is authorized to grant clearance during the
period between 09.07.1997 and 21.04.2003?
184. As noted earlier, in exercise of powers under Section 3(1) and
3(2)(v) of the E.P.Act, and Rule 5(3)(d) of the EP Rules, MOEF issued
1991 Notification. Paragraph 4 thereof deals with procedure for
monitoring and enforcement and reads thus:
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"Procedure for monitoring and enforcement: The Ministry of
Environment and Forest and Government of State or Union
Territory and such other authorities at the State / Union
Territory levels, as may be designated for this purpose, shall be
responsible for monitoring and enforcement of the provisions of
this Notification within their respective jurisdictions."
185. It is, therefore, necessary to find out whether as far as the State of
Maharashtra is concerned, any authority / department is designated for
monitoring and enforcing 1991 Notification. Perusal of affidavit dated
14.07.2011 made by Mr. Sanjay R. Kurve shows that, it is specifically
asserted that UDD, State of Maharashtra was not the competent
authority authorized to grant NOC under CRZ Regulations. The projects
proposed in CRZ areas were to be first examined by MCZMA as per the
order dated 04.01.2002 and given recommendations before the project
proposals are referred to the Central Government or the agencies
entrusted to clear such projects. This is reiterated by Mr. Kurve in
paragraph 15 of the same affidavit. Mr. T. C. Benjamin, Principal
Secretary, UDD made affidavit dated 19.01.2011 in Writ Petition
No.2407 of 2010. In paragraph 10, it is asserted that petitioners ought to
have obtained NOC from the Environment Department for carrying out
any construction activity as the subject plot is situate in CRZ II.
Petitioners did not even make an application for obtaining NOC from the
Environment Department. In paragraph 3(b), it is asserted that approval
of the Environment Department was required to be obtained.
186. Perusal of the Rules of Business framed by the State of
Maharashtra in respect of UDD and Environment Department shows that
the grant environmental clearance clearly falls within the domain of
Environment Department. The Environment Department is authorized
to deal with the subject of environment and all other related matters. The
said subject does not fall within the domain of UDD.
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187. In view of the Rule of Business framed by the State Government,
we are clearly of the opinion that it was the Environment Department
and not UDD, who is the Competent Authority to consider granting of
environmental clearance after obtaining MCZMA's recommendations
post 04.01.2002. Question No.4 is answered accordingly.
Re: Questions No.(5) to (7)
(5) Whether communication dated 11.03.2003 of MOEF constitutes
its clearance?
(6) Whether communication dated 15.03.2003 of UDD, Government
of Maharashtra constitutes clearance of State Level Agency?
(7) Whether communications dated 11.03.2003 and 15.03.2003
collectively constitutes clearance under CRZ Notification?
188. Mr. Seervai submitted that communication dated 11.03.2003 of
MOEF constitutes its clearance. In any case, communication dated
15.03.2003 of UDD, Government of Maharashtra constitutes clearance
of State Level Agency. At any rate, communications dated 11.03.2003
and 15.03.2003 collectively constitute clearance under CRZ
Notification. On the other hand, learned Counsel for the respondents
submitted that petitioners have not obtained clearance either from
MOEF or from State Level Agency.
189. In order to appreciate this submission, it is necessary to deal with
the correspondence between 05.10.2002 and 15.03.2003, and in
particular 6 documents referred hereinabove. On 05.10.2002, Deputy
Secretary, UDD, Government of Maharashtra addressed a
communication to the Secretary, MOEF. After giving the background,
he requested for issuing NOC for development of the subject plot. The
copy of the said communication was not sent to MCZMA. During the
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course of evidence before Justice J. A. Patil's Commission, Mr.
Deshmukh admitted that his letter dated 05.10.2002 is not an application
seeking environmental clearance for construction of Adarsh building
under CRZ Notification. His letter dated 05.10.2002 cannot be
construed as an application for NOC under the 1991 Notification. It was
never his intent while writing letter dated 05.10.2002 to file application,
as required under 1991 Notification inasmuch as on that date Society
was not registered; LOI was not issued by the Government of
Maharashtra; neither Notification of allotment was issued nor possession
of plot was given to Adarsh Society. He further admitted that MOEF's
letter dated 11.03.2003 is not an environmental clearance under 1991
Notification for construction of Adarsh building. He was further put
question namely, whether MCZMA's recommendation was condition
precedent under CRZ Notification as amended from time to time before
MOEF or the State Authority could grant environmental clearance for
construction and he replied it in the affirmative. He was also put
question whether Deputy Secretary, UDD is competent to issue NOC
from CRZ point of view to which he replied that it is the Principal
Secretary of UDD who is the appropriate authority to issue such NOC.
In the cross-examination at page 1259, he admitted that when he
addressed a letter dated 05.10.2002, he was fully aware that the power to
issue NOC was with the State Government and permission was required
to be obtained by the proponent of the project. He further admitted that
MCZMA's recommendation was a condition precedent under the CRZ
Notification, as amended from time to time, before MOEF or State
Government Authority could grant environmental clearance for
construction. Thus, it is evident that after 04.01.2002, recommendations
of MCZMA are mandatorily required to be obtained. Admittedly, in the
present case, petitioners have not obtained recommendations of
MCZMA. In fact, having regard to the Rules of Business referred
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hereinabove, UDD was not the competent department to grant
environmental clearance. Mr. P. V. Deshmukh was holding the post of
Deputy Secretary. It is, therefore, not expected from Mr. Deshmukh to
be unaware of this position. Despite that, he addressed a letter dated
05.10.2002 to MOEF for issuing environmental clearance. We will deal
with this aspect in detail at a later stage. Suffice it to say that Mr.
Deshmukh had no authority to address a letter dated 05.10.2002 to
MOEF seeking NOC as at the relevant time, it was the State
Government who was authorized to issue NOC.
190. That apart, Mr. Deshmukh further admitted that MOEF's letter
dated 11.03.2003 is not an environmental clearance under 1991
Notification for construction of Adarsh building. He further admitted
that MCZMA's recommendations was a condition precedent under the
CRZ Notification, as amended from time to time, before MOEF or the
State Level Authority could grant environmental clearance for
construction.
191. What is significant to note that when Mr. Deshmukh addressed a
letter on 05.10.2002, even Letter of Intent was not issued to the
petitioners much less allotment letter. LoI was issued on 18.01.2003 and
the allotment letter was issued on 09.07.2004 and possession of the
subject plot was handed over on 04.10.2004. Even on this count, the
exercise undertaken by Mr. Deshmukh by addressing letter on
05.10.2002 was wholly uncalled for. This is to be appreciated on the
backdrop of the fact that Mr. Deshmukh had made application for
membership on 12.03.1999, though attempt is made to show that he
made application on 10.02.2003. At that time, the Society was neither
registered nor the plot was allotted. Mr. Deshmukh further admitted that
Principal Secretary of UDD is the appropriate authority to issue NOC
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from CRZ point of view.
192. Communication dated 11.03.2003 reads thus,
" Government of India
Ministry of Environment & Forests
(IA-III Division)
Paryavaran Bhavan,
C.G.O. Complex, Lodhi Road,
New Delhi - 110 003
Dated 11th March, 2003
To,
Shri P. V. Deshmukh,
Dy. Secretary,
Govt. of Maharashtra,
Urban Development Department,
Mantralaya, Mumbai 400032.
Sub: Development Permission on land deleted 60.96 mt. To
18.40 mt. Road for residential purposes, BBR Block III
to VI, Adarsh Co-operative Housing Society.
****
Sir,
This has reference to your letter No.TPB 2009/1095/CR-
154/99/UD 12, dated 4th January, 2003 regarding the subject
mentioned above. As per the information provided in the above
letter and the revised Coastal Zone Management Plan of Greater
Mumbai, it is noted that the proposed residential complex falls
within the Coastal Regulation Zone-II area. This Ministry has
already delegated the powers to the concerned State Government
for undertaking development in Coastal Regulation Zone-II.
Accordingly, the proposed construction may be taken up as per
the Coastal Regulation Zone Notification, 1991 (as amended from
time to time) and the approved revised Coastal Zone Management
Plan of Greater Mumbai.
Yours faithfully,
sd/-
(A. Senthil Vel)
Joint Director "
193. Perusal of communication dated 11.03.2003 shows that by that
communication, MOEF informed that it has already delegated the
powers to the concerned State Government for undertaking development
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in CRZ-II, and accordingly, the proposed construction may be taken up
as per 1991 Regulations (as amended from time to time) and the
approved revised CZMP for Greater Mumbai. During the course of
arguments, Mr. Seervai conceded that the plain language of
communication dated 11.03.2003 does not amount to clearance. He
however submitted that communications dated 11.03.2003 and
15.03.2003 collectively constitute clearance.
194. Apart from concession, as noted earlier, even Mr. Deshmukh
admitted before Justice J. A. Patil's Commission that his letter dated
05.10.2002 was not an application seeking environmental clearance
from MOEF. That apart, letter dated 11.03.2003 is also not clearance
from MOEF. Dr. A. Senthil Vel had filed affidavit made some time in
December 2011 before Commission of Inquiry headed by Justice J. A.
Patil. In paragraph 13, it is contended that letter dated 11.03.2003
issued by MOEF cannot be interpreted as environmental clearance.
1991 Notification contains the entire mechanism for the same, under
which the following information is required for consideration of any
proposal seeking clearance:
(i) Cost of the project and the details of project authority.
(ii) Details of survey numbers of land in possession.
(iii) Project area superimposed on the CZMP.
(iv) Categorization of the CRZ area.
(v) Recommendations from the State / Union Territory Coastal
Zone Management Authority.
(vi) Details of Floor Space Index and Floor Area Ratio.
(vii) Environmental issues / aspects of the project.
195. After considering any proposal under 1991 Notification, Ministry
issues clearance letter in a prescribed format clearly indicating that the
project has been accorded clearance under the provisions of 1991
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Notification. Along with this affidavit, communication dated
23.01.2002 giving environmental clearance and communication dated
22.08.2003 giving environmental clearance in two cases is annexed as
exhibits XVI in favour of TIFR and XV in favour of Khar Land
Development Circle (KLDC) respectively. Comparison of these
clearances with communication dated 11.03.2003 of MOEF leads to an
irresistible conclusion that the communication dated 11.03.2003 cannot
be construed as environmental clearance. This aspect is considered in
paragraphs 14(v) and (vii) of the report dated 13.01.2011 made by the
respondent No.4 Dr. Nalini Bhat as also reference is made in paragraphs
3(c) and (e) of the press note dated 28.10.2010.
196. After going through the communication dated 11.03.2003, we are
satisfied that the same cannot be construed as clearance of MOEF. This
is more so when admittedly, as per order dated 04.01.2002,
recommendations of MCZMA were not obtained. We have already held
that before the Central Government or agencies entrusted to clear such
projects, the MCZMA has to examine the projects proposed in CRZ
areas and has to give recommendations before referring the same to the
Central Government or the Agencies. We are, therefore, of the opinion
that communication dated 11.03.2003 does not constitute clearance of
MOEF. Thus, the contention of the petitioners that communication
dated 11.03.2003 constitutes CRZ clearance is without any substance.
197. Now the next question is whether communication of 15.03.2003
of Deputy Secretary, UDD, Government of Maharashtra constitutes
clearance. The said communication reads thus,
"Government of Maharashtra
No. TPB 2099/1095/CR-154/99/UD-12
Urban Development Department,
Mantralaya, Mumbai-400 032.
WP369chamber.odt
Dated : 15th March, 2003.
To
The Chief Engineer
(Development Plan),
Brihanmumbai Municipal Corporation,
Fort, Mumbai.
Sir,
Sub : Development permission on land deleted
60.96 mtr. road for residential purpose, BBR
Block III to VI, Adarsha Co-op. Housing Society.
Reference : 1) Office letter No.TPB 2099/1095/CR-
154/99/UD-12 dated 10th April, 2002.
2) MOEF letter No.FF No.J-17011/46/
2002/1A III dated 11th March, 2003.
The Government in Urban Development Department vide
Notification No.TPB 2099/1095/CR-154/99 (A) / UD-12, dated
10th April, 2002 sanctioned the modification to the Development
Plan of Mumbai Backbay Reclamation area under Section 37(2)
of the Maharashtra Regional and Town Planning Act, 1966 as
regards change in the width of the Prakash Pethe Marg. By virtue
of this modification, the width of Prakashpethe Marg was
modified to 18.440 mtrs. from 60.97 mtrs. and in the area so
deleted, as shown on the accompanied plan of the Notification
was included partly in residential zone, parade ground, Helipad
and BEST Depot. The matter was referred to the Ministry of
Environment, Government of India as regards modification since
it falls in CRZ-II area. It was specifically noted in the
Notification that the development of land within Coastal Zone
area CRZ-II shall be subject to the conditions mentioned in
Government of India, Ministry of Environment and Forests
Notification No.SO 114 (E) dated 19th February, 1991 as modified
from time to time. Accordingly, the reference was made to the
Government of India MOEF seeking permission for the Adarsha
Co-op. Housing Society to allow them to have a building on the
land which falls in residential zone vide Government letter dated
4th January, 2003. The Ministry of Environment and Forests have
communicated their no objection to allow the said residential
development since it falls within the Coastal Regulation Zone II
area which satisfies the norms of Notification dated 19 th February,
1991 and amendments made therein made upto 21st May, 2002.
Now, there appears therefore, no objection to allow the residential
development to the Adarsha Co-op. Housing Society on the land
included in residential zone as per the notifications sanctioned by
the Government. The copy of the letter dated MOEF dated 11 th
March, 2003 is enclosed herewith for ready reference.
WP369chamber.odt
Yours sincerely,
sd/-
(P. V. Deshmukh)
Deputy Secretary to Government.
Copy to :
1) Chief Planner, Mumbai Metropolitan Region Development
Authority, Mumbai.
2) The Executive Engineer (Bldg. proposal), Municipal
Corporation of Gr. Mumbai, Byculla.
3) The Chairman, Adarsh Co-op. Housing Society, Mumbai."
198. In the first place, as per the Rules of Business referred
hereinabove, UDD was not the appropriate authority to consider
proposal for grant of environmental clearance. Secondly, even as on
15.03.2003, recommendations of MCZMA were not obtained. UDD,
therefore, could not have considered and issued environmental clearance
on 15.03.2003. Thirdly, perusal of communication dated 15.03.2003
shows that, it is entirely based on communication dated 11.03.2003 of
MOEF. In other words, the communication dated 15.03.2003 was not
independent of communication dated 11.03.2003 and the said letter
recorded that MOEF communicated their no objection to allow the
residential development since it falls in CRZ area. Once it is held that
communication dated 11.03.2003 does not constitute clearance, equally,
the communication dated 15.03.2003 cannot be construed and
considered as environmental clearance. Apart from that, Mr. Deshmukh
admitted before Justice J. A. Patil's Commission that MOEF's letter
dated 11.03.2003 is not an environmental clearance. We are, therefore,
clearly of the opinion that communication dated 15.03.2003 of Mr. P. V.
Deshmukh, Deputy Secretary, UDD, Government of Maharashtra does
not constitute clearance of the State Level Agency.
199. The next question is whether the communications dated
11.03.2003 and 15.03.2003 collectively constitute environmental
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clearance. For the reasons already indicated, we are clearly of the
opinion that these communications collectively also do not constitute
environmental clearance. In other words, petitioners have not obtained
environmental clearance either from MOEF or from State Level Agency
and proceeded to carry out construction in the absence of
recommendations of MCZMA as also environmental clearance either
from MOEF or State Level Agency.
200. Mr. Seervai submitted that note dated 10.03.2003 prepared by Dr.
A. Senthil Vel read with communication dated 11.03.2003 unequivocally
indicate NOC of MOEF. In fact all the authorities acted upon
communications dated 11.03.2003 and 15.03.2003 on the basis that
environmental clearance was obtained by the petitioners. It is only after
7 years, respondents are contending that letter dated 11.03.2003 of
MOEF is clarificatory in nature and does not constitute environmental
clearance. All that was required to be done by MCZMA was done by
MOEF and no recommendations of MCZMA were required. For the
reasons already indicated, we do not find any merit in any of the
submissions. Questions No.5 to 7 are answered accordingly.
Re: Question No.(8)
(8) Which of the DCRs namely, 1967 DCR, draft 1989 DCR, 1991
DCR are, in the facts and circumstances of the present case, applicable?
201. Mr. Seervai submitted that the question namely which of the
Development Control Regulations are applicable in the present case,
namely 1967, 1989 or 1991 Regulations, is wholly irrelevant. He
submitted that it is not for the petitioners to elect which DCR is
applicable. The Planning Authority namely, MMRDA applied 1989
Draft DCR being stringent of the two namely 1967 and 1989 Draft
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DCR.
202. Mr. Seervai submitted that on 20.07.1990, Government of
Maharashtra sanctioned Final Development Plan under Section 31(1) of
M.R.&T.P. Act in respect of 'A' Ward where the subject plot is situate.
The said Plan was brought into force with effect from 01.09.1990. 1989
Draft DCRs will be applicable and not 1967 DCR. He submitted that in
the case of Suresh Estate1, the Apex Court was dealing with property in
'C' ward. As far as 'C' ward is concerned, there was no final
development plan in force at the relevant time. In other words, the
decision of Suresh Estate is not applicable to the facts of the present
case. In particular, he invited our attention to paragraphs 7, 24 and 25
thereof. On the other hand, respondents submitted that the judgment of
Suresh Estate1 applies on all fours and 1967 DCR are applicable in the
present case.
203. In order to appreciate these submissions, it is necessary to have a
glance at 1991 Notification. Paragraph 6(2) thereof lays down that the
development or construction activities in different categories of CRZ
areas shall be regulated by the concerned authorities at the State / Union
Territory level, in accordance with the norms laid down in the respective
CRZ areas. Insofar as CRZ-II areas area concerned, buildings are
neither permitted on seaward side of the existing road (roads proposed
in the approved CZMP of the area) nor on seaward side of the existing
authorized structures. Buildings permitted on the landward side of the
existing and proposed roads / existing authorized structures are subject
to the existing Local Town and Country Planning Regulations including
the existing norms of FSI / FAR. Thus, one has to find out which are
the existing norms of FSI / FAR as per 1991 Notification.
(emphasis supplied)
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204. As noted earlier, by Notification dated 15.06.1983, State of
Maharashtra appointed MMRDA (the then BMRDA) as the Special
Planning Authority under Section 40(1)(c) of M.R.&T.P. Act in respect
of the notified area of BBRS Blocks III-VI. MMRDA became the
Planning Authority under Section 2(19) of the M.R.&T.P. Act for that
notified area. Thus, Corporation ceased to be Planning Authority as far
as the notified area is concerned. On 18.05.1983, Corporation published
notice under Section 25 of the M.R.&T.P. Act inviting objections /
suggestions in respect of the revised draft Development Plan for 'A' to
'G' Wards. On 30.03.1985, the draft Development Plan was submitted
by the Corporation under ig Section 30(1) after carrying out
modifications / changes on the basis of objections / suggestions
received. On 30.04.1985, Corporation submitted the revised Building
Bye-laws and Development Control Rules to the Government of
Maharashtra under Section 30(1) of the M.R.&T.P. Act. On 14.12.1989,
the Government of Maharashtra issued Notification under Section 31(1)
of the M.R.&T.P. Act and published the revised draft Building Bye-laws
and Development Control Rules for Grater Mumbai and invited
objections and suggestions in respect thereof. On 20.06.1990,
Government of Maharashtra issued Notification extending the period for
sanctioning the said draft Building Bye-laws and Development Control
Rules. On 29.06.1990, Deputy Director of Town Planning submitted a
report to the Government of Maharashtra. On 20.07.1990, draft
Development Plan submitted by the Corporation was sanctioned by the
Government of Maharashtra in respect of 'A' Ward. It is material to note
that at that time, the Building Bye-laws / Regulations were not
sanctioned along with the Plan. On 20.02.1991, Development Control
Regulations of 1991 were finally sanctioned and it came into force with
effect from 25.03.1991.
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205. As against this, on 01.03.1985, MMRDA, as the Planning
Authority, declared its intention to prepare a development plan for
Blocks III - VI of BBRS. On 04.05.1990, MMRDA notified the Draft
Development Plan for BBRS Blocks III to VI and invited suggestions
and objections under Section 26. After following the procedure
prescribed by Section 28, MMRDA submitted Draft Development Plan
on 08.10.1991 to the Government of Maharashtra. It was ultimately
sanctioned and the Development Plan came into force with effect from
24.07.2000.
206. Thus, the position which emerges from the above discussion is
that as on 19.02.1991, Draft Development Control Regulations of 1989
prepared by the Corporation submitted to the State Government were
pending consideration of the State Government for its sanction. As far
as the MMRDA is concerned, it had submitted Draft Development Plan
on 08.10.1991, that is to say, after 19.02.1991. It is in this context,
material to consider the decision of the Apex Court in the case of
Suresh Estate1. In paragraph 17, the Apex Court noted clarification
dated 08.09.1998 issued by MOEF stating that Development Control
Regulations as existing on 19.02.1991 would apply for all
developmental activities in CRZ including CRZ-II. MOEF also issued
clarification on 18.08.2006 reiterating that the existing Development
Control Regulations applicable to CRZ-II areas in Mumbai would mean
the Development Control Rules, 1967. It was also noted that the
Development Control Regulations for Greater Bombay 1991 were
notified on 20.02.1991 and came into force with effect from 25.03.1991.
207. In paragraph 19, it was observed that the word 'existing' as
employed in the CRZ Notification means the town and country planning
regulations in force as on 19.02.1991. In paragraph 20, it was noted that
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on 20.02.1991, when the CRZ Notification was issued, the only building
regulations that were existing in the City of Mumbai were the
Development Control Rules, 1967. The Apex Court held that in view of
the contents of CRZ-II Notification issued under the provisions of the
E.P.Act which has the effect of prevailing over the provisions of other
Acts, the application submitted by the appellants to develop the plot
belonging to them would be governed by the provisions of the
Development Control Rules, 1967 and not by the draft development
regulations of 1989 which was notified on 20.02.1991 and which came
into force on 25.03.2991. In paragraph 26, the Apex Court categorically
held that the draft regulations of 1989 were not in force as on
19.02.1991.
208. Mr. Seervai, however, gave emphasis to the observations in
paragraph 24 to the effect that "the draft published is to be taken into
consideration so that the development plan is advanced and not
thwarted. The draft development plan was capable of being sanctioned,
but when the final development plan is not applicable, its draft would
equally not apply as there is no question of that plan being thwarted at
all. He submitted that the Apex Court was dealing with the property
situate in 'C' Ward in respect of which final development plan was not
sanctioned. In the present case, in respect of 'A' Ward where the subject
plot is situate, final development plan was sanctioned on 20.07.1990 and
which came into force with effect from 01.09.1990. He submitted that
the Apex Court was not dealing with the property situate in 'A' Ward
and consequently, had no occasion to consider the effect of sanctioning
of draft Development Plan in respect of 'A' Ward on 20.07.1990 which
came into effect from 01.09.1990.
209. Mr. Seervai further submitted that the Development Control
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Regulations are the integral part of the Development Plan. He relied
upon Sections 22(a), (m) and 46 of the M.R.&T.P. Act. He also relied
upon the following decisions:
a. Nariman Point Association2, and in particular paragraph 11;
b. D. B. Reality Limited3, and in particular paragraphs 22 to 25;
c. M. A. Panshikar4, and in particular paragraph 14.
210. There is no dispute with the proposition laid down by the
aforesaid decisions namely that the Development Control Regulations
are integral part of the Development Plan. The question is whether they
existed as on 19.02.1991. As noted earlier, on 15.06.1983, MMRDA
was designated as a Special Planning Authority in respect of BBRS
Blocks III to VI and consequently, became the Planning Authority as per
Section 2(19) of the M.R.&T.P. Act. In the case of Vyankatesh Y.
Shinde41, the Division Bench of this Court held that there cannot be two
planning authorities for the same area. Thus, on and after 15.06.1983, as
far as BBRS Blocks III to VI is concerned, Corporation ceased to be the
Planning Authority. That apart, as on 19.02.1991, Draft Development
Control Regulations, submitted on 30.04.1985 by the Corporation to the
State Government, were not sanctioned. They were sanctioned on
20.02.1991 that is to say after 19.02.1991 and came into effect from
25.03.1991. Thus, though as far as 'A' Ward is concerned, the plans
submitted by the Corporation were sanctioned by the State Government
on 20.07.1990 and came into force with effect from 01.09.1990,
nonetheless, the regulations submitted on 30.03.1985 were at the stage
of draft and they were not sanctioned prior to 19.02.1991 and thus, were
not existing as on 19.02.1991. The Regulations submitted on
30.03.1985 by the Corporation were draft Regulations and in view of the
categorical finding of the Apex Court in paragraph 26 that the draft
regulations of 1989 were not in force as on 19.02.1991, the only sequitur
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is that the Development Control Regulations of 1967 are applicable to
the facts of the present case and not Draft 1989 Development Control
Regulations as contended by the petitioners in the alternative.
211. Apart from this, as noted earlier, the then BMRDA had issued
Notification on 10.06.1977 restricting the permissible FSI in the
municipal limits of Corporation to 1.33. The said Notification was to
have effect for a period of two years from the date of its issue. On
05.10.1989, BMRDA issued Notification restricting permissible FSI in
the municipal limits of Corporation to 1.33. The said Notification was
to have effect and be in force until 10.10.1991. In other words, the said
Notification was in force as on 19.02.1991 when Central Government
issued 1991 Notification. The said Notifications were issued under
Section 13(1) of MMRDA Act read with Section 21 of the Bombay
General Clauses Act, 1904. Clause B of Notification dated 05.10.1989
reads thus,
(B) In the are of the 'Municipal Corporation of Greater Bombay'
as defined in the Bombay Municipal Corporation Act, 1888 (III of
1888), excluding the area of the Bandra-Kurla complex as
specified by Government Notification, Urban Development and
Public Health Department, No.BKR-1177/262-UD-5, dated the
7th March 1977 as modified by Government Notification, Urban
Development and Public Health Department No.BKR-1177/262-
UD-5, dated the 16th May 1979, and the area of District Centre,
Oshiware as specified by Government Notification, Urban
Development and Public Health Department, No.TPB-
4382/26/UD-5, dated the 18th June 1982--
construction or reconstruction of any building, including
addition to any existing building, so as to have a floor space index, as
defined in Rule No.51 of the Development Control Rules for Greater
Bombay, exceeding 1.33 or that provided in the said Development
Control Rules, whichever is lower, but excluding construction or
reconstruction of any building or addition to any existing building-
It is also relevant to note that Dr. A. Senthil Vel addressed a letter
dated 18.08.2006 to the Principal Secretary, UDD clarifying that all
development activities proposed to be taken up in the CRZ area have to
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follow the norms as existed on 1991 including FSI / FAR norms. It was
further explained that the word "existing" has been interpreted by the
Ministry by its letter dated 08.09.1998 as prevailed on 19.02.1991. The
letter further stated that "in view of the above clarifications, the DCR
which was under implementation on 19.02.1991 i.e. the approved DCR
of 1967 shall be considered and not the draft of 1989 which came into
force on 20.02.1991 as it was still in the draft stage on 19.02.1991".
MMRDA being the Planning Authority in respect of BBRS, FSI / FAR
is 1.33 as per the Notification dated 05.10.1989, which was in force as
on 19.02.1991. Question No.8 is answered accordingly.
ig Re: Question No.(9)
(9) What is the permissible FSI and how much FSI is consumed by
the petitioners' building?
212. Mr. Seervai submitted that the building constructed by the
petitioners has not exceeded permissible FSI. He submitted that if it is
held that 1967 DCR is applicable, as a matter of right and not as a matter
of discretion, FSI permissible in BBRS Blocks III to VI, the petitioners
are entitled to consume 3.5 FSI. Thus, even if the calculation made by
the respondents that petitioners have consumed 2.932 FSI is accepted,
still, petitioners have not exceeded FSI of 3.5. The permissible FSI was
1.33 subject to exemptions. MMRDA rightly applied draft DCR of
1989. In the affidavit dated 13.01.2011 made by Mr. Pradeep Murlidhar
Yadav, Senior Planner in the Town and Country Planning Division of
MMRDA, in Writ Petition No.2407 of 2010, it is specifically averred
that permissible FSI on the subject plot as per the DCR of 1967 is 3.5
and as per the draft DCR of 1989, permissible FSI is 1.33. MMRDA
has restricted FSI to 1.33 using the stringent of the two Development
Control Regulations. If 1989 Draft DCR is made applicable, the
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permissible FSI is 1.33 excluding lift room lobby, staircase, etc. If 1991
DCR is made applicable, permissible FSI is 1.33 excluding lift room
lobby, staircase, etc. In other words, he submitted that there are no FSI
violations.
213. Mr. Seervai further submitted that the Memorandum dated
05.08.2005 as also Notification dated 03.03.2006 are not challenged by
any of the respondents. The show cause note as also the impugned
orders do not deal with validity or otherwise of the Memorandum dated
05.08.2005 and Notification dated 03.03.2006. It is, therefore, no open
to the respondents to contend that Notification dated 03.03.2006 is
illegal and that, petitioners are not entitled to consume additional FSI of
BEST plot as there is non-compliance of conditions stipulated in Office
Memorandum dated 05.08.2005 and Notification dated 03.03.2006.
214. He further submitted that Notifications dated 10.06.1977 and
05.10.1989 issued by MMRDA are wholly irrelevant and they were not
in force when the building plans were approved. He submitted that
these Notifications were issued by MMRDA under Section 13(1) of
BMRD Act. Section 13 has nothing to do with limiting FSI. Section 13
talks of "undertaking any development within the Metropolitan region
of the type". "Development of the type" has to be notified by MMRDA.
Section 13 does not apply to area where MMRDA itself is the Planning
Authority. In any case, MMRDA in its affidavit made in Writ Petition
No.2407 of 2010 has gone on record in asserting that building of the
petitioners has consumed permissible FSI and is authorized.
215. Mr. Seervai submitted that MMRDA, Corporation, State
Government do not say that utilization of FSI of BEST plot is illegal. He
further submitted that in the impugned minutes of meetings of NCZMA
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and MCZMA as also report and the impugned orders, finding is given
that petitioners did not amalgamate subject plot with the BEST plot. It
is for the MOEF who asserts this aspect to prove the same. MOEF has
not proved it by relying upon some Statute, Notification, Regulation,
Rule, Bye-laws, and provisions of Maharashtra Land Revenue Code.
Mr. Seervai submitted that Government had allotted BEST plot on
occupancy basis to the petitioners by issuing memorandum dated
05.08.2005. In short, he submitted that the Notification dated
03.03.2006 is legal.
216. On the other hand, respondents submitted that petitioners have
exceeded permissible FSI, and in particular MCZMA has given detailed
calculations in respect thereof. Mr. Khambata has given us the details of
FSI and built-up area calculations for Adarsh Society as per 1991 DCR
based on the sanctioned plan dated 16.09.2010 at page 80 of the Writ
Petition which is as under:
FSI and Built up area calculation for Adarsh CHS Ltd. as per DC
Regulations 1991 (based on sanctioned plan dated 16.09.2010 at page 80
of Petition)
Sr. Adarsh Plot BEST Plot Total
No.
1 Area of plot 3824.43 2669.68 6494.11
2 Deduction for Road Set Back 628.57 367.91 996.48
area
Net Plot Area (1-2) 3195.86 2301.77 5497.63
3 Net Plot area for FSI 3195.86 2125 5329.86
calculation
4 Deduction for 15% RG 479.38 479.38
(on Sr.No.3)
5 Net Plot Area (3-4) 2716.48 2125 4841.48
6 Additions for FSI purpose 628.57 367.91 996.48
(100% of Set Back Area)
(On Sr.No.2)
7 Plot Area (5+6) 3345.06 2492.91 5837.96
8 FSI 1.33 1.33 1.33
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9 Total available FSI (7x8) 4448.92 3315.57 7764.49
10 Permissible Built up area 4448.92 3315.57 7764.49
11 Additional FSI in lieu of 15% 637.57 637.57
RG (4x8)
12 Total permissible Built up 8402
Area (10+11)
13 Proposed Built up area 8401
NOTE:
(1) Total area of staircase, lift, lift lobby, which is not counted in FSI as
per DC Regulation 35(2)(iv) of the DC Regulations 1991 = 2814.92 sq.m.
(Minutes of MCZMA meeting of 3-11-2010 page 707 at page 711)
Under Rule 51(vi) of the 1967 DC Rules only staircase room and lift
room above topmost storey, were excluded from FSI and hence the area of
staircase, lift and lift lobby would have to be counted towards FSI if the 1967
DC Rules are applicable.]
FSI COMPUTED USING DIFFERENT METHODOLOGIES:
A. FSI calculated as in the sanctioned plan (excluding area of staircase /
lift / lift lobby and with FSI from BEST plot)
Proposed built up area (Staircase, lift, lift lobby area excluded)/Plot Area
= 8401 / 6317.34 (5837.96 + 479.38)
= 1.329
B. FSI calculations (including area of staircase, lift, lift lobby as per Rule
51(vi) of the 1967 DC Rules, but with FSI from BEST plot)
Proposed built up area / Plot area
= (8401 + 2814.92) / 6317.34
= 11,215.92 / 6317.34
= 1.775
C. FSI calculation (excluding area of staircase, lift, lift lobby as per
Regulation 35(2)(iv) of the DC Regulations 1991 but without FSI from BEST
plot)
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= 8401 / 3824.44 (3345.06 + 479.38)
= 2.196
D. FSI calculation (including area of staircase, lift, lift lobby as per Rule
51(vi) of the 1967 DC Rules and without FSI from BEST plot)
Proposed built up area (including staircase/lift/lift lobby) / Plot area
= 8401 + 2814.92 = 11,215.92 / 3824.44 (3345.06 + 479.38)
= 2.932
[NOTE: The above calculations are on the basis that the additional FSI in
lieu of the 15% RG area is available as per DC Regulation 35(1) of DC
Regulations, 1991, even though it may not be available under the 1967 DC
Rules (see MMRDA letter dated 24-2-2009 page 453 at page 464]
217. Mr. Khambata submitted that the petitioners have utilized FSI of
BEST plot on the basis of the memorandum dated 05.08.2005. Clause 2
thereof laid down that as investment of project exceeds Rs.5 crores,
permission of MOEF for utilizing FSI of BEST plot is necessary. He
further submitted that by Notification dated 03.03.2006 issued under
Section 50 of the M.R.&T.P. Act, Government sanctioned deletion of
land admeasuring 2669.68 sq.mtrs., which was reserved for BEST plot
and included the same in the residential zone without obtaining sanction
of MCZMA or MOEF. He also relied upon the decision of in Sneh
Mandal CHSL42. Mr. Khambata submitted that Development Control
Rules of 1967 are applicable. Rule 51 thereof provides that FSI to be
consumed is 1.33 or that provided in the DCR, whichever is lower, was
permissible. In other words, FSI of 1.33 or that provided in the 1967
DCR, whichever is lower is permissible. In any case, it cannot exceed
1.33 FSI. He invited our attention to Rule 51 (vi) and (d) of
Development Control Rules of 1967 as also DCR 35(2), Clause (c) and
(iv) of DCR 1991.
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218. Mr. Khambata further submitted that as the subject plot and
BEST plot are two separate plots, FSI of one plot namely BEST plot
cannot be utilized on the another plot namely, the subject plot. As there
was no amalgamation of two plots, FSI of BEST plot cannot be utilized.
The BEST plot and the subject plot are two separate plots with two
separate Cadestral Survey Numbers and this fact is borne out from the
Property cards.
219. Mr. Khambata submitted that the net plot area is 3345.06 sq.mtrs.
and permissible FSI is 1.33. The total built up area comes to 4448.92
sq.mtrs. and total FSI available is 1.33. As against this, petitioners built
up area is 8401 sq.mtrs. and thus the FSI consumed is 2.932.
220. Mr. Toor appearing for BEST submitted that basically BEST,
being the appropriate authority, has not made application for deletion. In
any case, if the land is released from such reservation, it becomes
available to the owner for the purpose of development. It is the
petitioners' case that the State Government is the owner then the land
will become available to the State Government for development. From
the correspondence on record, it is evident that the State Government
has permitted petitioners to utilize the additional FSI and not allotted the
BEST plot.
221. Mr. Shah submitted that it is for the petitioners to satisfy this
Court that the building constructed by it is perfectly in accordance with
law and also it does not exceed FSI. He relied upon Section 2(13-A)
and 2(21) of M.R.&T.P. Act, which defined the expressions 'FSI' and
'plot' respectively. He submitted that FSI of a particular plot has to be
used in that plot only. In other words, FSI of BEST plot has to be
utilized in BEST plot otherwise it will amount to TDR. Admittedly,
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subject plot is situate in 'A' Ward where loading of TDR is prohibited.
Mr. Shah submitted that respondents cannot be precluded from agitating
this point as they have to squarely meet the challenge raised by the
petitioners and meet the arguments advanced by the petitioners.
222. We have already held that the 1967 DCRs are applicable. It is
also not disputed that MMRDA was appointed as a Special Planning
Authority by Notification dated 15.06.1983. On 10.06.1977, the then
BMRDA, in exercise of powers under Section 13(1) of the BMRD Act,
issued Notification. The said Notification was to have effect for the
period of two years. On 05.10.1989, BMRDA again issued Notification.
It is provided therein that no authority or person shall undertake, within
the area specified within the jurisdiction of the MMRDA except with the
previous permission of the Metropolitan Authority, the construction or
reconstruction of any building excluding addition to any existing
building so as to have the FSI as defined in Rule 51 of the DCR for
Greater Bombay, 1967 exceeding 1.33 or that provided in the said DCR,
whichever is lower. The said Notification was in force until 10.10.1991,
that is to say, when 1991 Notification was issued on 19.02.1991. Thus,
the permissible FSI would be 1.33 as per 05.10.1989 Notification.
223. Now, the next question is whether the petitioners are entitled to
utilize FSI of BEST plot. Petitioners contend that by memorandum
dated 05.08.2005, Government has allotted BEST plot on occupancy
basis to the petitioners and consequently, petitioners are entitled to
utilize FSI of BEST plot. With the assistance of the learned Counsel
appearing for the parties, we have gone through the entire
correspondence leading to issuing memorandum dated 05.08.2005.
After considering the correspondence in its entirety as also the interim
reply dated 24.11.2010 and in particular paragraph 3(ix) as also detailed
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reply dated 15.12.2010, and in particular paragraph 21 thereof, as also
memorandum dated 05.08.2005 and Notification dated 03.03.2006, we
are more than satisfied that petitioners were allowed to utilize the FSI of
BEST plot. Petitioners were not allotted BEST plot. It is however,
material to note that the petitioners changed their stand and improved it
in their written submissions submitted on 10.06.2011 and in particular
paragraph 3(ii) and came out with the case that on 05.08.2005,
Government of Maharashtra allotted land admeasuring about 2669.68
sq.mtrs. to Adarsh Society on occupancy basis. Mr. Seervai submitted
that in fact in the report of Dr. Nalini Bhat, there is a finding to the effect
that the BEST plot is allotted to the petitioners. We do not find any
merit in this submission at all as basically, the correspondence and the
memorandum dated 05.08.2005 and notification dated 03.03.2006 leave
no room for doubt that what was permitted to the petitioners was
utilization of FSI of BEST plot.
224. The next question is whether the petitioners can utilize FSI of
BEST plot on the subject plot. The answer to this question is
emphatically in the negative. As noted earlier, the property card of the
subject plot shows that the cadastral survey number of the subject plot is
652. In column No.10, name of person in beneficial ownership, after the
name of Government of Maharashtra, Adarsh Society's name is
recorded. As far as the BEST plot is concerned, its cadastral survey
number is 657. In column No.10, name of person in beneficial
ownership, name of Government of Maharashtra alone is recorded. It is
material to note that the Survey Map and register is prepared under
Section 282(1) and (2) of the MLRC, which requires that "every piece
of land" has to be separately shown on the map and entered in the
register with a distinct indicative number being assigned to it. Section
2(37) provides for a separate survey number for each portion of land. If
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plots are carved out or sub-divided out of a larger plot then under
Section 2(35) of the MLRC, a survey number is given to them which is
indicative that it is subordinate to that of the survey number of which it
is a portion, for example, Survey No.37/Part or Hissa No.2. In the
present case, the subject plot and BEST plot are given separate cadastral
survey numbers.
225. Thus, the BEST plot and the subject plot are two separate plots
having different cadastral survey numbers. The subject plot and the
BEST plot are adjacent and are in 'A' Ward. As noted earlier, in 'A'
Ward loading of TDR is not permissible. As the subject plot and BEST
plot are two distinct / separate plots, FSI of one plot namely BEST plot
cannot be utilized on the another plot namely, the subject plot. It is not
the case of the petitioners that the two plots were amalgamated. As
there is no amalgamation of two plots FSI of BEST plot cannot be
utilized. Section 2(13-A) defines the expression 'Floor Space Index' to
mean the quotient or the ratio of the combined gross floor area to the
total area of the plot,
Total covered area of all floors
FSI = ___________________________________________
Plot area
226. Section 2(18) defines the expression 'owner to include any person
for the time being receiving or entitled to receive, whether on his own
account or as agent, trustee, guardian, manager or receiver for another
person or for any religious or charitable purpose, the rents or profits of
the property in connection with which it is used. Section 2(21) defines
the expression 'plot' to mean portion of land held in one ownership and
numbered and shown as one plot in a town planning scheme. We are,
therefore, of the opinion that as the BEST plot and the subject plot are
two separate plots, petitioners cannot utilize FSI of BEST plot on the
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subject plot.
227. That apart, clause 2 of memorandum dated 05.08.2005 laid down
that as the investment of the project exceeds Rs.5 crores, permission of
MOEF for utilizing FSI of BEST plot is necessary. Clause 4 thereof
requires compliance of all the conditions laid down therein before
utilizing FSI of BEST plot. It is evident that petitioners did not obtain
permission of MOEF before utilizing FSI of BEST plot.
228. We have also perused Notification dated 03.03.2006 issued under
Section 50 of the M.R.&T.P. Act. Section 2(3) defines the expression
'appropriate authority' to mean any public authority on whose behalf
land is designated for public purpose in any plan or scheme and which it
is authorized to acquire. In the present case, it is not disputed that the
land is designated for the BEST bus depot and consequently, BEST is
the appropriate authority. Section 50(1) lays down that the appropriate
authority (other than the planning authority), if it is satisfied that the
land is not or no longer required for the public purpose for which it is
designated or reserved or allocated in the interim or the draft
development plan or plan for the area of comprehensive development, or
the final development, may request (a) Planning Authority to sanction
deletion of such designation or reservation or allocation from the interim
or the draft development plan or plan of the area of comprehensive
development, or (b) the State Government to sanction deletion of such
designation or reservation or allocation from the final development plan.
Proviso to sub-section (2) thereof lays down that the planning authority
or as the case may be, the State Government, may, before making any
order, makes such inquiry as it may consider necessary and satisfy itself
that such reservation or designation or allocation is no longer necessary
in the public interest. Sub-section (3) thereof lays down that upon an
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order under sub-section (2) being made, the land shall be deemed to be
released from such designation, reservation or as the case may be,
allocation and shall become available to the owner for the purpose of
development as otherwise permissible in the case of adjacent land under
the relevant plan.
229. In the present case, perusal of the record shows that at no point of
time, appropriate authority, namely BEST had requested the State
Government to release the land from reservation. In fact, the said
request has to be made only after the appropriate authority is satisfied
that the land is no longer required for the public purpose for which it is
designated. In the present case, from the material on record, no such
satisfaction is arrived at by the appropriate authority namely BEST.
That apart, the appropriate authority namely BEST has not made request
as contemplated by Section 50(1). In view thereof, in our opinion, State
Government was not justified in invoking Section 50. In any case, even
if the land is released from reservation, as per Section 50(3), the land
becomes available to the owner for the purpose of development as
otherwise permissible in the case of adjacent land under the relevant
plan. Petitioners also do not dispute that the BEST plot is owned by the
State Government. If at all, the State Government is justified in
invoking Section 50, nonetheless the land will become available to the
petitioners for development and the same will become available to the
State Government being the owner of the said land.
230. In the case of Manohar Joshi69, the Apex Court observed that
Section 50 can be invoked at the instance of appropriate authority only
when it does not want the land for designated purpose. Reliance was
also placed on Subhash Khaire70, and in particular paragraph 17 thereof
to contend that the Notification dated 03.03.2006 is illegal, null and void
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ab initio and it cannot be an order / notification issued in exercise of
powers under Section 50 of the M.R.&T.P. Act. Reliance was also
placed on Deepak Kumar Mukherjee71, and in particular paragraphs 8,
9 and 29 to submit that if the notification under Section 50 is void ab
initio, the consequence is to order demolition of a portion of a building
which utilizes FSI of BEST plot. We find merit in these submissions as
in the facts and circumstances of the present case, State Government
could not have invoked Section 50 for the following reasons:
(1) Application was not made by the appropriate authority, as
contemplated by Section 50(1);
(2) Appropriate Authority did not record satisfaction that it no
longer requires the land. On the contrary, from the material on
record, it is evident that BEST requires BEST plot for ingress
and egress of their buses from their bus depot;
(3) Government has also not recorded its satisfaction as
contemplated by proviso to sub-section (2) of Section 50;
(4) In any case, after release of BEST plot from such reservation,
the land will become available to the State Government being
owner for the purpose of development and not to the
petitioners.
(5) FSI of BEST plot could not have been allowed to be utilized
on the subject plot as both the plots fall in 'A' Ward where
loading of TDR is impermissible;
(6) Petitioners did not obtain permission of MOEF before
utilizing FSI of BEST plot as per condition 2 of Memorandum
dated 05.08.2005;
(7) Even under Regulation 34 of the DCR, 1991, TDR is not
available for use in the Island City of Mumbai. Only heritage
TDR can be used in the Island City of Mumbai.
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231. For all these reasons, petitioners cannot utilize FSI of BEST plot.
We have already held that 1967 DCR are applicable and while
calculating FSI, area covered by staircase, lift, lift lobby as per Rule
51(vi) of the 1967 DCR without considering FSI from BEST plot is to
be considered. If the area covered by staircase, lift / lift lobby is divided
by the plot area of subject plot then the calculation is thus:
Proposed built up area (including staircase/lift/lift lobby) / Plot area
= 8401 +2814.92 = 11,215.92 / 3824.44 (3345.06 = 479.38)
= 2.932
232. Thus, petitioners have consumed FSI of 2.932 as against
permissible FSI of 1.33. Question No.9 is answered accordingly.
Re: Questions No.(10) & (11)
(10) Whether the various facets of the principles of natural justice
namely;
a. non-supply of report of respondent No.4 Dr. Nalini Bhat;
b. not permitting the petitioners to cross-examine Mr. T. C.
Benjamin and Mr. Sitaram Kunte;
c. hearing by respondent No.4 Dr. Nalini Bhat and passing of order
dated 14.01.2011 by respondent No.3 Dr. Bharat Bhushan;
d. (i) by participating in the NCZMA meeting dated 11.11.2010,
respondent No.3 Dr. Bharat Bhushan, respondent No.4 Dr.
Nalini Bhat, Dr. A. Senthil Vel and Mr. E. Thirunavukarasu have
disqualified themselves in dealing with the petitioners' case;
(ii) the above officers were having bias against the petitioners;
(iii) the respondent No.3 had made up his mind while issuing
show cause notice dated 12.11.2010;
(iv) the officers have abdicated their powers, functions and
duties and acted on dictates of others;
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(v) the impugned order / action travel beyond the show
cause notice;
e. preparation of draft demolition order purportedly by Dr. A.
Senthil Vel;
f. not hearing by respondent No.2 Mr. Jayram Ramesh before
accepting one of the three options;
are, in the facts and circumstances of the present case, grossly violated?
(11) Whether this is a fit case for invocation of extra-ordinary
jurisdiction under Article 226 of the Constitution of India?
233. Mr. Seervai strenuously contended that various facets of
principles of natural justice have been grossly violated in the present
case. On 03.11.2010, 66th meeting of MCZMA was held. Perusal of the
minutes of that meeting shows that draft demolition order was already
prepared. On 11.11.2010, Dr. Valsa Nair - Chairperson, MCZMA,
respondent No.3 - Dr. Bharat Bhushan, respondent No.4 - Dr. Nalini
Bhat, Dr. A. Senthil Vel and Mr. E. Thirunavukarasu participated in the
meeting of NCZMA. In the minutes of that meeting, it was recorded
that the structure put up by the petitioners is unauthorized and without
clearance of the appropriate authority, though there was no material. He
relied upon the decision of the Apex Court in the case of Kishan Chand
Chelaram15 to contend that without there being any material, NCZMA
in its meeting dated 11.11.2010 recorded that the structure put up by the
petitioners is unauthorized and without clearance of the appropriate
authority. On 12.11.2010, respondent No.3 Dr. Bharat Bhushan issued
notice to show cause within 15 days as to 'why the unauthorized
structure erected by the Adarsh Society should not be removed forthwith
in its entirety'. Dr. Bharat Bhushan having participated in the NCZMA
meeting dated 11.11.2010 disqualified himself and he ought not to have
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issued show cause notice. He having participated in that meeting,
confirmed his own decision. He acted as a Judge in his own cause. The
wording of the show cause notice also shows that it is a case of foregone
conclusion.
234. Mr. Seervai submitted that even at the stage of the show cause
notice, the respondents have completely made up their mind and reached
the definite conclusion about alleged unauthorized structure put up by
the petitioners. This has rendered the subsequent proceedings an empty
ritual and an idle formality. He submitted that it is well settled that a
quasi-judicial authority, while acting in exercise of its statutory power,
must act fairly and must act with open mind while initiating the show
cause proceeding. A show cause proceeding is meant to give a person
proceeded against, a reasonable opportunity of making his objection
against the proposed charges indicated in the notice. It is obvious that at
that stage, the authority issuing show cause notice cannot instead of
telling person the charges, confront him with definite conclusions of his
alleged guilt. In the present case, the show cause notice records definite
conclusions reached by respondent No.3 about alleged unauthorized
construction made by the petitioners, and therefore, the entire
proceeding initiated by the show cause notice is vitiated by unfairness
and bias and the subsequent proceedings became an idle ceremony. He
relied upon following decisions:
(a) Oryx Fisheries (P) Ltd.5 and
(b) Kumaon Mandal Vikas Nigam Limited6 to contend that show
cause notice dated 12.11.2010 shows that respondents have completely
made up their mind and reached the definite conclusion about alleged
unauthorized structure put up by the petitioners. It also reflected bias of
the respondent No.3. The quasi-judicial authority, while acting in
exercise of its statutory power, must act fairly and must act with an open
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mind while initiating a show cause notice proceeding.
235. Mr. Seervai submitted that respondent No.4 Dr. Nalini Bhat was
authorized to hear the petitioners. She heard the petitioners on
04.01.2011. On 10.01.2011, petitioners filed written submissions. On
13.01.2011, respondent No.4 Dr. Nalini Bhat submitted report
recommending that Adarsh building be removed in its entirety. He
submitted that as the conclusion that the petitioners' building is
unauthorized was already arrived at, within a short span of hardly two
days, she submitted the report. The facts in the matter under
consideration are singularly singular. The entire chain of events smacks
of personal clash and adoption of a method unknown to law in hottest of
haste.
236. Mr. Seervai submitted that apart from respondent No.4 - Dr.
Nalini Bhat, respondent No.3 - Dr. Bharat Bhushan, Mr. E.
Thirunavukarasu and Dr. A. Senthil Vel assisted her during the course of
hearing. During the course of hearing, petitioners were never informed
that these 3 officers were there merely to assist respondent No.4 - Dr.
Nalini Bhat and that they were not part of the panel to give hearing to
the petitioners. Though respondent No.4 heard the petitioners,
respondent No.3 Dr. Bharat Bhushan passed order on 14.01.2011. The
principle that 'he who hears, must decide' is flagrantly violated. As
respondent No.4 Dr. Nalini Bhat heard the petitioners, she alone could
have passed the order. On this ground alone, the order dated 14.01.2011
passed by respondent No.3 Dr. Bharat Bhushan is liable to be quashed
and set aside. Apart from that, as these officers participated in the
meeting of NCZMA held on 11.11.2010, they have rendered themselves
disqualified from participating further in the proceedings. The order
also suffers from bias of respondent No.3.
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237. Mr. Seervai submitted that in the affidavit of respondent No.3 Dr.
Bharat Bhushan, he denied that he was not part of the panel. If he is part
of the panel to hear the petitioners, it is contrary to notification dated
30.09.2009 which authorized respondent No.4 Dr. Nalini Bhat alone to
hear the petitioners. The proceedings in pursuance of show cause notice
were of quasi-judicial nature. If respondent No.3 Dr. Bharat Bhushan
claims to have heard the petitioners, he had no authority to hear the
petitioners in view of the notification dated 30.09.2009. Even on this
ground, the order dated 14.01.2011 is liable to be set aside. He relied
upon the following decisions:
(a) Gullapalli Nageswararao12,
(b) Rasid Javed73 and in particular paragraph 51,
(c) Shiv Raj74 and in particular paragraphs 17 to 20 as also
(d) Automotive Tyre Mfgrs. Assocn.11, and in particular
paragraphs 80, 83 and 84 to contend that the principles of natural
justice "one who hears the case, must decide" is violated. The
divided responsibility is destructive of the concept of the judicial
hearing.
238. Mr. Seervai submitted that proceeding clearly smacks of bias and
it is evidently writ large. Dr. Bharat Bhushan could not have issued
show cause notice. He could not have proposed draft order and
consequently, could not have passed final order on 14.01.2011. He
submitted that respondent No.3 Dr. Bharat Bhushan, respondent No.4
Dr. Nalini Bhat, Dr. A. Senthil Vel, Mr. E. Thirunavukarasu, Ms Valsa
Nair Singh, all these officers acted at the behest of the respondent No.2.
The impugned show cause notice / report / orders are at the behest of the
respondent No.2. When the quasi-judicial authority acts at the behest of
some other authority, its order is vitiated. Respondent No.3 Dr. Bharat
Bhushan and respondent No.4 Dr. Nalini Bhat abdicated their functions
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and powers and acted on the dictates of respondent No.2. They fettered
their discretion at the behest of the respondent No.2. Respondent No.2
passed order on 16.01.2011. The said order records that there were three
options available. These three options were not recorded / noted in the
show cause notice / report / minutes of either MCZMA or NCZMA.
Respondent No.2 came to the conclusion that only one option, namely,
removal of the entire building was available. The report dated
13.01.2011 submitted by respondent No.4 Dr. Nalini Bhat
recommending removal of the entire building was not given to the
petitioners. Petitioners were not heard by the respondent No.2 before
holding that only that option is available. He submitted that this is not a
case of institutional decision. In fact, the entire exercise undertaken by
the respondents is subversive of quasi-judicial function. The petitioners
were also not permitted to cross-examine Mr. T. C. Benjamin and Mr.
Sitaram Kunte. In short, he submitted that this is not a case of violation
of a facet of natural justice but squarely a case of not observing the
principles of natural justice at all.
239. In support of his submissions, he relied upon the following
decisions:
a. C.I.T.7 to contend that the show cause notice, report, impugned
orders were passed by the respondents No.3 and 4 at the behest of the
respondent No.2. Respondents No.3 and 4 abdicated their powers.
They also fettered their discretion.
b. Institute of Chartered Accountant8 and A. K. Kraipak9, and
Rattanlal Sharma10 to contend that respondents No.3 and 4 had
disqualified themselves by participating in the meeting of NCZMA
dated 11.11.2010. The report prepared by respondent No.4 and the order
dated 14.01.2011 passed by the respondent No.3 is vitiated on account
of bias.
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c. Meenglas Tea Estate13, and in particular paragraph 6, Bareilly
Electricity Supply14, A. K. Roy16 and Nusli Neville Wadia17 to contend
that the statements of Mr. Sitaram Kunte and Mr. T. C. Benjamin were
extensively quoted in the meeting of MCZMA behind the back of the
petitioners and they were not given opportunity to cross-examine these
witnesses.
d. Saroj Kumar Sinha18 and Dhakeswari Cotton Mills Limited19 to
contend that non-supply of report dated 13.01.2011 prepared by the
respondent No.4 has vitiated the impugned orders.
e. E. K. Andrews26 to contend that this is not a case of institutional
decision and the principle that one who hears must decide the case is
applicable in the facts of the present case.
f. Sanjay Jethi20, and in particular paragraphs 16, 33.5 to 36, 39, 41 to
43, 47 and 48 to contend that (i) petitioners were denied opportunity to
cross-examine Mr. Sitaram Kunte and Mr. T. C. Benjamin; (ii) report
prepared by Dr. Nalini Bhat was not supplied; (iii) the impugned actions
taken by the respondents suffer from bias.
g. Anirudhasinhji Karansinhji Jadeja21, and in particular paragraphs
11 to 15 and Tarlochand Dev Sharma22, and in particular paragraphs
12, 13, 15 and 16 to contend that respondents No.3 and 4 must take
decision independently and cannot act at the behest of the respondent
No.2. It amounts to abdication of power and duty as also fettering
discretion to that of other.
240. He relied upon Nawab Khan Abbas Khan Vs. State of Gujarat80
to contend that as the impugned orders are passed in gross violation of
80 (1974) 2 SCC 121
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principles of natural justice, they are void and not voidable.
241. Mr. Seervai relied upon the following decisions to contend that
the orders cannot travel beyond the show cause notice. The order must
stand or fall by the reasons recorded therein and the reasons cannot be
supplemented by way of affidavit or otherwise:
a. Deepak Babaria29, and in particular paragraphs 62 to 65,
69 and 70;
b. Rashmi Metaliks Limited30, and in particular paragraph
15;
c. All India Railway Recruitment Board31;
d. Dharampal Satyapal Limited25.
242. On the other hand, Mr. Khambata submitted that rules of natural
justice are not rigid and depend upon the facts and circumstances of
each case. Court has to consider whether the authorities in the present
case have acted fairly and with an open mind. The Court has also to
consider whether the petitioners were given fair and reasonable
opportunity to put up their case. Assuming for the sake of argument
without conceding that there was infirmity in the procedure, one has to
consider whether the petitioners suffered any prejudice in view of some
irregularity committed during the course of the proceedings. In support
of his submissions, he relied upon the following decisions:
a. S. L. Kapoor46, and in particular paragraphs 16 and 17 thereof to
contend that where on an admitted or undisputable facts only one
conclusion is possible and under the Law, only one penalty is
permissible, the Court cannot issue its writ to compel the observance of
natural justice, not because it approves the non-observance of natural
justice but because Courts do not issue futile writs. The petitioners were
given opportunity at every level and in fact they were supplied
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questionnaire and their response was sought.
b. Karunakaran47, and in particular paragraph 7(v) thereof to
contend that petitioners have not demonstrated that non-furnishing of
report dated 13.01.2011 submitted by the respondent No.4 Dr. Nalini
Bhat have prejudiced the petitioners gravely. Even after furnishing of
the report, no different consequences would have followed. He
submitted that even after getting the report, petitioners have not pleaded
what prejudice was caused to them by not supplying the report to them.
Had the report been given to them in advance, they would have
established obtaining clearance as also case of utilizing permissible FSI.
No such attempt is made by the petitioners in the present case.
c. State Bank of Patiala48, and in particular paragraphs 28 and 33
(5) thereof to contend that the principles of natural justice cannot be put
in a strait jacket. Their applicability depends upon the context and the
facts and circumstances of each case. The objective is to ensure a fair
hearing, fair deal to the person whose rights are going to be affected.
The Court has to apply the test of prejudice. There is distinction
between "no notice" / "no hearing" and "no adequate hearing" or to put
it in different words, "no opportunity" and "no adequate opportunity".
d. Haryana Financial Corporation49, and in particular paragraph
21 thereof, Bidyut Kumar Mitra50, and in particular paragraph 40
thereof, Alok Kumar51, and in particular paragraphs 85 to 90 thereof to
contend that it is for the petitioners to plead and prove that non-supply
of report dated 13.01.2011 submitted by Dr. Nalini Bhat had caused
prejudice and resulted in miscarriage of justice. The petitioners have
neither pleaded nor proved that non-supply of such report had caused
prejudice and it resulted in miscarriage of justice.
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e. All India Railway Recruitment Board31 to contend that the
principle laid down in Mohinder Singh Gill's case28 is not applicable
where larger public interest is involved and in such situation, the
additional grounds can be looked into to examine the validity of the
impugned actions in the present case.
243. Mr. Apte submitted that in the present case, though Section 5 of
the E.P.Act does not provide for personal hearing, petitioners were given
hearing by the panel consisting of four persons. In pursuance of that
hearing, respondent No.4 Dr. Nalini Bhat submitted a report dated
13.01.2011. Respondent No.3 Dr. Bharat Bhushan submitted draft order
for approval of the respondent No.2. Only after obtaining approval of
the respondent No.2, respondent No.3 passed final order on 14.01.2011.
Having regard to the office order dated 30.09.2009, the cases involving
policy implications or other sensitivities are required to be brought to
the notice of Hon'ble Minister of MOEF. In short, he submitted that the
decision taken in the present case is institutional decision and approved
by the respondent No.2. In support of these submissions, he relied upon
the following decisions:
a. Jyoti Prakash55, and in particular paragraph 25 thereof to
contend that when respondent No.2 is performing the quasi-judicial
function while taking decision in the present case, he is not constituted
by the Constitution, a Court.
b. Ossein & Gelatin Mfgrs. Assocn. of India 27, and in particular
paragraphs 5 and 6 to contend that no prejudice is caused to the
petitioners in the present case, assuming that any principle of natural
justice is violated.
c. Indore Textiles Mills Limited56, and in particular paragraphs 7 to
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12 thereof to contend that the principles of natural justice, namely, the
person who passed the order, did not hear the petitioners, is not violated
where the decision is institutional decision; that when a quasi-judicial
power is conferred on the Government or a Minister, by a Statute, it is
presumed that Parliament intends the power to be exercised in
accordance with the principles of natural justice according to the usual
practice of the department concerned. The normal practice of the
Government departments is that the Minister in charge of the
Department takes assistance from subordinate officials of his
department. There is no breach of natural justice if the investigation or
the hearing part is done by an official or a committee and the final
decision is taken by the Minister after going through the report of the
officer concerned and the evidence and material collected by him. Even
in acting upon such a report, the Minister may take assistance from
others in his department and the decision reached by him cannot be
tested being in violation of the principles of natural justice if he has
honestly applied his mind to the relevant material and the decision
reached by him is really his decision.
d. Raghava Menon57, and in particular paragraph 3 thereof wherein
reference was made to the decision of Pradyat Kumar Bose Vs. C. J. of
Calcutta, AIR 1956 SC 285. In that decision, the observations of Lord
Haldane in the Local Government Board Vs. Arlidge, 1915 AC120 at
page 133 were extracted. We extract that observation:
"The Minister at the head of the Board is directly responsible to
Parliament like other Ministers. He is responsible not only for what
he himself does but for all that is done in his department. The
volume of work entrusted to him is very great and he cannot do the
great bulk of it himself. He is expected to obtain his material
vicariously through his officials and he has discharged his duty if he
sees that they obtain these materials for him properly.
. . . .
Unlike a Judge in a court he is not only at liberty but is compelled
to rely on the assistance of his staff. When, therefore, the Board is
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directed to dispose of an appeal, that does not mean that any
particular official of the Board is to dispose of it."
e. Trimbakpati58, and in particular paragraphs 15 and 17 thereof,
Jawala Prasad59, and in particular paragraphs 7 to 9, S. Kapoor
Singh60, and in particular paragraphs 21 to 23, A. Sanjeevi Naidu61, and
in particular paragraphs 12 and Gullapalli Nageswarrao12, and in
particular paragraph 10 thereof. In paragraph 15, Full Bench of
Allahabad distinguished the decision in Gullapalli Nageswarrao12.
f. Dharampal Satyapal Limited25, and in particular paragraphs 38
to 40 to contend that the principles of natural justice are very flexible
principles and cannot be applied in any strait jacket formula. It also
depends upon that kind of functions performed and to the extent to
which the person is likely to be affected.
g. Kesava Mills Co. Ltd.62, and in particular paragraph 17 thereof to
contend that non-supply of report dated 13.01.2011 submitted by
respondent No.4 Dr. Nalini Bhat did not vitiate the proceedings. In the
absence of any statutory provision to the contrary, parliament intended
respondents to follow the procedure, which is its own and is necessary if
the administration is to be capable of doing its work efficiently. All that
was necessary for the respondents was to act in good faith and to listen
fairly to both sides.
244. As far as the plea of bias is concerned, he submitted that
petitioners have not pleaded that officers namely respondent No.3 Dr.
Bharat Bhushan, respondent No.4 Dr. Nalini Bhat, Dr. A. Senthil Vel,
Mr. E. Thirunavukarasu and respondent No.2 were biased in replies to
the show cause notices as also to the written submissions. Even no such
case is made out in the present Petition. There is no cogent evidence on
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record to come to the conclusion as to whether in fact there was existing
a bias or a malafide motive, which resulted int the miscarriage of justice.
In support of these submissions, he relied upon the following decisions:
a. V. K. Khanna63, and in particular paragraphs 5 and 6
where the decisions in the cases of - (i) S. Parthasarathi Vs. State
of Andra Pradesh, (1974) 3 SCC 459, (ii) Metropolitan
Properties Company (F.G.C.) Limited 67 and (iii) Kumaon
Mandal Vikas Nigam6 are referred.
b. Tata Cellular64, and in particular paragraphs 129, 131 to
138;
c. International Airports Authority of India65, and in
particular paragraphs 5 and 6;
d. Susme Builders Private Limited66, and in particular
paragraphs 29, 31 and 57;
e. Metropolitan Properties Company (F.G.C.) Limited67;
f. All India Institute of Medical Sciences 68, and in
particular paragraphs 23 and 29.
(11) Whether this is a fit case for invocation of extra-ordinary
jurisdiction under Article 226 of the Constitution of India?
245. Mr. Khambata submitted that assuming for the sake of argument
without conceding that there is some infraction of principles of natural
justice, even then this is not a fit case for invocation of powers under
Article 226 of the Constitution of India. He submitted that from the
material on record, it is clear that petitioners have not obtained
recommendations of MCZMA. They have not obtained clearance either
from MOEF or from State level agencies. The building so constructed
is totally unauthorized. It also consumes FSI of BEST plot in an illegal
manner. The petitioners have not complied stipulations in - (1) LOI
dated 18.01.2003, (2) allotment letter dated 09.07.2004 and (3) office
memorandum dated 05.08.2005. Notification dated 03.03.2006 issued
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under Section 50 of M.R.&T.P. Act is also vitiated on various grounds.
The petitioners have brazenly and high-handedly carried out
unauthorized construction. They have not even prayed for
regularization of the unauthorized construction. In fact, petitioners went
to the extent of contending that clearance under CRZ Notification is not
necessary and that they are not bound to point out which DCR is
applicable. The conduct of the petitioners dis-entitles them from any
discretionary relief and this is not a fit case for invocation of power
under Article 226 of the Constitution of India. In support of these
submissions, he relied upon the following decisions:
a. Morarji Cooverji52, and in particular page 331 to contend that it is
not sufficient that party who comes to this Court and make out a case
that the impugned actions / orders are invalid. In order to get that relief
from the Court on a writ petition, not only petitioner must come with
clean hands, not only must they not suppressed any material facts, not
only must they show the utmost good faith but they must also satisfy the
Court that the making of the order will do justice and that justice lies on
their side. In short, he submitted that justice of the case does not lie on
the side of the petitioners.
b. Prabhu53, and in particular paragraph 4 thereof to contend that one of
the principles inherent in exercise of writ jurisdiction is that the exercise
of power should be for the sake of justice. One of the yardstick for it is
if the quashing of the order results in greater harm to the society then the
court may restrain from exercising the power.
c. M. P. Mittal54, and in particular paragraph 5 thereof to contend that it
is well settled that when the petitioner invokes the jurisdiction of the
High Court under Article 226 of the Constitution, it is open to the High
Court to consider whether, in the exercise of its undoubted discretionary
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jurisdiction, it should decline relief to such petitioner if the grant of
relief would disentitle the interests of justice. The Court always has
power to refuse relief where the petitioner seeks to invoke its writ
jurisdiction in order to secure an dishonest advantage or perpetuate an
unjust gain.
246. On the other hand, Mr. Seervai submitted that in fact, clearance of
MOEF or State level agencies is not required having regard to the
Notification dated 09.07.1997. In any case, petitioners have obtained
clearance from the appropriate authority. Even the planning authorities
have proceeded on the premise that petitioners have obtained clearance
from the appropriate authority. He submitted that at every stage, the
principles of natural justice have been grossly violated. The impugned
report / show cause notice / orders clearly show bias as also show that
the authorities have made up their mind. In any case, after setting aside
- i) the impugned report / minutes of 20 th meeting of NCZMA dated
11.11.2010 (exhibit-C), (ii) show cause notice dated 12.11.2010
(exhibit-D) issued by respondent No.3 Dr. Bharat Bhushan, (iii) report
dated 13.01.2011 of respondent No.4 Dr. Nalini Bhat, (iv) order dated
14.01.2011 passed by respondent No.3 Dr. Bharat Bhushan and finally
(v) order dated 16.01.2011 passed by the respondent No.2, matter may
be remitted for de novo consideration of the petitioners' case. He,
therefore, submitted that this is the fittest case for invocation of extra-
ordinary jurisdiction under Article 226 of the Constitution of India.
247. As the submissions in respect of questions No.10 and 11 are
overlapping, we deem it appropriate to answer these questions together.
Before we consider case of the petitioners as regards violation of
principles of natural justice, it is necessary to find out the pleadings of
the petitioners in that regard. In paragraph 4.2, petitioners contended
that the impugned actions / impugned orders are travesty of principles of
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natural justice inasmuch as every cannon of principles of natural justice
has been blatantly violated in the instant case. The material on the basis
of which actions have been initiated is not furnished to them. The
authority / person who heard the response on show cause notice has not
made a report. The order is passed by two different authorities. The
Minister of State for MOEF has virtually indicated that he has decided
the matter, and under his dictate, the entire proceeding has been
conducted and the orders were passed as per his desire.
248. In paragraph 4.3, it is contended that the principles of natural
justice are completely violated as (a) the material on the basis of which
the orders are passed has not been furnished to the petitioners and (b)
respondent No.4 purported to grant hearing to the petitioners and
respondent No.3 has passed the order. Further, respondent no.2 Minister
claims that he has passed the order and has actually decided the matter.
249. In paragraph 5.3, it is contended that on 04.01.2011, respondent
No.4 heard the petitioners. No authority letter or resolution or
notification authorizing her to give hearing to the petitioners was ever
produced. Impugned order dated 14.01.2011 was passed by respondent
No.3 Dr. Bharat Bhushan and not by respondent No.4 Dr. Nalini Bhat
who had in fact heard the petitioners. It is well established principle of
law that division of responsibility of hearing the matter and passing the
order is destructive of concept of judicial hearing. If one person hears
and another decides, the personal hearing becomes an empty formality.
250. In paragraph 7.25, it is contended that NCZMA meeting was held
on 11.11.2010 and the show cause notice was issued on the very next
day i.e. 12.11.2010. The petitioners were not given any opportunity to
present their stand either before MCZMA (MCZMA had convened 66 th
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meeting on 03.11.2010) or NCZMA. Further, the statements of Mr. T.
C. Benjamin, Secretary, UDD and Mr. Sitaram Kunte, Secretary,
Revenue Department were not recorded in the presence of the
petitioners nor were any opportunity given to the petitioners to
controvert their statements.
251. In paragraph 9, dealing with denial of principles of natural justice,
in sub-paragraph (a), it is contended that copy of the report dated
13.01.2011 was never furnished to the petitioners to enable them to
present their case on the issues forming subject matter of the report.
Thus, there was a complete denial of opportunity to controvert / dispute
the facts / contentions / conclusions in the report. In sub-paragraph (b),
it is contended that report of respondent No.4 is based solely upon the
minutes of the meeting of NCZMA recorded on 11.11.2010 and
purported statements of Mr. T. C. Benjamin, Principal Secretary, UDD,
State of Maharashtra and Mr. Sitaram Kunte, Principal Secretary,
Revenue Department, Government of Maharashtra. The purported
statements were not made / recorded in the presence of the petitioners
and reliance on the said statements, therefore, particularly in view of
denial of right to cross-examine would amount to breach of principles of
natural justice. In sub-paragraph (c), it is contended that the petitioners
were not heard on the three options purported to have been considered
by the respondents No.1 and 2 before passing the impugned order.
Impugned order is based upon the impugned decision taken by
respondent No.2, who was not a part of panelist who heard the
petitioners on 04.01.2011. In sub-paragraph (d), it is contended that
respondent No.4 had no authority to take any decision or pass any order.
The alleged authority letter or notification authorizing respondent No.4
to conduct the hearing was not produced. In sub-paragraph (e), it is
contended that one of the panelists Dr. A. Senthil Vel was personally
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involved in the process of various sanctions to the petitioners' building
as he had issued NOC under the letter of 11.03.2003, which was later on
denied by MOEF as late as 28.10.2010. The impugned order, therefore,
suffers from an implicit bias and conflict thereby leading to a total
denial of natural justice.
252. Insofar as the pleadings as regards premeditated decision / bias
are concerned, in sub-paragraph (a), it is contended that respondent No.2
who has taken the decision reflected in the impugned order and in his
statement dated 16.01.2011 as decided as far back as October 2010 that
he would pass a direction to demolish the building of the petitioner
No.1, the same is evident from the statements made by respondent No.2
in media during that period.
253. In sub-paragraph (b), it is contended that respondent No.2 had
prejudged and pre-decided the issue much before the impugned order
and his statement dated 16.01.2011 was given. The same is evident
from the statements made by the respondent No.2 in media, both print
and television somewhere in the month of November. In sub-paragraph
(c), it is contended that from the statements of the respondent No.2 in
media, it is evident that respondent No.2 had never considered any
options other than the demolition of building of petitioner No.1 and that
the representation in the statement of the respondent No.2 issued on
16.01.2011 in relation to considering 3 options is farce.
254. In ground (aa), petitioners have alleged that the impugned
decision is a premeditated decision taken immediately after the
publication of the first newspaper report dated 25.10.2010 in the Times
of India and the entire process of issuance of show cause notice and
hearing thereupon was apparently an empty formality. In ground (qq),
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petitioners contended that while passing the impugned order and while
exercising the powers conferred upon an authority, the authority must
bring to a bare and unbiased mind, consider impartially the objections
raised by the aggrieved party and decide the matter consistent with the
principles of natural justice. The authority cannot permit its decision to
be influenced by the dictation of the others as this would amount to
abdication and surrender of its discretion and the same would not be the
authority's discretion that is exercised, but someone else's.
255. The plea of non-application of mind is raised in grounds (w) to
(z). Petitioners have reiterated submissions as regards violation of
principles of natural justice in paragraphs 4 to 6 and 18 of the rejoinder
and in written submissions.
256. We have already held that before carrying out construction
activities, clearance of the appropriate authority under 1991 Notification
as amended from time to time is necessary. On 26.11.1998, MCZMA
was constituted. On 04.01.2002, MCZMA was reconstituted and clause
(VIII) empowered the said authority to examine all projects proposed in
CRZ areas and give their recommendations before the project proposals
are referred to the Central Government or the agencies who have been
entrusted to clear such projects under 1991 Notification. We have
already held that petitioners did not even approach MCZMA for
obtaining recommendations. The recommendations of MCZMA are
mandatorily required to be obtained before the project proposals are
referred to the Central Government or to the agencies who have been
entrusted to clear such projects under CRZ Notification dated
19.02.1991. We have also held that petitioners have not obtained
environmental clearance either from MOEF or any State level agency.
The communications dated 11.03.2003 of MOEF and 15.03.2003 of
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UDD do not constitute environmental clearance either individually or
collectively. In short, this is a case of petitioners not obtaining
environmental clearance at all.
257. We have also held that while consuming FSI of BEST plot,
petitioners have not complied the conditions stipulated in- (i) LoI dated
18.01.2003 (condition No.7), (ii) letter of allotment dated 09.07.2004
(condition No.2), (iii) memorandum dated 05.08.2005 (conditions No.2
and 4) as also (iv) exercise of powers in issuing notification dated
03.03.2006 under Section 50 of M.R.&T.P. Act was illegal. We have
also held that in view of the decision of Suresh Estate's case1, 1967
DCR Rules are applicable. We have also held that as against the
permissible FSI of 1.33 as per 1967 DCR Rules, the petitioners have
consumed FSI to the extent of 2.932.
258. With this preface, let us deal with the precedents dealing with the
principles of natural justice:
259. In the case of Kesava Mills Company62, the Apex Court has held
that "the concept of natural justice cannot be put into a straight-jacket. It
is futile, therefore, to look for definitions or standards of natural justice
from various decisions and then try to apply them to the facts of a given
case. The only essential point that has to be kept in mind in all cases is
that the person concerned should have a reasonable opportunity of
presenting his case and that the administrative authority concerned
should act fairly, impartially an reasonably. Where administrative
officers are concerned, the duty is not so much to act judicially as to act
fairly." In the case of Russell v. Duke of Norfolk, (1949) 1 All. ER. 109,
it was observed that "the requirements of natural justice must depend on
the circumstances of the case, the nature of the enquiry, the rules under
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which the tribunal is acting, the subject matter that is being dealt with
and so forth."
260. In the case of A. K. Roy16, in paragraph 97, it is observed that,
"there is no fixed or certain standard of natural justice, substantive or
procedural, and in two English cases the expression 'natural justice' was
described as one 'sadly lacking in precision' [CR Vs. Local Government
Board ex-parte Arlidge, (1994) 1 K.B. 160] and as 'vacuous' [Local
Government Board Vs. Arlidge, 1915 A.C. 138]. The principles of
natural justice are, in fact, mostly evolved from case to case, according
to the broad requirements of Justice in the given case. In paragraph 98,
it was observed that "we do not suggest that the principles of natural
justice, vague and variable as they may be, are not worthy of
preservation. As observed by Lord Reid in Ridge v. Baldwin (1964 A.C.
40), the view that natural justice is so vague as to be practically
meaningless" is tainted by "the perennial fallacy that because something
cannot be cut and dried or nicely weighed or measured therefore it does
not exist". But the importance of the realisation that the rules of natural
justice are not rigid norms of unchanging content, consists in the fact
that the ambit of those rules must vary according to the context, and they
have to be tailored to suit the nature of the proceeding in relation to
which the particular right is claimed as a component of natural justice."
261. In the case of V. K. Khanna63, in paragraph 8, the Apex Court
laid down the test of bias and observed that the test, therefore, is as to
whether there is a mere apprehension of bias or there is a real danger of
bias and it is on this score that the surrounding circumstances must and
ought to be collated and necessary conclusion drawn therefrom. In the
event, however, the conclusion is otherwise that there is existing a real
danger of bias administrative action cannot be sustained. If on the other
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hand allegations pertain to rather fanciful apprehension in administrative
action, question of declaring them to be unsustainable on the basis
therefor would not arise. In paragraph 9, the Apex Court referred to the
decision of Rattan Lal Sharma v. Managing Committee Dr. Hari Ram
(Co-education) Higher Secondary School & Ors., , wherein the Apex
Court was pleased to observe that the test is real likelihood of bias even
if such bias was, in fact, the direct cause.
262. In the case of All India State Bank Officers' Federation Vs.
Union of India81, in paragraph 21, the Apex Court observed that for an
allegation of mala fide to succeed it must be conclusively shown that
respondents 4 and 5 wielded influence over all the members of the
Board who were present in the said meeting. No such allegation has
been made. In paragraph 22, it was further held that neither the
Chairman nor the Directors, who were present in the said meeting, were
impleaded as respondents. This being so the petitioners cannot be
allowed to raise the allegations of mala fide, which allegations, in fact,
are without merit.
263. In Ratnagiri Gas & Power Private Limited Vs. Rds Projects
Limited82, the Apex Court held in paragraph 25 that the law casts a
heavy burden on the person alleging mala fides to prove the same on the
basis of facts that are either admitted or satisfactorily established and/or
logical inferences deducible from the same. This is particularly so when
the petitioner alleges malice in fact in which event it is obligatory for the
person making any such allegation to furnish particulars that would
prove mala fides on the part of the decision maker. Vague and general
allegations unsupported by the requisite particulars do not provide a
sound basis for the court to conduct an inquiry into their veracity. In
81 (1997) 9 SCC 151
82 (2013) 1 SCC 524
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paragraph 27, it was observed that as and when allegations of mala fides
are made, the persons against whom the same are levelled need to be
impleaded as parties to the proceedings to enable them to answer the
charge. In the absence of the person concerned as a party in his/her
individual capacity it will neither be fair nor proper to record a finding
that malice in fact had vitiated the action taken by the authority
concerned. It is important to remember that a judicial pronouncement
declaring an action to be mala fide is a serious indictment of the person
concerned that can lead to adverse civil consequences against him.
Courts have, therefore, to be slow in drawing conclusions when it comes
to holding allegations of mala fides to be proved and only in cases
where based on the material placed before the Court or facts that are
admitted leading to inevitable inferences supporting the charge of mala
fides that the Court should record a finding in the process ensuring that
while it does so, it also hears the person who was likely to be affected by
such a finding.
264. In the case of Dharampal Satyapal Limited25, in paragraph 39,
the Apex Court was observed that while emphasizing that the principles
of natural justice cannot be applied in strait jacket formula, the
principles of natural justice which are grounded on the doctrine of
procedural fairness, accuracy of outcome leading to general social goals,
etc. Nevertheless, there may be situations wherein for some reason,
perhaps because the evidence against the individual is thought to be
utterly compelling, it is felt that a fair hearing 'would make no
difference', meaning that a hearing would not change the ultimate
conclusion reached by the decision-maker then no legal duty to supply a
hearing arises. Such an approach was endorsed by Lord Wilberforce in
Malloch v. Aberdeen Corporation, (1971) 2 ALL.E.R. 1278, who said
that a 'breach of procedure...cannot give (rise to) a remedy in the courts,
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unless behind it there is something of substance which has been lost by
the failure. The court does not act in vain'. Relying on these comments,
Brandon LJ opined in Cinnamond v. British Airports Authority, (1980) 2
ALL E.R. 368 that 'no one can complain of not being given an
opportunity to make representations if such an opportunity would have
availed him nothing'. In such situations, fair procedures appear to serve
no purpose since 'right' result can be secured without according such
treatment to the individual.
265. In paragraph 40, it was observed that "Even if it is found by the
Court that there is a violation of principles of natural justice, the Courts
have held that it may not be necessary to strike down the action and
refer the matter back to the authorities to take fresh decision after
complying with the procedural requirement in those cases where non-
grant of hearing has not caused any prejudice to the person against
whom the action is taken. Therefore, every violation of a facet of natural
justice may not lead to the conclusion that order passed is always null
and void. The validity of the order has to be decided on the touchstone
of 'prejudice'. The ultimate test is always the same, namely, the test of
prejudice or the test of fair hearing". The Apex Court referred to
decision of B. Karunakar47, and in particular paragraph 30 thereof. In
paragraph 31 of B. Karunakaran's case47, it was held that if after
hearing the parties, the Court/Tribunal comes to the conclusion that the
non-supply of the report would have made no difference to the ultimate
findings and the punishment given, the Court/Tribunal should not
interfere with the order of punishment. The Court/ Tribunal should not
mechanically set aside the order of punishment on the ground that the
report was not furnished. The Court should avoid resorting to shortcuts.
Since it is the Courts / Tribunals which will apply their judicial mind to
the question and give their reasons for setting aside or not setting aside
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the order of punishment, there would be neither a breach of the
principles of natural justice nor a denial of the reasonable opportunity.
266. In S. L. Kapoor46, it was observed in paragraph 17 that whether
the failure to observe natural justice does at all matter if the observance
of natural justice would have made no difference, the admitted or
indisputable facts speaking for themselves. Where on the admitted or
indisputable facts only one conclusion is possible and under the law
only one penalty is permissible, the Court may not issue its writ to
compel the observance of natural justice, not because it approves the
non observance of natural justice but because Courts do not issue futile
writs. But it will be a pernicious principle to apply in other situations
where conclusions are controversial, however, slightly, and penalties are
discretionary.
267. In the case of M/s. PRP Exports77, the Apex Court considered
decision of All India Railway Recruitment Board31 which
distinguished Mohinder Singh Gill's case28, stating when a larger
public interest is involved, the Court can always look into the
subsequent events and in such situations, additional grounds can be
looked into to examine validity of the order.
268. In the case of Indore Textiles Mill Limited56, the Division Bench
of Madhya Pradesh High Court considered the decision of the Apex
Court in Gullapalli Nageswararao12 in the context of the principle that
'one who hears, must decide the case'. In paragraph 7, it was observed
that when a quasi-judicial power is conferred on the Government or a
Minister, by a statute, it is presumed that Parliament intends the power
to be exercised in accordance with the principles of natural justice
according to the usual practice of the department concerned. The normal
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practice of Government departments is that the Minister in charge of the
Department takes assistance from subordinate officials of his
department. There is no breach of natural justice if the investigation or
the hearing part is done by an official or a committee and the final
decision is taken by the Minister after going through the report of the
officer concerned and the evidence and material collected by him. Even
in acting upon such a report the Minister may take assistance from
others in his department and the decision reached by him cannot be
tested being in violation of the principles of natural justice if he has
honestly applied his mind to the relevant material and the decision
reached by him is really his decision.
269. In paragraph 12, it was observed that the case of Gullapalli
Nageswararao12 must be confined to the construction of Section 68D of
the Motor Vehicles Act and the rules made thereunder which specifically
required "giving an opportunity to the person of being heard in person".
The case cannot be understood to have decided that whenever a quasi-
judicial power is conferred on the Government, the Minister concerned
must himself hear and he cannot act on the report of an officer to whom
the hearing function is delegated.
270. Applying the principles laid down in the aforesaid decisions, we
will deal with the contention of Mr. Seervai that various facets of the
principles of natural justice are violated.
271. 10(a) Non - supply of report of respondent No.4 Dr. Nalini
Bhat - We have already noted the contentions raised in the Petition
namely, the material on the basis of which the orders are passed, has not
been furnished to the petitioners (report of Respondent No.4, Dr. Nalini
Bhat).
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272. Mr. Seervai relied upon Dhakeswari Cotton Mills Limited19 and
Saroj Kumar Sinha18 to contend that non-supply of report of
respondent No.4 Dr. Nalini Bhat has vitiated the entire proceedings. We
have already dealt with this aspect and held that petitioners have to
plead and prove the prejudice. Had the report been submitted, it would
have made any difference in the outcome of the proceedings. In view
thereof, these decisions do not advance the case of the petitioners.
273. In the case of B. Karunakar47, the Apex Court was considering
the question whether non furnishing of the enquiry report has caused
prejudice to the delinquent employee. It was observed in paragraph 7(v)
that the theory of reasonable opportunity and the principles of natural
justice have been evolved to uphold the rule of law and to assist the
individual to vindicate his just rights. They are not incantations to be
invoked nor rites to be performed on all and sundry occasions. Whether
in fact, prejudice has been caused to the employee or not on account of
the denial to him of the report, has to be considered on the facts and
circumstances of each case. Where, therefore, even after the furnishing
of the report, no different consequence would have followed, it would be
a perversion of justice to permit the employee to resume duty and to get
all the consequential benefits. It amounts to rewarding the dishonest and
the guilty and thus to stretching the concept of justice to illogical and
exasperating limits. It amounts to a "unnatural expansion of natural
justice" which in itself is antithetical to justice. In all cases where the
Inquiry Officer's report is not furnished to the delinquent employee in
the disciplinary proceedings, the courts and Tribunals should call the
copy of the report to be furnished to the aggrieved employee if he has
not already secured it before coming to the Court / Tribunal, and give
the employee an opportunity to show how his or her case was prejudiced
because of the non-supply of the report. If after hearing the parties, the
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Court / Tribunal comes to the conclusion that the non-supply of the
report would have made no difference to the ultimate findings and the
punishment given, the Court / Tribunal should not interfere with the
order of punishment. The Court / Tribunal should not mechanically set
aside the order of punishment on the ground that the report was not
furnished. It is only if the Court / Tribunal finds that the furnishing of
the report would have made the difference to the result in the case that
should set aside the order of punishment.
274. In the case of Haryana Financial Corporation49, in paragraph
21, the Apex Court held that the person who is not supplied with the
report has to plead and prove that non-supply of report caused prejudice
and resulted in miscarriage of justice. In the present case, the petitioners
have annexed report of respondent No.4 Dr. Nalini Bhat. Even after
getting copy of that report, in the Petition, petitioners have not proved
that had the report been given to them in advance, it would have made
any difference. The decision in B. Karunakar47 was considered therein
as also in Dharampal Satyapal Limited's case25 . After perusing the
assertions in the Petition, we do not find that petitioners have pleaded
and proved that because of non-supply of report of respondent No.4 Dr.
Nalini Bhat, any prejudice is caused to them or that had the report been
supplied to them, it would have made any difference to the ultimate
findings and it would have had any bearing on the impugned orders.
Question No.10(a) is answered accordingly.
275. 10(b) Not permitting the petitioners to cross-examine Mr. T.
C. Benjamin and Mr. Sitaram Kunte - Petitioners allege that
statements of Mr. T. C. Benjamin and Mr. Sitaram Kunte were
extensively quoted in the meeting of MCZMA behind the back of the
petitioners and they were not given opportunity to cross-examine these
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witnesses. Mr. Seervai relied upon the following decisions:
a. Bareilly Electricity Supply14
b. Kishan Chand Chelaram15
c. Meenglas Tea Estate13
d. Nusli Neville Wadia17
276. In the first place, this contention proceeds on the misconception
that they were examined as witnesses, which is factually incorrect.
Secondly, Mr. T. C. Benjamin and Mr. Sitaram Kunte had placed factual
material on record before the MCZMA. During the course of lengthy
hearing before this Court, petitioners were not in a position to satisfy us
that no environmental clearance was required or that if required,
communications dated 11.03.2003 and 15.03.2003 constituted
environmental clearance. The petitioners did not establish that
construction of the building is within permissible FSI. We, therefore, do
not find any merit in the submission of Mr. Seervai that the principles of
natural justice are violated as petitioners were not permitted to cross-
examine Mr. T. C. Benjamin and Mr. Sitaram Kunte. Question No.10(b)
is answered accordingly.
277. 10(c) Hearing by respondent No.4 Dr. Nalini Bhat and
passing of order dated 14.01.2011 by respondent No.3 Dr. Bharat
Bhushan - Mr. Seervai relied upon the decision of Gullapalli
Nageswararao12, which was subsequently followed in three cases,
namely, Rasid Javed73, Shiv Raj74, and Automotive Tyre Mfgrs.
Assocn.11. In the case of Gullapalli Nageswararao12, the Apex Court
considered Section 68-D(2) which provided that the State Government
may, after considering the objections and after giving an opportunity to
the objector or his representatives and the representatives of the State
Transport Undertaking to be heard in the matter, if they so desire,
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approve or modify the scheme. Rule 10 thereof dealt with consideration
of the scheme and provided that after the receipt of the objections, the
Government may, after fixing the date, time and place for holding an
inquiry and after giving a person so desire, at least 7 clear days notice of
such time and place to the persons who filed objections under rule 8,
proceed to consider the objections and pass such orders as they may
deem fit after giving an Opportunity to the person of being heard in
person or through authorised representatives. One of the parties to the
dispute before the State Government was the Transport Department and
the Secretary who heard the parties was the Head of the Department. It
was observed that though the Secretary presumably discussed the matter
with the Chief Minister before the latter approved the scheme and
though the formal orders were made by the Chief Minister, in effect and
substance, the enquiry was conducted and personal hearing was given
by one of the parties to the dispute itself.
278. In paragraph 31, it was observed that the Act and the Rules
framed thereunder impose a duty on the State Government to give a
personal hearing. The procedure prescribed by the Rules impose a duty
on the Secretary to hear and the Chief Minister to decide. This divided
responsibility is destructive of the concept of judicial hearing. Such a
procedure defeats the object of personal hearing. In our opinion, this
decision does not advance the case of the petitioners and is rightly
distinguished in Indore Textiles Mills case56. The case of Gullapalli
Nageswararao12, must be confined to the construction of Section 68-D
of the Motor Vehicles Act and the Rules made thereunder which
specifically required "giving an opportunity to the person of being heard
in person". The case cannot be understood to have decided that
whenever a quasi-judicial power is conferred on the Government, the
Minister concerned must himself hear and he cannot act on the report of
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an officer to whom the hearing function is delegated. In the present case,
Section 5 of the E.P. Act does not contemplate giving a personal hearing.
That apart, respondent No.4 was authorized to give hearing to the
petitioners and accordingly, she heard the petitioners and thereafter
prepared a report. In view thereof, decisions of Gullapalli
Nageswararao12 as also Rasid Javed73, Shiv Raj74, and Automotive
Tyre Mfgrs. Assocn.11 do not advance the case of the petitioners as we
have already held that in the present case, the decision is the institutional
decision.
279. As noted earlier, by order dated 30.09.2009, respondent No.4 Dr.
Nalini Bhat was authorized to to hear the petitioners and Dr. Senthil Vel
and respondent No.3 Dr. Bharat Bhushan were to assist her at the time
of hearing. The petitioners do not dispute presence of Dr. Bharat
Bhushan. They submitted that order passed by Dr. Bharat Bhushan is
vitiated as he did not hear the petitioners and the petitioners were heard
by respondent No.4 Dr. Nalini Bhat. In this regard, it is material to note
that by order dated 30.09.2009, respondent No.4 Dr. Nalini Bhat was
authorized to hear the petitioners and Dr. Senthil Vel and respondent
No.3 Dr. Bharat Bhushan were to assist her at the time of hearing. It is
not in dispute that respondent No.4 Dr. Nalini Bhat has prepared the
report. From the material on record, it is evident that respondent No.3
Dr. Bharat Bhushan had prepared draft order for approval of respondent
No.2 and respondent No.3 has passed the final order on 14.01.2011.
280. In that context, the decision of Madhya Pradesh High Court in
Indore Textile Mills Limited56 is material. In paragraphs 7 to 10, it was
observed thus,
7. When a quasi-judicial power is conferred on the Government
or a Minister, by a statute, it is presumed that Parliament intends
the power to be exercised in accordance with the principles of
natural justice according to the usual practice of the department
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concerned. The normal practice of Government departments is
that the Minister in charge of the Department takes assistance
from subordinate officials of his department. There is no breach
of natural justice if the investigation or the hearing part is done by
an official or a committee and the final decision is taken by the
Minister after going through the report of the officer concerned
and the evidence and material collected by him. Even in acting
upon such a report the Minister may take assistance from others
in his department and the decision reached by him cannot be
tested being in violation of the principles of natural justice if he
has honestly applied his mind to the relevant material and the
decision reached by him is really his decision. (Wade,
Administrative Law. 4th Edition, p. 467: De Smith, Judicial
Review of Administrative Action, 4th Edition, p. 220). In Local
Government Board v. Arlidge, (1915) AC 120 (HL), which is
leading authority on the point, it was held by the House of Lords
that an order passed by the Minister, who was head of the Local
Government Board, in an appeal, which required a quasi-judicial
procedure, could not be set aside on the ground that the enquiry in
relation to the appeal was not made by and the hearing was not
given by the Minister but by an official of the Board. In holding,
so Viscount Haldane, L. C. made the following observations;
"The Minister at the head of the Board Is directly
responsible to Parliament like other Ministers. He is
responsible not only for what he himself does but for all that
is done in his department. The volume of work entrusted to
him is very great and he cannot do the great bulk of it
himself. He is expected to obtain his materials vicariously
through his officials, and he has discharged his duty if he
sees that they obtain these materials for him properly. To try
to extend his duty beyond this and to insist that ho and other
members of the Board should do everything personally
would be to impair his efficiency. Unlike a Judge in a Court
he is not only at liberty but is compelled to rely on the
assistance of his Staff."
8. The principle laid down in Arlidge's case (1915 AC 120) was
accepted by the Privy Council in the case of Jeffs v. New Zealand
Dairy Production and Marketing Board, (1967) 1 AC 551 (PC). In
this case, the respondent Board was conferred with a quasi-
judicial power by a statute to make a zoning order, it was held
that the Board could appoint a person or persons to hear and
receive evidence and submissions from interested parties, and if it
reached the decision after fully informing itself of the evidence
and submissions made, it could not be said that the Board had not
heard the interested parties and had acted contrary to the
principles of natural justice. It was also held that in some
circumstances it may even suffice for the Board to have before it
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and to consider an accurate summary of the relevant evidence and
the submissions if the summary adequately disclosed the
submission and evidence to the Board. The decision of the Board
was, however, set aside on the ground that the report which the
Board considered did not state what the evidence was and the
Board reached its decision without consideration of and in
ignorance of the evidence.
9. The principle that when a auasi-judicial power is conferred on
a Government department or a Minister, the pre-decision hearing
need not be by the persons passing the final order has also been
accepted in the American Administrative Law, it was no doubt
observed by Chief Justice Hughes in the Fred O Morgan case,
(1938) 298 US 468, that "the one who decides must hear." But
these observations have not to be understood in a literal sense.
The word "hear" is used here in the artistic sense of requiring
certain procedural minimum to insure an informed judgment by
the one who has the responsibility of making the final decision
and it does not necessitate that the person making the final
decision must himself be the presiding officer at the hearing. In
other words, the one who decides must give heed to the case and,
directing his mind to it, must be the one who actually exercises
the deciding function. It is not necessary that the person deciding
should himself take the evidence and hear the oral arguments :
(see Schwarts, Administrative Law, (1976) pp. 378 to 383). As
observed by Professor wade :
"The work of holding the inquiry and reporting on the
evidence must be delegated to officials, and so in many cases
must be the substantive decision itself. But what the Supreme
Court of the United States continued to require was that the
decision should be the personal decision of the Minister in the
sense that he sees the record and exercises his personal
judgment upon it. The case may be predigested for him in his
department, but he is the one who is required to decide. He
must therefore 'hear' in the sense of applying his mind to both
sides of the case." (Wade, Administrative Law, 4th edition, p.
825).
10. The development of the Indian Administrative Law is also on
the same lines (Jain and Jain, Principles of Administrative Law,
3rd edition, p. 250). The Supreme Court in Pradyut Kumar v. C. J.
of Calcutta. AIR 1956 SC 285, expressly approved and followed
the decision of the House of Lords in Arlidge's case (1915 AC
120). In Pradyut Kumar's case, the question was whether the
Chief Justice who had the power to dismiss could not authorise a
Judge to make enquiry into the charges and to report and whether
it was obligatory on him to himself make the enquiry. In holding
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that it was not necessary for the Chief Justice himself to make the
enquiry, it was observed that although in case of a judicial
tribunal, the tribunal cannot delegate its functions unless it is
enabled to do so expressly or by necessary implication, the
position is different in case of an administrative power which has
to be exercised in a quasi-judicial manner and the statutory
functionary exercising such a power cannot be said to have
delegated his functions merely by deputing a responsible and
competent officer to enquire and report. It was further observed
that what cannot be delegated is the ultimate responsibility for the
exercise of the power. Arlidge's case had also decided that when
hearing is held by one officer and the final decision is taken by
another on the basis of the hearing officer's report, it is not always
necessary to disclose the report to the affected person for inviting
his comments before making the final decision. This principle has
also been accepted by our Supreme Court : (Suresh Koshy v.
University of Kerala, AIR 1969 SC 198; Kesava Mills Cc. v.
Union of India. AIR 1973 SC 389: Shadi Lal v. State of Punjab.
AIR 197.) SC 1124 and Hira Nath v. Rajendra Medical College,
AIR 1973 SC 1260.
281. In the case of A. Sanjeevi Naidu61, the Apex Court observed in
paragraphs 12 to 17 thus,
12. The cabinet is responsible, to the legislature for every
action taken in any of the ministries. That is the essence of joint
responsibility. That does not mean that each and every decision
must be taken by the cabinet. The political responsibility of the
Council of Ministers does not and cannot predicate the personal
responsibility of the Ministers to discharge all or any of the
governmental functions. Similarly an individual Minister is
responsible to the legislature for every action taken or omitted to
be taken in his ministry. This again is a political responsibility
and not personal responsibility. Even the most hard working
minister cannot attend to every business in his department. If he
attempts to do it, he is bound to make a mess of his department.
In every well planned administration, most of the decisions are
taken by the civil servants who are likely to be experts and not
subject to political pressure. The Minister is not expected to
burden himself with the day to day administration. His primary
function is to. lay down the policies and programmes of his
ministry while the Council of Ministers settle the major policies
and programmes of the 'government. When a civil servant takes a
decision, he does not do it as a delegate of his Minister. He does it
-on behalf of the government. It is always open to a Minister to
call for any file in his ministry and pass orders. He may also issue
directions to the officers in his ministry regarding the disposal of
government business generally or as regards any specific case.
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Subject to that over all power, the officers designated by the
'Rules' or the standing orders, can take decisions on behalf of the
government. These officers are the limbs of the government and
not its delegates.
13. In Emperor v. Sibnath Banerji and ors. (1) construing
Section 59(3) of the Government of India Act, 1935, a provision
similar to Article 166(3), the Judicial Committee held that it was
within the competence of the Governor to empower a civil
servant to transact any particular business of the government by
making appropriate rules. In that case their Lordships further
observed that the Ministers like civil servants are subordinates to
the Governor. In Kalyan Singh v. State of U.P.: this Court
repelling the contention that the opinion formed by an official of
the government does not fulfil the requirements of Section 68 (C)
observed :
"The opinion must necessarily be formed by somebody
to whom, under the rules of business, the conduct of
the business is entrusted and that opinion, in law, will
be the opinion of the State Government. It is stated in
the counter-affidavit that all the concerned officials in
the Department of Transport considered the draft
scheme and the said scheme was finally approved by
the Secretary of the Transport Department before the
notification was issued. It is not denied that the
Secretary of the said Department has power under the
rules of business to act for the State Government in
that behalf. We, therefore, hold that in the present case
the opinion was formed by the State transport
undertaking within the meaning of s. 68 (C) of the Act,
and that, there was nothing illegal in the manner of
initiation of the said Scheme".
14. In Ishwarlal Girdharlal Joshi etc. v. State of Gujarat and
another, this Court rejected_the contention that the opinion
formed by the Deputy Secretary under Section 17(1) of the Land
Acquisition Act cannot be considered as the opinion of the State
government. After referring to the rules of business regulating the
government business, this Court observed at p. 282-
"In our case the Secretaries concerned were given the
jurisdiction to take action on behalf of Government and
satisfy themselves about the need for acquisition under
Section 6, the urgency of the matter and the existence
of waste and arable lands for the application of sub-
sections (1) and (4) of s. 17. In view of the Rules of
business and the Instructions their determination
became the determination of Government and no
exception could be taken."
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15. In Capital Multi-purpose Co-operative Society v. State of
Madhya Pradesh and Ors. (1), this Court dealing with the scope
of s. 68 (D) of the Act observed that the State Government
obviously is not a natural person and therefore some natural
person has to give hearing on behalf of the State Government and
hence the hearing given by the special secretary pursuant to the
power conferred on him by the business rules framed under
Article 166(3) is a valid hearing.
16. As mentioned earlier in the very nature of things, neither
the Council of Ministers nor an individual Minister can attend to
the numerous matters that come up before the Government.
Those matters have to be attended to and decisions taken by
various officials at various levels. When those officials discharge
the functions allotted to them, they are doing so as limbs of the
government and not as persons to whom the power of the
government had been delegated. In Halsbury Laws of England
Vol. I 3rd Edn. at p. 170, it is observed :
"Where functions entrusted to a Minister are performed
by an official employed-in the Minister's department,
there is in law no delegation because constitutionally
the act or decision of the official is that of the
Minister."
17. Similar view has been expressed in "Principles of
Administrative Law" by Griffith and Street. That is also the view
taken by Sir Ivor Jennings in his "Cabinet Government".
282. Thus, in the present case, on the basis of the order dated
30.09.2009, respondent No.4 Dr. Nalini Bhat heard the petitioners and
submitted the report. After receipt of the report, respondent No.3 Dr.
Bharat Bhushan prepared draft order and submitted it to the approval of
respondent No.2 Mr. Jayaram Ramesh, the then Hon'ble Minister of
MOEF. After obtaining the approval from respondent No.2, respondent
No.3 Dr. Bharat Bhushan passed final order on 14.01.2011. As observed
in the case of Indore Textile Mills Limited56 when a quasi-judicial
power is conferred on the Government or a Minister, by a statute, it is
presumed that Parliament intends the power to be exercised in
accordance with the principles of natural justice according to the usual
practice of the department concerned. The normal practice of
Government departments is that the Minister in charge of the
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Department takes assistance from subordinate officials of his
department. There is no breach of natural justice if the investigation or
the hearing part is done by an official or a committee and the final
decision is taken by the Minister after going through the report of the
officer concerned and the evidence and material collected by him. Even
in acting upon such a report the Minister may take assistance from
others in his department and the decision reached by him cannot be
tested being in violation of the principles of natural justice if he has
honestly applied his mind to the relevant material and the decision
reached by him is really his decision. In that case, the following
observations of Viscount Haldane, L.C. in Local Government Board Vs.
Arlidge, (1915) AC 120 (HL) were quoted:
"The Minister at the head of the Board is directly responsible to
Parliament like other Ministers. He is responsible not only for what he
himself does but for all that is done in his department. The volume of
work entrusted to him is very great and he cannot do the great bulk of it
himself. He is expected to obtain his materials vicariously through his
officials, and he has discharged his duty if he sees that they obtain these
materials for him properly. To try to extend his duty beyond this and to
insist that ho and other members of the Board should do everything
personally would be to impair his efficiency. Unlike a Judge in a Court
he is not only at liberty but is compelled to rely on the assistance of his
Staff."
283. In the Fred O Morgan case, (1938) 298 US 468, the learned Chief
Justice Hughes observed that "the one who decides must hear". But
these observations have not to be understood in a literal sense. The word
"hear" is used here in the artistic sense of requiring certain procedural
minimum to insure an informed judgment by the one who has the
responsibility of making the final decision and it does not necessitate
that the person making the final decision must himself be the presiding
officer at the hearing. In other words, the one who decides must give
heed to the case and, directing his mind to it, must be the one who
actually exercises the deciding function. It is not necessary that the
person deciding should himself take the evidence and hear the oral
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arguments.
284. We have already extracted paragraphs 12 and 13 of A. Sanjeevi
Naidu61 hereinabove. In view thereof, in our opinion, this is a case of
institutional decision, and therefore, we find no merit in the submission
of Mr. Seervai that as the hearing was given by one person and order
was passed by another person, the order passed by the respondent No.3
Dr. Bharat Bhushan on 14.01.2011 is vitiated on that ground. In the
present case, the following facts become evident from material on
record:
i. Environmental clearance
ig is necessary under the 1991
Notification, as amended from time to time;
ii. Petitioners have not approached MCZMA and also did not obtain
recommendations;
iii. Petitioners have not obtained environmental clearance either from
MOEF or from the State level agency. In short, it is the case of no
environmental clearance at all;
iv. Petitioners have committed breach of conditions stipulated in- (i)
LoI dated 18.01.2003 (condition No.7), (ii) letter of allotment dated
09.07.2004 (condition No.2), (iii) memorandum dated 05.08.2005
(conditions No.2 and 4) as also exercise of powers in issuing notification
dated 03.03.2006 under Section 50 of M.R.&T.P. Act was illegal;
v. Letters dated 11.03.2003 and 15.03.2003 do not individually or
collectively constitute environmental clearance;
vi. Even otherwise, communication dated 15.03.2003 of UDD cannot
be construed as environmental clearance as it is Environment
Department of the State Government, who was at the relevant time,
competent to issue environmental clearance and not the UDD;
vii. 1967 DCR are applicable and not draft 1989 DCR or 1991 DCR.
As against permissible FSI of 1.33 under 1967 DCR, petitioners have
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consumed FSI to the extent of 2.932.
285. Applying the test applied by the Apex Court in the case of
Dharampal Satyapal Limited25, we are of the opinion that no purpose
will be served by directing respondents to hear the petitioners as no
different conclusion is possible in the facts and circumstances of the
present case. Question No.10(c) is answered accordingly.
286. 10(d)(i) - By participating in the NCZMA meeting dated
11.11.2010, respondent No.3 - Dr. Bharat Bhushan, respondent No.4
- Dr. Nalini Bhat, Dr. A. Senthil Vel and Mr. E. Thirunavukarasu
have disqualified themselves in dealing with the petitioners' case
and
10(d)(ii) - the above officers were having bias against the
petitioners;
287. Mr. Seervai submitted that the impugned order of demolition is
violative of various facets of principles of natural justice, of which the
most serious and fundamental breach is that of bias. In support of this
proposition, he relied upon the following decisions:
a. Rattanlal Sharma10 - In this case, the appellant was appointed as
Principal of Dr. Hariram (Co-Edn) Higher Secondary School. He was
placed under suspension by the Managing Committee of the said school
and the charge-sheet containing 12 charges was issued to the appellant.
The school authorities appointed Enquiry Committee consisting of three
members of which Mr. Maru Ram was one of the members. It was an
admitted position that said Mr. Maru Ram appeared as witness in
support of charge No.12 on behalf of the administration in the said
inquiry proceedings. The appellant raised objection for inclusion of Mr.
Maru Ram in the enquiry committee but the same was overruled. The
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learned Single Judge of Punjab & Haryana High Court allowed the
Petition filed by the appellant on the ground that the departmental
proceedings was vitiated for the flagrant violation of principles of
natural justice as charge No.12 was sought to be proved by Mr. Maru
Ram himself. The Division Bench however held that the plea of bias
could be waived. In paragraph 11, the Apex Court held that Mr. Maru
Ram was interested in establishing charge No.12 and it was apparent that
he had a predisposition to decide against the appellant and though the
appellant had raised the objection before the enquiry committee, the said
objection was rejected on a very flimsy ground.
In paragraph 12, it was observed that if the plea though not
specifically raised before the subordinate tribunals or the administrative
and quasi-judicial bodies, is raised before the High Court in the writ
proceeding for the first time and the plea goes to the root of the question
and is based on admitted and uncontroverted facts and does not require
any further investigation into a question of fact, the High Court is not
only justified in entertaining the plea but in the anxiety to do justice
which is the paramount consideration of the Court, it is only desirable
that litigant should not be shut out from raising such plea which goes to
the root of the lis involved. In the present case, we have already
extracted plea of bias. We do not find that any foundation is laid in the
Petition. Plea of bias is also not based on admitted or uncontroverted
facts and it also requires further investigation. The decision, therefore,
does not advance the case of the petitioners.
b. A. K. Kraipak9 - In this case, petitions were instituted under Article
32 by some of the Gazetted Officers serving as Conservators of Forests,
some as Divisional Forest Officers and others as Assistant Conservators
of Forests in the Forest Department of the State of Jammu & Kashmir.
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They felt aggrieved by the selections made from among the officers
serving in the forest department of the State of Jammu and Kashmir to
the Indian Forest Service. In pursuance of the regulation 3, Special
Selection Board was constituted for the purpose of selection. One of the
candidates Shri Naquishbund was also appointed as one of the members
of the selection board. In paragraph 15, the Apex Court held that under
the circumstances, it was improper to have included Naquishbund as a
member of the selection board. He was one of the persons to be
considered for selection and it was against all canons of justice to make
a man judge in his own cause. In our opinion, the said decision also
does not advance the case of the petitioners.
c. Institute of Chartered Accountants8 - In this case, Disciplinary
Committee consisted of the President, S.K. Gupta, the Vice-President,
N.C. Krishnan, two members of the Institute, R.K. Khanna and Bansi S.
Mehta and the Government nominee, Ganapathi. The Disciplinary
Committee gave a personal hearing to respondent Ratna and his counsel.
The Disciplinary Committee opined that respondent Ratna was guilty of
misconduct. In paragraph 25, the Apex Court observed that the
President and the Vice-President do certainly hold significant status in
the meetings of the Council. A member whose conduct has been the
subject of enquiry by the Disciplinary Committee ending in conclusions
adverse to him can legitimately entertain an apprehension that the
President and the Vice-President of the Council and the other members
of the Disciplinary Committee would maintain the opinion expressed by
them in their report and would press for the acceptance of the report by
the Council. To the member whose conduct has been investigated by the
Committee, the possibility of the Council disagreeing with the report in
the presence of the President and the Vice-President and the other
members of the Committee would so rather remote. The Apex Court,
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therefore, concurred with the High Court that the finding of the Council
holding respondent guilty of misconduct is vitiated by the participation
of the members of the Disciplinary Committee. In our opinion, this
judgment is also not applicable to the facts of the present case.
d. Sanjay Jethi20- In this case, in paragraph 16, the Apex Court noted
issues namely, whether the tribunal was justified in holding that the
constitution of Court of Inquiry (COI) which consisted of two technical
members and the presiding officer was vitiated as there was possibility
of they are having an interest in the proceedings as a consequence of
which being bias or there could be a perception or likelihood of bias in
decision making process which would raise a doubt pertaining to the
decision by a prudent or rational person and whether the presiding
officer and technical member should have been made available for cross-
examination in a COI in compliance of Rule 180 and in view of the
earlier order passed in the case between the same parties there has been
real violation of principles of natural justice which ultimately vitiates the
proceedings of additional COI. In paragraph 33.3, it was observed that
technical members having prepared and arranged the documents, which
would mean that they had expressed an opinion at an early stage, yet
they were retained as members of COI as a consequence of which the
principles of natural justice were violated for one cannot be the judge in
his own cause. For the reasons already recorded, we are of the opinion
that this judgment also does not advance the case of the petitioners.
288. We have also considered the pleadings. Though elaborate
arguments were advanced on this point, petitioners have, as a passing
reference, pleaded in paragraph 9(e) that one of the panelists Dr. Senthil
Vel was personally involved in the process of various sanctions to the
petitioners' building as he had issued no objection under the letter dated
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11.03.2003 which was later on denied by MOEF as late as 28.10.2010.
The impugned order, therefore, suffers from the implicit bias and
conflict thereby leading to a total denial of natural justice.
289. In the present case, petitioners have not impleaded Dr. A. Senthil
Vel. There are no allegations of bias against the respondent No.3 Dr.
Bharat Bhushan, respondent No.4 Dr. Nalini Bhat, Mr. E.
Thirunavukarasu and Dr. Valsa Nair. In the case of Ratnagiri Gas &
Power Private Limited82, the Apex Court in paragraph 25 has held that
the law casts a heavy burden on the person alleging mala fides to prove
the same on the basis of facts that are either admitted or satisfactorily
established and/or logical inferences deducible from the same. This is
particularly so when the petitioner alleges malice in fact in which event
it is obligatory for the person making any such allegation to furnish
particulars that would prove mala fides on the part of the decision
maker. Vague and general allegations unsupported by the requisite
particulars do not provide a sound basis for the court to conduct an
inquiry into their veracity. In paragraph 27, it was observed that in the
absence of the person concerned as a party in his/her individual capacity,
it will neither be fair nor proper to record a finding that malice in fact
had vitiated the action taken by the authority concerned. It is important
to remember that a judicial pronouncement declaring an action to be
mala fide is a serious indictment of the person concerned that can lead to
adverse civil consequences against him. Courts have, therefore, to be
slow in drawing conclusions when it comes to holding allegations of
mala fides to be proved and only in cases where based on the material
placed before the Court or facts that are admitted leading to inevitable
inferences supporting the charge of mala fides that the Court should
record a finding in the process ensuring that while it does so, it also
hears the person who was likely to be affected by such a finding.
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290. In the light of this discussion, we do not find that the petitioners
have satisfied the tests laid down in paragraphs 25 and 27 of Ratnagiri
Gas & Power Private Limited82. We, therefore, do not find any merit
in the submissions of Mr. Seervai that these are the persons who have
disqualified themselves in dealing with the petitioners' case and that
they were having bias against the petitioners. Questions No.10(d)(i) and
(d)(ii) are answered accordingly.
291. 10(d)(iii) Whether the respondent No.3 had made up his mind
while issuing show cause notice dated 12.11.2010?
292. Mr. Seervai relied upon Oryx Fisheries (P) Limited5 and
Kumaon Mandal Vikas Nigam Limited6. In the case of Oryx
Fisheries (P) Limited5, the third respondent therein had issued show
cause notice dated 23.01.2008. In paragraph 22 of that report, the Apex
Court reproduced the show cause notice. The relevant portion of that
notice is to the following effect:
"22. ... At the meeting it was convincingly proved that the
cargo shipped by you to the abovementioned buyer was defective
and you have no so far settled the complaint. Therefore, in
exercise of the powers vested in me vide Office Order Part II
No.184012005 dated 25-11-2005 read with Rule 43 of the
MPEDA Rules, I hereby call upon you to show cause why the
Certificate of Registration as an exporter granted to you should
not be cancelled for reasons given below:
1. It has been proved beyond doubt that you have sent
sub-standard material to M/s. Cascade Marine Foods, LLC,
Sharjah. ..."
293. In the order passed by the third respondent, no reference was
made to the reply of the appellant except saying, that is not satisfactory.
The third respondent without giving any reason and without giving the
appellant any personal hearing, vide order dated 19.03.2008 cancelled
the registration certificate of the appellant. In paragraphs 27 and 31, it
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was observed thus,
"27. It is no doubt true that at the stage of show cause, the
person proceeded against must be told the charges against him so
that he can take his defence and prove his innocence. It is
obvious that at that stage the authority issuing the charge- sheet,
cannot, instead of telling him the charges, confront him with
definite conclusions of his alleged guilt. If that is done, as has
been done in this instant case, the entire proceeding initiated by
the show cause notice gets vitiated by unfairness and bias and the
subsequent proceeding become an idle ceremony.
...
31. It is of course true that the show cause notice cannot be
read hyper-technically and it is well settled that it is to be read
reasonably. But one thing is clear that while reading a show-
cause notice the person who is subject to it must get an
impression that he will get an effective opportunity to rebut the
allegations contained in the show cause notice and prove his
innocence. If on a reasonable reading of a show-cause notice a
person of ordinary prudence gets the feeling that his reply to the
show cause notice will be an empty ceremony and he will merely
knock his head against the impenetrable wall of prejudged
opinion, such a show cause notice does not commence a fair
procedure especially when it is issued in a quasi- judicial
proceeding under a statutory regulation which promises to give
the person proceeded against a reasonable opportunity of
defence."
294. In paragraph 37, the Apex Court held that the order of the third
respondent is a non-speaking one and is virtually no order in the eye of
law.
"37. Therefore, the bias of the third respondent which was latent
in the show cause notice became patent in the order of
cancellation of the registration certificate. The cancellation order
quotes the show cause notice and is a non-speaking one and is
virtually no order in the eye of law. Since the same order is an
appealable one it is incumbent on the third respondent to give
adequate reasons."
295. In the case of Kumaon Mandal Vikas Nigam Limited6, in
paragraph 12, the Apex Court extracted the show cause notice which
was later on treated as a charge-sheet. The relevant portion of the show
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cause notice is to the following effect:
" Lastly, it is concluded that you never kept in mind the interest of
the Nigam due to your personal vested interests. Due to your corrupt
conduct, you had no control over your subordinates. You never
submitted suggestion in the interest of the Nigam and never shown
interest in the implementation of the schemes due to which the Nigam
was unable to get the success as much as it should have, keeping in
view the natural beauty of this place. The tourism section was suffering
loss due to your activities. You always misused the Nigams tourism
section for your personal vested interest and gains. Your conduct and
integrity is highly doubtful.
Apart from the above, Nigam suffered heavy loss due to
irregularities in many purchases/matters and are being considered
separately. You failed to take specific action for getting the tourism
section in profit. You did not run the tourism section smoothly.
Therefore, you are not capable to remain in your post."
296. In paragraphs 16 and 18, after analyzing the admitted set of facts,
the Apex Court recorded the situation that emerged therefrom and
observed that the chain of events did not indicate a very fair procedure.
297. In paragraph 20, the Apex Court observed that it is a fundamental
requirement of law that the doctrine of natural justice be complied with
and the same has, as a matter of fact, turned out to be an integral part of
administrative jurisprudence of this country. The judicial process itself
embraces a fair and reasonable opportunity to defend, though, however,
we may hasten to add that the same is dependant upon the facts and
circumstances of each individual case. In that case, General Manager,
Kumaon Anusuchit Janjati Vikas Nigam was appointed as an inquiry
officer by or at the instance of the Managing Director, who was having
bias against the respondent. Incidentally, Anusuchit Janjati Vikas Nigam
was a unit of Kumaon Mandal Vikas Nigam having a common
Managing Director and admittedly, the enquiry officer was under direct
supervision of the managing director.
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298. In the present case, show cause notice was issued on 12.11.2010.
After the recitals, in paragraph 14, petitioners were called upon to show
cause within 15 days of receipt of the notice as to why the following
directions may not be made final. Paragraph 14 reads thus,
"14. Now, therefore, under the Section 5 of the Environment
(Protection) Act, 1986, you are hereby directed to show cause
within fifteen days of the receipt of this notice as to why the
following directions may not be made final.
The unauthorized structure erected by M/s. Adarsh Co-
operative Housing Society in CRZ area in Colaba area be
removed forthwith in entirety.
Please note that in case you desire to be heard in person,
this should be explicitly indicated in your reply and that such a
hearing will be held within one week of the receipt of this reply.
Please note also that in case no response is received within
the time frame of fifteen days indicated above, final directions
may be passed without any further reference to you and formal
action in terms of E(P) Act, 1986 may also be initiated.
These directions issue with the approval of the Competent
Authority.
(emphasis supplied)"
299. Petitioners gave interim reply on 24.11.2010 and a detailed reply
on 15.12.2010 through Advocate. Perusal of these replies does not even
remotely show that petitioners contended that respondent No.3 has made
up his mind while issuing the show cause notice. That apart, after
carefully perusing the show cause notice, in the present case, we are
firmly of the opinion that it cannot be said that the third respondent had
made up his mind while issuing the show cause notice. After comparing
the show cause notices in the cases of Oryx Fisheries (P) Limited5 and
Kumaon Mandal Vikas Limited6, it cannot be said that the third
respondent had made up his mind while issuing show cause notice.
Question No.10(d)(iii) is answered accordingly.
300. 10(d)(iv) the officers have abdicated their powers, functions
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and duties and acted on dictates of others - Mr. Seervai relied upon
the following three decisions:
a. Anirudhasinhji Karansinhji Jadeja21
b. Tarlochand Dev Sharma22
c. C.I.T.7
301. In the case of Anirudhasinhji Karansinhji Jadeja21, District
Superintendent of Police did not give any prior approval on his own to
record any information about the commission of an offence under
TADA. On the contrary, he made a report to the Additional Chief
Secretary and asked for permission to proceed under TADA. The Apex
Court observed in paragraph 11 that if a statutory authority has been
vested with jurisdiction, he has to exercise it according to its own
discretion. If the discretion is exercised under the direction or in
compliance with some higher authority's instruction then it will be a case
of failure to exercise discretion altogether. The Apex Court also referred
to Gordhandas Bhanji's case75.
302. In the case of Tarlochand Dev Sharma22, in paragraph 16, the
Apex Court did not record any positive finding that the impugned order
was passed at the behest of or dictated by someone else than its author,
for want of adequate material. However, it held that the impugned order
betrays the utter non-application of mind to the facts of the case and the
relevant law.
303. In the case of C.I.T.7, the question was whether an order of
assessment was passed at the instance of the higher authority. In
paragraph 20, it was observed that an Income Tax Officer while passing
an order of assessment performs judicial function. An appeal lies against
his order before the Appellate Authority. A Revision Application lies
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before the Commissioner of Income Tax. In paragraph 53, the Apex
Court observed that the noting of the Assessing Officer was specific. It
was stated so in the proceedings sheet at the instance of the higher
authorities itself. It was observed that no doubt in terms of the circular
letter issued by CBDT, the Commissioner or for that matter any other
higher authority may have supervisory jurisdiction but it is difficult to
conceive that even the merit of the decision shall be discussed and the
same shall be rendered at the instance of the higher authority who was
the supervisory authority. It was observed that it is one thing to say that
while making the orders of assessment the Assessing Officer shall be
bound by the statutory circulars issued by CBDT but it is another thing
to say that the assessing authority exercising quasi judicial function
keeping in view the scheme contained in the Act, would lose its
independence to pass an independent order of assessment. In paragraph
64, the Apex Court ultimately held that the order passed by the
Assessing Officer was at the dictates of the higher authorities.
304. In our opinion, the said judgments are not applicable as it cannot
be said that the respondents No.3 and 4 had abdicated their functions
and duties or that they fettered their discretion and acted on the dictates
of the respondent No.2 for the reasons already indicated. Question
No.10(d)(iv) is answered accordingly.
305. 10(d)(v) Whether the impugned order / action travel beyond
the show cause notice?
306. Mr. Seervai relied upon decisions in-
a) Govardhan Bhanji75;
b) Mohinder Singh Gill's case28. Submission of Mr. Khambata
that the ratio in Mohinder Singh Gill's case28 is watered down is
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wholly unacceptable. In fact Mohinder Singh Gill's case28 is
followed in the following decisions:
a. Deepak Babaria29, and in particular paragraphs 62 to 65, 69
and 70;
b. Rashmi Metaliks Limited30, and in particular paragraph 15;
c. All India Railway Recruitment Board31;
d. Dharampal Satyapal Limited25.
307. As against this, Mr. Khambata relied upon the decision in All
India Railway Recruitment Board31 to contend that the principle laid
down in Mohinder Singh Gill's case28 is not applicable where larger
public interest is involved and in such situation, the additional grounds
can be looked into to examine the validity of the impugned actions.
308. We do not find any merit in the submission of Mr. Seervai. In the
first place, the controversy between the parties is clearly borne out from
the material on record. The gist of the controversy between the parties
is set out in questions No.1 to 11 and the same is evident from the
record. The notice dated 12.11.2010 called upon petitioners to show
cause why the building should not be demolished. The petitioners gave
replies and were also heard. The petitioners were given questionnaire,
which was also replied by them. The petitioners also gave written
submissions. Secondly, assuming in favour of the petitioners that the
impugned action travels beyond the show cause notice, in view of the
decision in All India Railway Recruitment Board31, the principle laid
down in Mohinder Singh Gill's case28 is not applicable where larger
public interest is involved. In the present case, the issue concerns
serious violations of E.P.Act and the CRZ Notifications. Question
No.10(d)(v) is answered accordingly.
309. 10(e) Preparation of draft demolition order purportedly by
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Dr. A. Senthil Vel - Mr. Seervai submitted that respondents had already
made up their mind and the draft demolition order was already prepared
by Dr. A. Senthil Vel and this fact is noted in the minutes of MCZMA
meeting dated 03.11.2010.
310. On the other hand, Mr. Khambata relied upon the following
decisions:
a. Sethi Auto Services Station34, and in particular paras 14, 17 and 22;
b. Sunil Kumar Vaish35, and in particular paragraph 24 thereof and
submitted that the draft demolition order is not a decision and it was not
even communicated to the petitioners. It could be at the highest a
viewpoint of the concerned officer. We find merit in the submissions of
Mr. Khambata. Even otherwise, on the facts that are established, in the
present case, we do not find any merit in the submission as no other
conclusion in the facts of the present case can be arrived at. Question
No.10(e) is answered accordingly.
311. 10(f) Not hearing by respondent No.2 Mr. Jayram Ramesh
before accepting one of the three options - We have already held that
respondent No.3 Dr. Bharat Bhushan had prepared draft order for
approval of respondent No.2. Respondent No.2 approved the draft order.
Respondent No.3 thereafter passed final order on 14.01.2011. In fact,
last paragraph of the order clearly records that these directions are issued
with the approval of the competent authority and the competent authority
is the second respondent herein i.e. Mr. Jayram Ramesh, the then Hon'ble
Minister of MOEF. The order dated 16.01.2011 passed by respondent
No.2 shows that the MOEF decision on the Adarsh society building's
case in Mumbai is available in all its details on www.moef.nic.in. The
Adarsh Society dossier on the website contains the following:
1. The Final Order
2. Summary of Proceedings of Oral Hearing
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3. Analysis of Oral Submissions
4. Analysis of Written Submissions
5. Discussion, Consideration and Reasoning
6. Conclusions
312. Respondent No.2 thereafter observed that there were three
options available, namely -
I. Removal of the entire structure, since it is unauthorized and no
clearance whatsoever under the CRZ Notification, 1991 was
obtained;
II. Removal of that part of structure in excess of the FSI that
might have been allowed had the requisite permission been
sought from the appropriate authority, namely, FSI to the extent of
1.33 as per 1967 DCR; and
III. Recommending government takeover of the building for a
public use to be determined later.
313. It was thereafter observed that Option II was rejected since this
would have been tantamount to regularizing or condoning an egregious
violation of the 1991 Notification. Option III was considered but rejected
because - (i) even though the final use may be in the public interest, it
would still be tantamount to regularizing a violation of the 1991
Notification; and (ii) there would be substantial discretionary powers that
would vest with the State or Central Government in case of takeover.
314. Respondent No.2, after considering all the facts, circumstances,
discussion, consideration, reasoning and analysis presented in the
Adarsh Society Dossier, decided on option No.I. Thus, perusal of the
order clearly shows that respondent No.2 took into consideration entire
material on record.
315. Mr. Seervai submitted that they were not heard before accepting
option No.I. In view thereof, we have heard learned Counsel appearing
for the parties on these three options. Mr. Seervai submitted that option
No.III at this stage, is not available as Suit is pending between the State
Government and the Central Government on the issue of ownership.
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Option No.III will, therefore, have to depend upon the outcome of the
Suit. Option No.III was available at the time of passing of the order but
that option is not available after filing of the Suit. He further submitted
that land is allotted to the petitioners. Even if the structure is held to be
unauthorized and is required to be demolished, nonetheless, since the
land is allotted to the petitioners, after following due process of law,
they can still construct building as per 1967 DCR. He, therefore,
submitted that option No.III is really not an option at all.
316. He submitted that as far as option No.II is concerned, as per 1967
DCR, permissible FSI is 1.33. In other words, the portion of the
building which exceeds 1.33 FSI is required to be demolished.
However, this option is also not available as basically, option No.I
records that petitioners have not obtained environmental clearance at all.
In other words, even the building with permissible FSI cannot allow to
stand as there is no environmental clearance. We enquired from the
learned Counsel for respondents as to whether instead of demolishing
the building, they can take over as per Option III. They submitted that
neither respondent No.1-Union of India nor respondent No.7-State can
retain the building which is constructed by committing illegalities,
which includes violation of environmental laws. It is contrary to rule of
law. It will amount to penalizing private party and conferring reward on
the Government. It would lead to anomalous position. In the facts and
circumstances of the present case, only Option I is available. In view
thereof, we do not find any other option excepting option No.I was
available to respondent No.2. Even after hearing petitioners and
respondents, in the facts of the present case, we do not find any other
option available save and except option No.I. As basically, the
petitioners have not obtained environmental clearance either from
MOEF or from State level agency and as we have held that the
recommendations of MCZMA are mandatory and the environmental
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clearance is also necessary, the only option available is option No.I. We,
therefore, do not think it appropriate to remand the matter to respondent
No.2 to hear the petitioners on the 3 options. In view thereof, we do not
find any merit in this submission as well.
317. The moot question is whether the petitioners were given a
reasonable opportunity of presenting their case and the administrative
authority while exercising quasi-judicial powers acted fairly, impartially
and reasonably. It is not in dispute that a show cause notice was issued
to the petitioners on 12.11.2010. On 24.11.2010, petitioners gave
interim reply. On 15.12.2010, they gave a detailed reply. On
04.01.2011, petitioners were heard by the respondent No.4 Dr. Nalini
Bhat. After the hearing, petitioners were handed over a questionnaire
containing 13 questions. Petitioners gave written submissions on
10.01.2011. Though Section 5 of the E.P. Act does not contemplate
giving personal hearing, the petitioners were heard by the respondent
No.4. In our opinion, petitioners were given all the opportunities to
present their case. It, therefore, cannot be said that the authorities
concerned did not act fairly, impartially and reasonably. Question
No.10(f) is answered accordingly.
318. That brings to the question whether this is a fit case for invocation
of powers under Article 226 of the Constitution of India.
319. Mr. Khambata submitted that even accepting everything in favour
of the petitioners, this is not an appropriate case for invocation of
powers under Article 226 of the Constitution of India. He relied upon
the following decisions:
a. Morarji Cooverji52 and at pages 332 and 333;
b. Prabhu53 and in particular paragraph 4;
c. M. P. Mittal54 and in particular paragraph 5.
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320. In the case of Morarji Cooverji52, the Division Bench of this
Court held that it is not sufficient that the party should come to this
Court and make out a case that a particular requisition order is not valid.
In order to get that relief from the Court on a writ petition, no only must
he come with clean hands, not only must he not suppress any material
facts, not only must he show the utmost good faith, but he must also
satisfy the Court that the making of the order will do justice and that
justice lies on his side.
321. In the case of M. P. Mittal54, in paragraph 5, it is held that when a
petitioner invokes the jurisdiction of the High Court under Article 226 of
the Constitution, it is open to the High Court to consider whether, in the
exercise of its undoubted discretionary jurisdiction, it should decline
relief to such petitioner if the grant of relief would defeat the interests of
justice. The Court always has power to refuse relief where the petitioner
seeks to invoke its writ jurisdiction in order to secure a dishonest
advantage or perpetuate an unjust gain.
322. In the case of Prabhu53, it is held that one of the principles
inherent in it is that the exercise of power should be for the sake of
justice. One of the yardstick for it is if the quashing of the order results
in greater harm to the society then the court may restrain from
exercising its power. Applying the test laid down in these cases, we are
more than satisfied in the present case that this is not a fit case for
invocation of powers under Article 226 of the Constitution of India.
Petitioners have brazenly carried out unauthorized construction. The
members of the petitioners' society consists of officers of UDD, other
bureaucrats, who are well conversant with the legal position. Despite
that, they neither moved MCZMA for obtaining recommendations nor
the appropriate authority under CRZ Notification for obtaining
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environmental clearance. Attitude of the petitioner, to say the least, is
defiant and which is counter productive to rule of law and subversive.
323. We have also gone through the report prepared by the
Commission of Justice J. A. Patil (Retired), Chairman and Mr. P.
Subrahmanyam, Retired Chief Secretary, Government of Maharashtra,
Member. Perusal of the report shows that the Commission has
considered the voluminous evidence on record and prepared the report.
It inter alia depicts that the Adarsh Society (proposed) was floated in
around 1994 with Shri R. C. Thakur as the Chief Promoter and Brig. M.
M. Wanchoo (Retd.) as the Secretary. On 06.08.1994, Shri Thakur in his
capacity as Chief Promoter of Adarsh Society addressed a letter to the
then Chief Minister setting out therein that "this is a society of mainly of
serving and retired defence officers who have not been able to procure a
shelter despite full length of service to the mother land". By that letter,
allotment of land in C.S.No.4/600 admeasuring 8300 sq.mtrs. lying
adjacent to Oyster and Dolphin buildings in Colaba area was sought.
On 06.01.1995, Shri Thakur addressed a letter to the Principal Secretary,
Law and Judiciary Department, Government of Maharashtra. It was
stated therein that the said piece of land was surrounded by the defence
area and the Government of Maharashtra may not be able to use the said
land for any commercial or other purposes. Assurance was also given
that society will produce NOC from the defence authorities for
allotment. On 04.09.1996, the society's request for allotment of the said
land was turned down on the ground that in view of the CRZ
Notification dated 19.02.1991, no construction could be made upon the
land falling within 500 mtrs. from the High Tide Line. Adarsh society
would not however give up its efforts so easily. Shri Thakur, again
addressed a letter dated 20.7.1998 to the Secretary, Revenue and Forest
Department and reiterated the demand for allotment of the land in C.S.
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No.4/600 stating that as per the Development Plan of Mumbai, a 60.96
meters road has been shown towards Uran bridge and the said road is
towards the sea side and, therefore, there should be no objection from
the CRZ point of view. Shri Thakur further assured that inspite of that if
any hitch persisted from CRZ point of view, the allotment of land could
be made subject to clearance from the MOEF. On 29.12.1998, similar
letter was addressed by the Under Secretary, Revenue and Forest
Department to Brig. Wanchoo regretting the Government's inability to
allot the plot of land adjacent to Oyster and Dolphin buildings for the
said reasons.
324. On 23.2.1999, another letter was addressed on behalf of Adarsh
Society to Shri Narayan Rane, the then Chief Minister, pointing out
therein that the society had been struggling for last five years to get
allotment of the land but the same was denied on the ground of CRZ
objection. A request was made to intervene in the matter for allotment
of the land to the society that "For shelter to our members who have
dedicated their lives for the services of mother land." For the first few
years, Adarsh society could not do much for achieving its objective.
Finding that its efforts were falling short, the office bearers of the
society decided to take assistance of Shri Kanhaiyalal Gidwani who was
then an active member of Shiv Sena during the period from 1996 to
2006, and who later on became a Member of Legislative Council from
26.7.2000 to 30.5.2006. Later on, he joined the Congress party. The
evidence of Shri Thakur showed that he was introduced to Shri Gidwani
by Capt. Kala who advised him to seek help of Shri Gidwani in getting
the government land allotted to the society. Shri Gidwani was a political
figure wielding much influence and having direct access to the Chief
Minister and other Ministers.
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325. It was, therefore, decided by Shri Thakur and Brig. Wanchoo to
take the help of Shri Gidwani, who agreed to act as a co-ordinator to
deal with and represent the society "For the exclusive purpose of
allotment of the said plot of land to the society for welfare and housing
of Defence Personnel or Army Navy, Air Force servicemen or ex-
servicemen under the Defence Ministry or in the service or ex-service
men of para-military force, Defence Estate Organisation, Coastguards,
Military Engineering Personnel or under any of the services of the
Defence Ministry exclusively and absolutely qualified in accordance
with the bye-laws of the said society" vide para-5 of the declaration-
cum-undertaking dated 9.6.1999.
326. The assistance promised by Shri. Gidwani was however not
unconditional and unqualified. Shri Thakur and Brig. Wanchoo had to
execute a declaration cum undertaking dated 9.6.1999 in favour of Shri
Gidwani who consented to act as a coordinator and agreed to represent
the society to the concerned competent authorities of the Government of
Maharashtra for the purpose of allotment of government land for the
society. In consideration for the assistance promised by Shri Gidwani,
Shri Thakur and Brig. Wanchoo agreed that 30 flats would be placed at
the disposal of the co-ordinator. It is with this assurance given to the co-
ordinator Shri Gidwani, the society started its hunt for a suitable plot for
constructing its building.
327. After Shri Gidwani took over as coordinator, he pursued the
matter for allotment of land of subject plot by writing number of letters
to various authorities including the Chief Minister. It appears that to
overcome the obstruction of CRZ clearance, the office bearers of the
society even discussed the matter with the Secretary of MoEF, New
Delhi who advised them to approach the Government of Maharashtra for
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change of classification of the plot in C.S. No.4/600 from CRZ-I
category to CRZ-II category. After realizing that change of zone in
respect of land in C.S. No.4/600 was difficult and it would consume
further time, the society came with an alternate proposal for allotment of
the subject plot.
328. It is however material to note that till this time Adarsh Society
was pressing for allotment of land in C.S. No.4/600 admeasuring 8300
sq. mtrs. land adjacent to Oyster and Dolphin buildings in Colaba area.
On 12.3.1999 Shri P.V. Deshmukh made an application for membership
of Adarsh Society. On 03.01.2000, the society addressed a letter to Shri
Ashok Chavan, the then Minister of Revenue. Thereafter on 13.1.2000,
a letter was addressed by Shri Thakur to Shri Ashok Chavan. This was
followed by letter dated 7.2.2000 addressed by Chief Promoter to the
Chief Minister stating that "while the changing of zones may take some
time and formalities may delay the project, we have an alternative
proposal for allotment of a small block admeasuring only 3854 sq. mtrs.
of land out of Block VI of Backbay Reclamation Scheme (subject plot).
Presently this land is duly fenced with a compound wall and in physical
possession of the Local Military Authorities". It is interesting to note
that it was pointed out therein that "about 15 years back the Government
of Maharashtra had proposed to widen Cuffe Parade Road and join it to
a 60 meters wide road known as Colaba Uran Road". It was further
pointed out that "said proposal came to be dropped since the
government had banned reclamation and therefore there was no need to
widen the Cuffe Parade Road beyond BEST depot". It was therefore
suggested that "with little changes in the Development Plan which was
then still pending for approval with the UDD, the project of Adarsh
society could be cleared by allotting the subject land which was then in
possession of the Local Army Authority". Shri Vilasrao Deshmukh, the
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then Chief Minister, made following order on the said letter:
"Pri. Sec. (Rev) Pl. call for the proposal and put up
immediately.
Sd/-
19-2-2000".
329. Pursuant to this order, the Revenue and Forest Department
addressed letter dated 6.3.2000 requesting the Superintendent, Land
Records to submit a self-explanatory report in the matter along with
relevant documents within a period of ten days. In the letter dated
8.3.2000 addressed to the Chief Minister a reference was made to the
proposed widening of Cuffe Parade Road (Capt. Prakash Pethe Marg) so
as to join it to Colaba-Uran road. It was pointed out that since the
government had banned reclamation of sea, the proposal of Colaba-Uran
sea link did not materialize. It was therefore suggested that, "In view of
the above it is submitted that there is no need now to widen the Cuffe
Parade road beyond BEST depot in the Backbay as military area starts
from that point. In any case the proposal was to terminate the said
widening at the junction of Block VI and VII of the Colaba Division.
Our proposed block is exactly located at the very junction where
military area begins and there is no proposal of any such widening in the
military area and therefore with little changes in the Development Plan,
which is still pending for approval with the Ministry of Urban
Development, our project can be cleared ...." A similar prayer was made
by Shri Gidwani in his letter dated 7.8.2000.
330. By letter dated 13.3.2000, the Collector, Mumbai City directed
the Maintenance Surveyor to visit the subject plot personally, measure it
and submit the map along with his report. On 28.3.2000 the Collector,
Mumbai, City addressed a letter calling upon the Chief Promoter of the
Society to submit necessary information as prescribed in annexure "A"
and "B" thereof. The Maintenance Surveyor of the land records office
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visited the land which was shown to him by the representative of Adarsh
society on 29.3.2000, measured the same and prepared the map. On the
same day, he submitted his report wherein it was stated that said land
was plot No.87-C in Block No.VI adjacent to Backbay bus depot and
that it measured approximately 3758.82 sq. mtrs... He also pointed out
that said land was falling in the proposed road widening of Capt.
Prakash Pethe Marg in the Development Plan of MMRDA.
331. On 29.3.2000, the Collector also addressed a letter to the General
Officer Commanding (HQ), Maharashtra and Gujarat area Colaba,
pointing out therein that at the time of site inspection, it was revealed
that "The military department has constructed a wall to the above plot
and hence government land was protected from encroachment" To this
letter, an unusually prompt reply dated 5.4.2000 was given by Col. S.S.
Jog on behalf of GOC stating that, "The said land falls in Block No.VI
of Colaba Division (Backbay Reclamation Scheme-VI) which falls
outside the defence boundary. Necessary action at your end may be
taken as deemed fit for the welfare of service personnel/ex-
servicemen/their widows."
332. On 12.5.2000, the Collector submitted his report to the Principal
Secretary, Revenue and Forest Department. Since beginning it was
being represented on behalf of the Society that it was exclusively for
servicemen and ex-servicemen of defence, however, it changed its stand
so as to allow the civilians to become its members. On 2.6.2000, the
society addressed a letter to Shri Ashok Chavan, the then Minister of
Revenue setting out therein that "we are agreeable to accommodate
civilian members (members from outside defence services) in our
society to the extent of 40%. . .."
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333. On 5.6.2000, the Deputy Secretary of Revenue and Forest
Department sought information from the Collector. On 19.6.2000, the
Collector submitted his report. The draft Development Plan was
approved in two parts, first on 3.6.2000 and second on 17.3.2001. The
Adarsh society was therefore aware that the subject plot will not be
available for allotment unless and until the development plan was
suitably modified so as to reduce the width of Capt. Prakash Pethe Marg
and also to change the reservation of the road to residence. Adarsh
society was fully aware of this difficulty since beginning and addressed
various letters to Government suggesting modifying the development
plan.
334. As the MMRDA was the Planning Authority for BBRS Block III
to VI, the reduction in the proposed width of Capt. Prakash Pethe Marg
could not have been done without its approval. The UDD by its letter
dated 10.8.2000 called upon the Chief C & TP of MMRDA to submit his
report in this regard. Accordingly Shri V.K. Phatak C&TP submitted his
report on 13.9.2000 to the Principal Secretary, UDD stating that
"Apparently, the southern link i.e. Colaba-Uran link is at present not
actively pursued. Moreover as pointed out in the letter of Defence
Estate Officer dt. 23-9-1999 that in the approach road of Colaba-Uran
link High Rise buildings known as Gangotri, Bhagirathi and Choudhary
House have already been constructed. It is therefore unlikely that the
original alignment of the approach to Colaba-Uran link will continue to
be valid any more." It was however clarified in the said letter as follows
"The question of deleting the reservation of approach road to Colaba-
Uran link is however outside the jurisdiction of MMRDA as the SPA for
BBRS. However, if such a decision is arrived at and a logical
consequence of that, the road width of Prakash Pethe Marg is to be
accordingly reduced, MMRDA would have no objection to such a
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proposal. Once the width of the Prakash Pethe Marg is determined,
development of land requested by Adarsh Co-operative Housing
Society will become feasible".
335. It has come on record that Mr. P.V. Deshmukh while working as a
Joint Director, Town Planning, Mumbai had made a report dated
12.12.2000 to the Principal Secretary, UDD in connection with
reduction of the width of Capt. Prakash Pethe Marg. In that report it
was stated that spot inspection of said road made by him with shri R.C.
Thakur and suggested how to propose the width of the road could be
reduced.
336. By order dated 23.2.2001, the MMRDA was directed to initiate
the modification to the Development Plan by taking recourse to
provisions of Section 37 of the M.R.&T.P. Act. However, as MMRDA
failed to publish the requisite notice, the Government, in exercise of its
powers under Section 37(1)-A published a notice dated 3.10.2001
inviting objections and suggestions from the general public. Finally on
10.4.2002 the Government sanctioned the modification and issued
notification under Section 37 of the M.R.&T.P. Act and reduced the
width of Capt. Prakash Pethe Marg.
337. It is no doubt true that the notification dated 10.04.2002 was not
challenged by anybody and even today, it is not challenged. The fact,
however, remains that at the instance of office bearers of the Adarsh
society and in view of the assistance rendered by Shri Gidwani, the State
Government initiated proceedings under Section 37 of the M.R.&T.P.
Act. By this process, the width of the road was reduced from 60.97
mtrs. to 18.40 mtrs. While considering this aspect, the Commission has
considered issue No.3, which is to the following effect:
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"Whether the reduction of the width and the changes of the
reservation from road to residential in respect of Captain Prakash Pethe
Marg was in accordance with law?"
338. This issue was considered from paragraph 41 to 44.7. The
Commission observed that this issue relates to two things namely, (I)
reduction of width and (II) change of reservation from road to
residential. In paragraph 43.18, the Commission recorded a finding that
the reduction of the width of Captain Prakash Pethe Marg was not at all
in public interest and it was meant to subserve the interest of the private
society. The considerations of traffic congestion and security operations
of army during exigent time were totally ignored. Moreover, the
modification in the final Development Plan in that regard was not made
in accordance with the provisions of Section 37(1) of M.R.&T.P. Act as
no notice was given to Minister of Defence which is an affected party by
the said modification pertaining to reduction in the width.
339. In paragraph 44.6, the Commission recorded that reduction in
width of Captain Prakash Pethe Marg and inclusion in residential zone
would obviously amount to change of user i.e. from 'no use' to
'residential use' and the said change of reservation could not have been
done without CRZ clearance. At that time, MCZMA was duly
constituted and was in existence and its recommendations were required
to be taken. At no stage, UDD considered it necessary to consult the
Department of Environment even though so enjoined by R & FD
resolutions. Ultimately, in paragraph 44.7, Commission recorded that
the reduction of the proposed width and change of reservation from road
to residential in respect of Capt. Prakash Pethe Marg was not in
accordance with the provisions of the M.R.&T.P. Act and it was illegal
and mala fide.
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340. As noted earlier on 18.1.2003, LOI was issued. On 9.7.2004 the
Government issued LOA and the possession of the subject plot was
handed over on 4.10.2004. The society even before issuing the LOI on
18.1.2003 started corresponding with the State Government for
additional FSI in respect of an adjoining BEST plot. The earliest letter
is dated 7.1.2002 addressed by Shri Kanhaiyalal Gidwani to the
Principal Secretary, UDD wherein he stated that "Meanwhile I have
received a letter dated 20-10-2001 and letter dated 26-12-2001 from
proposed Adarsh Co-op. Housing Society, Colaba with request of
adjoining FSI/opening for the Military Officer's Co-operative Housing
Society ......". Letter dated 20.10.2001 was addressed by the Chief
Promoter, Shri R.C. Thakur to the Principal Secretary wherein he wrote
"It will be desirable to give access to this plot from north side also, it
being a narrow plot. The access to BEST plot should be part of D.P.
Road. This will enable us to have side access to our plot. The width of
this road approximately to the BEST should be 15 mtrs. and the society
plot should be extended to this road. This will enable us to use the
available land/FSI .....". Letter dated 26.12.2001 was addressed by Shri
R.C. Thakur to the Principal Secretary, UDD to consider the request for
allowing and opening towards BEST approach road and also because of
the narrow size of the proposed plot of the society.
341. On 17.3.2003 Shri Thakur addressed a letter to Shri Sunil Tatkare,
Minister of State for UDD, thanking him for allotment of subject plot
and requested for grant of additional FSI. He wrote, "because of number
of members of the society having gone up to 71 which has been
approved by the Government of Maharashtra, department of Revenue,
we are finding it difficult in allotting the residential flats to all of them
as the plot is small in size. To overcome the said problem we propose to
avail FSI of the area adjacent to our plot which is available for allotment
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by government as shown in the site plan - Annexed X". Another letter
of same date was addressed to Shri Sushilkumar Shinde, the then Chief
Minister by said Shri Thakur wherein he wrote, "...... That our society
may be permitted to avail FSI of the plot marked as B on the enclosed
plan which is 2669.68 sq. mtr. situated adjoining to our plot on payment
of reasonable charges as may be levied by the government. We
undertake to keep the land as it is and also submit herewith our no
objection to BEST for using the same as approach road to their bus
depot....."
342. It has come on record that by letter dated 6.1.2004, Shri Sunil
Tatkare, Minister of State for UDD informed Shri Gidwani that said land
was reserved for BEST depot in the BBRS and therefore it was not
permissible under the provisions of the DCR to use the FSI of that land
on the adjoining land. Despite this, Adarsh society did not give up their
efforts to secure additional FSI in respect of the BEST plot for using the
same on subject plot which was proposed to be granted to the society as
per LOI dated 18.1.2003.
343. On 13.7.2004 Shri Gidwani wrote a letter to Shri Sushilkumar
Shinde requesting him to call for a meeting of the concerned officers at
the earliest to consider the request for additional FSI as by that time
subject plot was allotted to the society as per LOA dated 9.7.2004. it
was stated in the letter that "This extra FSI will greatly help the society
to house the members of the society who are mostly service personnel.
Also I will like to draw your kind attention to the fact that the
Government of Maharashtra will be generating revenue from this FSI
without losing the current status being the BEST's continuation of use of
the land."
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344. It appears that on the same day i.e. on 14.7.2004 a meeting was
convened in the Chamber of the Minister of State for UDD for
considering grant of additional FSI to Adarsh society. Said meeting was
attended by AGM(c), BEST, Dy. Superintendent (Est), BEST, State
Government's officers in UDD, Revenue, Collector and Shri Gidwani.
The minutes of the meeting show that Shri Gidwani stated that as per the
directives 71 members were required to be accommodated in the society
but the FSI of the land of the subject plot was insufficient to
accommodate them and, therefore, additional FSI of adjoining plot of
land owned by Government of Maharashtra which was being used as an
access by the BEST was required. The minutes further show that Shri
Ramanand Tiwari, Principal Secretary, UDD expressed his view that it
was not feasible to allot the FSI of the adjoining plot to the society and
for that purpose the society would have to approach the State
Government for allotment of the said land by deleting the reservation of
BEST bus depot by following due process of law under Section 37 of
the M.R.&T.P. Act. This procedural period would be of at least six
months. It appears that the Minister and other officials agreed for the
same and the meeting was concluded.
345. It appears that UDD made a reference to the BEST and called for
its specific comments on the proposal of allotting additional FSI of the
BEST plot to Adarsh society. On 7.12.2004 the Assistant General
Manager prepared note recording his views in the following words,
"We have examined the proposal and it is felt that we may differ with
the Principal Secretary, Urban Development's above views expressed by
him in the meeting held on 14.7.2004 i.e. deleting the reservation of
BEST depot and then allot the land to the society. In view of the above
it is felt that the subjected plot/land should be out of the purview of any
reservation and allotment and shall be retained as an exclusive access to
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the BEST bus depot."
346. On 29.12.2004, a meeting was convened at the residence of Shri
Rajesh Tope, the Minister of State for UDD at Nagpur. The minutes of
said meeting show that it was clarified to the Hon'ble Minister that as far
as BEST was concerned, it would not grant NOC for de-reservation of
land as suggested by Shri Ramanand Tiwari, Principal Secretary, UDD.
This meeting was attended by Assistant General Manager of BEST. On
11.1.2005, Shri Tayshetye the Asstt. General Manager of the BEST put
up a note before the General Manager observing, "As regards the issue
of allotting FSI of the said plot to Adarsh society, it is felt that we may
convey to the State Government that it may decide on the request made
by Adarsh Society to allow them to utilize the FSI of the subjected plot.
However, while doing so the Undertaking's interest shall be fully
protected by maintaining the present status of the access to the BEST
bus in perpetuity without any encroachment on the said land." This note
was approved by the General Manager on 12.1.2005. On the same day,
by letter dated 12.1.2005 Shri Tayshetye informed the UDD that the land
was being used as an approach road by the BEST buses as an
easementary right and that in future also the same user will be required.
It was therefore suggested that maintaining the status of the access road
of 44.40 meters and keeping the interest of the BEST unaffected, the
government may take appropriate decision on the request made by
Adarsh Society.
347. It appears that correspondence was thereafter exchanged. On
5.8.2005 memorandum was issued in favour of the society granting
additional FSI of BEST though subject to conditions enumerated
therein. On 16.1.2006 a note was put up by UDD for changing the zone
of the BEST plot and it was suggested that instead of following the
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procedure under Section 37 of the M.R.&T.P. Act, recourse could be had
to the provisions of Section 50 of the said Act which contemplate
deletion of reservation of designated land for interim draft of final
Development Plan because the land was no longer required for public
purpose for which it was designated or reserved. This note was
approved by Shri Ramanand Tiwari, Principal Secretary, UDD on
17.1.2006 and was further approved by Shri Vilasrao Deshmukh, the
then Chief Minister. On 3.3.2006 notification under Section 50 of the
M.R.&T.P. Act was accordingly issued. In paragraph 46.10, the
Commission concluded that the deletion of the plot reserved for BEST
and its conversion to residential purpose for allotment to Adarsh society
was not in accordance with law, particularly as per Section 50 of
M.R.&T.P. Act.
348. Thus, the above narration will show two things. Initially, the
Adarsh Society demanded land in C.S.No.4/600 admeasuring about
8300 sq.mtrs. For that purpose, correspondence was made right from
1994 till 1999. It is only thereafter Mr. Deshmukh made application for
membership on 12.03.1999, the Society changed its stand and started
addressing letters from 03.01.2000 for allotment of the subject plot. The
Society also made suggestions to the State Government to modify the
Development Plan. Prima facie, we are satisfied that the change in the
stand was not innocuous and it is evident that the petitioners got
information relating to Development Plan, and therefore, suggested to
reduce the width of Captain Prakash Pethe Marg on the basis of the
information shared by Mr. P. V. Deshmukh, who was working in UDD,
with the members of the Society.
349. That apart, earlier the stand of the Government was to follow
Section 37 of the M.R.&T.P. Act for changing reservation of BEST plot
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to residential use. However, this stand was changed at the behest of Mr.
Ramanand Tiwari, Principal Secretary, UDD who suggested to invoke
Section 50 of the M.R.&T.P. Act. The purpose was obvious. Section 37
of the M.R.&T.P. Act requires inviting objections and suggestions as
also giving hearing to the parties concerned. However, that is not the
requirement under Section 50 of the M.R.&T.P. Act.
350. We have held that Mr. P. V. Deshmukh had no authority to
address a communication dated 05.10.2002 to MOEF seeking
environmental clearance for various reasons namely, (i) at the relevant
time, LOI was not issued, (ii) letter of allotment was also not issued, (iii)
the Society was also not registered, (iv) under the Rules of Business of
the State Government, it was the Environment Department, who was
designated authority for dealing with the proposals seeking
environmental clearance.
351. It has come on record of the J. A . Patil Commission that highly
placed bureaucrats were involved in dealing with the file of Adarsh
Society in one capacity or other. Mr. P. V. Deshmukh made application
for membership on 12.03.1999. Mr. Deshmukh was allotted flat
No.1201 in 'A' Wing having 1076 sq.ft. carpet area. In his capacity as
Deputy Director, Town Planning, Mumbai, he had submitted a report
dated 12.12.2000 to the Principal Secretary, UDD in connection with the
reduction of width of Captain Prakash Pethe Marg. In the said report, he
stated about the spot inspection of the said road made by him with Shri
R. C. Thakur and suggested how the proposed width of the road could
be reduced. The Commission also dealt with letter dated 05.10.2002
addressed by him in his capacity as Deputy Secretary of UDD to the
Secretary, MOEF and letter dated 15.03.2003 addressed by him to the
Chief Engineer (DP) of Corporation. In paragraph 66.2 of the report,
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the Commission remarked that by letter dated 15.03.2003, Mr.
Deshmukh virtually communicated grant of CRZ clearance to Adarsh
Society when actually there was none. In paragraph 66.3, it was
observed "it will be thus seen that proposal of Mr. Deshmukh's name as
a member of Adarsh Society clearly related to the clearance to the
Adarsh Society and these events cannot be looked into in isolation and
have to be considered as quid pro quo.
352. In paragraph 72.31, the Commission observed that "the height of
his dishonesty is obvious when he wrote a letter dated 15.03.2003 to the
Chief Engineer (DP), Corporation informing that MOEF had
communicated their no objection to allow the residential development to
the Adarsh Society. This act of delinquency on the part of Mr.
Deshmukh falls under Rule 3(1) of the Maharashtra Civil Services
(Conduct) Rules, 1979 as he failed to maintain absolute integrity and
devotion to his duty. The said act is certainly unbecoming of a
Government servant. We have already held that Mr. P. V. Deshmukh
had no authority to address this communication. In our opinion, this
communication was the starting point of the controversy and was
mischievously addressed by Mr. P. V. Deshmukh to MOEF knowing
fully well that at the relevant time, Department of Environment of the
State Government was the appropriate authority to grant environmental
clearance.
353. The Commission also dealt with role of Mr. Ramanand Tiwari,
who was at the relevant time, Principal Secretary of UDD. Mr. Tiwari's
son Omkar applied for membership on 04.05.2006. He was enrolled as
member on 12.05.2008 and was allotted flat No.2002 having carpet area
of 620 sq.ft. in 'A' Wing. In paragraphs 67 and 67.1, the Commission
dealt with evidence of Mr. Tiwari. In paragraph 7 of his evidence, he
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admitted that he dealt with the file regarding Captain Prakash Pethe
Marg between 26.02.2002 and 10.04.2002 and he was responsible for
recommending the reduction in the width of Captain Prakash Pethe
Marg, which ultimately resulted in creation of a plot that could be
allotted to Adarsh Society. He had opportunity to deal with the file of
Adarsh Society while considering the grant of additional FSI in respect
of BEST plot. Initially, he had suggested for deletion of the reservation
of the BEST plot and its conversion to residential use by following
procedure under Section 37(1) of the M.R.&T.P. Act. But later on, he
changed his stand and suggested that instead of Section 37(1), the
recourse could be had to Section 50 of the M.R.&T.P. Act, which was a
short-cut method. He further confirmed that the letter dated 15.03.2003
addressed by Mr. P. V. Deshmukh was written at his instance. The
Commission, therefore, observed that Mr. Ramanand Tiwari played an
important role in granting clearances to the Adarsh Society while he was
Secretary of UDD. Thereafter, the name of his son Omkar Tiwari came
to be proposed for Adarsh Society. The Commission, therefore,
observed that there is no alternative except the drawing of a conclusion
that there was a quid pro quo between the clearances given by Mr.
Ramanad Tiwari and the grant of membership of Adarsh Society to his
son Omkar Tiwari. We are of the opinion that the stand is deliberately
changed as procedure under Section 37 contemplates inviting objections
and suggestions as also giving hearing to the affected persons. As
against this, Section 50 does not contemplate inviting objection,
suggestions as also giving hearing to the affected persons.
354. In paragraphs 72.13 and 72.14, the Commission noted that "Mr.
Ramanand Tiwari deliberately committed omission as regards the
expression 'existing FSI / FAR norms' in 1991 Notification." Dr. A.
Senthil Vel addressed a letter dated 18.08.2006 to the Principal
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Secretary, UDD clarifying that all development activities proposed to be
taken up in the CRZ area have to follow the norms as existed on 1991
including FSI / FAR norms. It was further explained that the word
'existing' has been interpreted by the Ministry by its letter dated
08.09.1998 as prevalent on 19.02.1991. The letter further stated that "in
view of the above clarifications, the DCR which was under
implementation on 19.02.1991 i.e. the approved DCR of 1967 shall be
considered and not the draft of 1989 which came into force on
20.02.1991 as it was still in the draft stage on 19.02.1991. It was
absolutely necessary on the part of Mr. Ramanand Tiwari to have
brought this clarification to the notice of the MMRDA, which was then
dealing with the question of approving the plans and construction work
of the Adarsh Society. However, since Mr. Ramanand Tiwari himself
was very much interested in the Adarsh Society, he did not think it
necessary to bring this clarification to the notice of the MMRDA as that
would have affected the approval of plans of the Adarsh Society. This
was obviously an act of dishonesty and selfishness on the part of Mr.
Ramanand Tiwari, which exposes lack of absolute integrity and
devotion on his part. Not only that, but his act of suppressing this
material clarification regarding applicability of FSI in CRZ-II area was
unbecoming of a member of the service." In paragraph 72.15, the
Commission ultimately recorded that Mr. Ramanand Tiwari violated the
provisions of Rule 3, 4(3)(a), 14(2) and 16(2) of the AIS Rules.
355. It has also come on record that Dr. Pradeep Vyas was the
Collector of Mumbai from 28.08.2002 to 26.05.2005 and the letter of
allotment was issued on 09.07.2004. His wife Ms Seema Vyas, IAS was
working as Deputy Secretary in Rural Development Department and
thereafter in General Administration Department. She applied for
membership on 10.11.2004. In paragraph 65.4 of the report, the
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Commission recorded that Dr. Pradeep Vyas obliged the Adarsh Society
by his forbearance in imposing such conditions on Society as a Collector
might think proper. It was noted that there were hundreds of standing
trees in the Khukri garden which was located on the subject plot. The
construction work could not have been undertaken unless and until those
trees were felled with the previous permission of Tree Authority of the
Corporation. However, Dr. Vyas did not put any such condition on the
Adarsh Society. The result was that the standing trees on the subject
plot were felled by the Adarsh Society without obtaining prior
permission of the Tree Authority.
356. It has also come on record that Kanishka Pathak, son of Dr. Jayraj
Phatak made application dated 07.06.2003 for membership of Adarsh
Society. He was granted membership in August 2004 and allotment of
flat No.1802 having carpet area of 650 sq.ft. in 'A' Wing was made to
him in July 2009. In paragraphs 68 to 68.2 of J. A. Patil's Commission
report, it is noted that Dr. Jayraj Phatak became Municipal
Commissioner of Corporation in 2007. He dealt with file of Adarsh
Society in the year 2009 in connection with the height of the Adarsh
building. In paragraph 52.8 of the report, the question of regularizing
the unauthorized construction of 28th floor by Adarsh society came up
before Dr. Jayraj Phatak when the Chief Engineer, DP of the
Corporation had put up a note dated 20.10.2009. Dr. Phatak made the
following remark in his own handwriting below the said note to the
effect, "In view of the portion marked 'X' on page 1, there is no need to
obtain NOC from High Rise Committee. However, the appropriate
authority's i.e. MMRDA's approval may be obtained." In paragraph
68.2, the Commission recorded that there was quid pro quo as far as Dr.
Jayraj Phatak was concerned.
357. As far as Dr. Devayani Khobragade is concerned, the issue
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whether she is eligible to be a member of Adarsh Society was
considered by the Commission in paragraphs 56.61 to 56.64. It was
noted that Shri Uttam Khobragade, who was the General Manager of
BEST stated in his affidavit dated 28.02.2011 that application form
dated 29.06.2004 for membership of Adarsh Society was filled in and
signed by him on his daughter's behalf. She was allotted flat No.2301
admeasuring 1076 sq.ft. in 'A' Wing. After considering the evidence on
record, the Commission recorded that Dr. Devayani Khobragade was
ineligible for becoming member of Adarsh Society on account of breach
of eligibility condition mentioned in clauses (4) and (5) of Annexure-A
to the Government Resolution dated 25.05.2007. In paragraph 72.17 of
the report, the Commission recorded that there is nothing on record to
show that Shri Uttam Khobragade had, at any point of time, occasion to
handle the file of Adarsh Society. It cannot be said that he violated any
rules of AIS Rules. Mr. Uttam Khobragade was General Manager of
BEST from 28.06.2006 to 20.05.2010. He could have pursued the
request made by BEST on 17.05.2000 for changing designation from
BEST Bus Depot to BEST Depot and Housing. We are, prima facie, of
the opinion that this will not rule out the quid pro quo qua Shri Uttam
Khobragade as his daughter was made member. We are not recording
any conclusive finding for want of material.
358. The Commission dealt with role of Mr. Ashok Chavan, the then
Chief Minister of Maharashtra. The close relatives of Mr. Ashok
Chavan were granted membership of Adarsh Society. They are- (1) Ms
Seema Vinod Sharma. Her husband Mr. Vinod Sharma is brother of Ms
Amita Chavan, wife of Mr. Ashok Chavan. She made application for
membership on 18.06.2004 and she was allotted flat No.1202 having
carpet area of 650 sq.ft. in 'A' Wing; (2) Mr. Madanlal Milkhiram
Sharma, is the brother of Mr. Manoharlal Sharma, father-in-law of Mr.
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Ashok Chavan. He made application for membership on 13.08.2009 and
was allotted flat No.1203 having carpet area of 650 sq.ft. in 'B' Wing;
and (3) Ms Bhagwati Sharma who died on 15.07.2010 was the mother-
in-law of of Mr. Ashok Chavan. She made application for membership
on 13.08.2009 and was allotted flat No.1204 having carpet area of 650
sq.ft. in 'B' Wing.
359. The role of Mr. Ashok Chavan was discussed in detail from
paragraphs 69 to 69.11. In paragraph 69.2, the Commission observed
that the decision of reducing the width of Captain Prakash Pethe Marg
was not legal and was not in public interest and the said decision, which
was taken both by Mr. Ashok Chavan as the Revenue Minister and Mr.
Vilasrao Deshmukh as the Chief Minister, obliged the Adarsh Society.
In paragraph 69.3, the Commission dealt with noting dated 02.06.2009
signed by Mr. Ashok Chavan in his capacity as the Chief Minister. The
said noting was in connection with exclusion of 15% Recreation Ground
from the subject plot. He was also holding the portfolio of UDD.
Because of this, the Adarsh Society was considerably benefited, which
resulted in grant of additional FSI of 15% of the subject plot, which is
equivalent to 563 sq.mtrs. (15% of 3758.22 sq.mtrs.). Ultimately, in
paragraph 69.11, the Commission recorded that Mr. Ashok Chavan had
given clearance / permissions in the matter of Adarsh Society as quid
pro quo.
360. The Commission also dealt with the role of Mr. Vilasrao
Deshmukh from paragraphs 75 to 75.6 and observed that the decisions
to issue Letter of Intent in respect of subject plot to Adarsh Society and
further granting additional FSI of BEST plot approved by Mr. Vilasrao
Deshmukh as the Chief Minister were not proper and justifiable and that
they were not in public interest. From paragraph 76 to 76.8, the
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Commission dealt with the role of Mr. Sushilkumar Shinde, who was the
Chief Minister from 18.01.2003 to 01.11.2004 and Minister Shivajirao
Nilengekar Patil, Revenue Minister from 25.01.2003 to 06.07.2004. In
paragraph 76.8, the Commission opined that undue haste was shown by
Mr. Nilengekar Patil by approving the subject plot to Adarsh Society
without authority. Mr. Sushilkumar Shinde failed to pay due attention to
the suggestion made by the Finance Department. It was further
observed that "the least that we can say is that the entire issue smacks of
undue haste and desire to bestow benefit to the society".
361. The Commission also dealt with the role of Mr. Sunil Tatkare,
Minister for Water Resources and Mr. Rajesh Tope, Minister for Higher
and Technical Education in paragraphs 77 and 77.1. In paragraph 77,
the Commission expressed its displeasure at the conduct of both these
Ministers who tried to meddle with the issue of Adarsh Society when it
was not within the purview of the distribution of their work.
362. The Government swiftly moved and took steps for reduction of
width of Captain Prakash Pethe Marg so as to carve out a residential
plot. If at all, Government was satisfied that it was in public interest to
reduce width of Captain Prakash Pethe Marg from 60.97 mtrs to 18.40
mtrs., after reducing the width of the roa, the remaining plot could have
been either merged in BEST depot or Government could have acceded
to the request made by BEST for converting BEST depot reservation to
BEST depot and housing. That apart, even if after reducing the width of
road, the residential plot was carved out, in our opinion, Government
could not have allotted plot directly to Adarsh Society. We have noted
earlier that on 17.05.2000, request was made on behalf of the BEST for
designating the bus depot plot from "Bus Depot" to "BEST Bus Depot
and Housing" to enable BEST to make use of the said bus depot plot
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also for its officers' quarters. This was replied by the Under Secretary,
UDD on 29.11.2003 wherein it was stated that bus depot land is
included in CRZ-II and existing road from sea side is affected by high
tide level and that, there is no existing building adjacent to plot No.87-
C. The said letter also stated that as per clarification dated 08.09.1998
given by MOEF, any construction affecting high tide level would not be
permissible and therefore, request made by Assistant General Manager
(Civil), BEST cannot be acceded to. However, as far as the petitioners
are concerned, the State Government readily accepted their request and
allotted the subject plot. We are more than satisfied that petitioners have
virtually hijacked the subject plot by treating the same as if it is their
private property. The Bureaucrats, the Ministers and the concerned
Politicians misused / abused the power as also their position.
363. So far we have come across cases where people by using
money / muscle power as also political influence try to secure allotment
of land. This case goes one step further. Though the plot was not
available, Adarsh society proposed reduction of Captain Prakash Pethe
Marg from 60.97 mtrs. to 18.40 mtrs. The request made by Adarsh
Society was readily accepted by the State Government, though the
Planning Authority namely MMRDA declined to initiate proceedings
under Section 37(1) of the M.R. & T.P. Act. The area so deleted was
partly included in residential zone and was allotted to Adarsh Society
without following due process of law.
364. In the case of CIDCO Vs. Platinum Entertainment83, the Apex
Court was dealing with allotment of land by CIDCO to the respondent
for erecting entertainment complex. The Apex Court was considering
whether there was transparency maintained by CIDCO in making these
allotments of Government land. In paragraph 37, the Apex Court
83 (2015) 1 SCC 558
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observed that it is well settled that whenever the Government deals with
the public by entering into a contract or issuance of licence or granting
other forms of largesse, the Government cannot act arbitrarily on its
sweet will but must act in accordance with law and the action of the
Government should not give the smack of arbitrariness. The Apex Court
quoted its earlier decision in Raman Dayaram Shetty vs. International
Airport Authority of India & Ors., (1979) 3 SCC 489 and extracted
paragraph 12 thereof, which reads as under:
"12. ... It must, therefore, be taken to be the law that where
the Government is dealing with the public, whether by way
of giving jobs or entering into contracts or issuing quotas or
licences or granting other forms of largesse, the
Government cannot act arbitrarily at its sweet will and,
like a private individual, deal with any person it pleases,
but its action must be in conformity with standard or
norms which is not arbitrary, irrational or irrelevant.
The power or discretion of the Government in the matter
of grant of largesse including award of jobs, contracts,
quotas, licences, etc. must be confined and structured by
rational, relevant and non-discriminatory standard or
norm and if the Government departs from such standard
or norm in any particular case or cases, the action of the
Government would be liable to be struck down, unless it
can be shown by the Government that the departure was
not arbitrary, but was based on some valid principle
which in itself was not irrational, unreasonable or
discriminatory."
(emphasis supplied)
365. In that case, Regulation 4 framed by CIDCO was pressed into
service. Regulation 4 conferred an authority to CIDCO to dispose of
plots of land by public auction or by tender or by considering
individual applications as the Corporation would determine from time
to time. It was observed that although CIDCO had the power to allot the
land in any one of the manners stated in Rule 4, but the conduct of such
allotment should have been more clear and transparent and without
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presence of any element of favouritism and/or nepotism and without
being influenced by any such thing in exercising the discretion
conferred upon it.
366. In paragraph 54, the Apex Court observed that notwithstanding
Regulation 4, as contained in the Regulations, the CIDCO may take all
endeavour to make allotments of plots by open tender or competing bids
and shall not take any decision for allotment of Government land for
any purposes whatsoever.
367. The Apex Court also considered decision of Akhil Bhartiya
Upbhokta Congress Vs. State of Madhya Pradesh, (2011) 5 SCC 29 and
extracted paragraphs 65 and 66, which read thus,
"65. What needs to be emphasised is that the State and/or its
agencies/instrumentalities cannot give largesse to any person
according to the sweet will and whims of the political entities
and/or officers of the State. Every action/decision of the State
and/or its agencies/instrumentalities to give largesse or confer
benefit must be founded on a sound, transparent, discernible
and well-defined policy, which shall be made known to the
public by publication in the Official Gazette and other
recognised modes of publicity and such policy must be
implemented/executed by adopting a non-discriminatory and
non-arbitrary method irrespective of the class or category of
persons proposed to be benefited by the policy. The
distribution of largesse like allotment of land, grant of quota,
permit licence, etc. by the State and its
agencies/instrumentalities should always be done in a fair and
equitable manner and the element of favouritism or nepotism
shall not influence the exercise of discretion, if any, conferred
upon the particular functionary or officer of the State.
66. We may add that there cannot be any policy, much less, a
rational policy of allotting land on the basis of applications
made by individuals, bodies, organisations or institutions
dehors an invitation or advertisement by the State or its
agency / instrumentality. By entertaining applications made
by individuals, organisations or institutions for allotment of
land or for grant of any other type of largesse the State cannot
exclude other eligible persons from lodging competing claim.
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Any allotment of land or grant of other form of largesse by the
State or its agencies/instrumentalities by treating the exercise
as a private venture is liable to be treated as arbitrary,
discriminatory and an act of favouritism and/or nepotism
violating the soul of the equality clause embodied in Article 14
of the Constitution.
(emphasis supplied)"
368. The Apex Court also referred to the decision of Kasturi Lal
Lakshmi Reddy Vs. State of Jammu & Kashmir, (1980) 4 SCC 1 and
extracted paragraphs 14 and 15, which are to the following effect:
"14. Where any governmental action fails to satisfy the test of
reasonableness and public interest discussed above and is found
to be wanting in the quality of reasonableness or lacking in the
element of public interest, it would be liable to be struck down as
invalid. It must follow as a necessary corollary from this
proposition that the Government cannot act in a manner which
would benefit a private party at the cost of the State; such an
action would be both unreasonable and contrary to public
interest. The Government, therefore, cannot, for example, give a
contract or sell or lease out its property for a consideration less
than the highest that can be obtained for it, unless of course there
are other considerations which render it reasonable and in public
interest to do so. Such considerations may be that some directive
principle is sought to be advanced or implemented or that the
contract or the property is given not with a view to earning
revenue but for the purpose of carrying out a welfare scheme for
the benefit of a particular group or section of people deserving it
or that the person who has offered a higher consideration is not
otherwise fit to be given the contract or the property. We have
referred to these considerations only illustratively, for there may
be an infinite variety of considerations which may have to be
taken into account by the Government in formulating its policies
and it is on a total evaluation of various considerations which
have weighed with the Government in taking a particular action,
that the court would have to decide whether the action of the
Government is reasonable and in public interest. But one basic
principle which must guide the court in arriving at its
determination on this question is that there is always a
presumption that the governmental action is reasonable and in
public interest and it is for the party challenging its validity to
show that it is wanting in reasonableness or is not informed with
public interest. This burden is a heavy one and it has to be
discharged to the satisfaction of the court by proper and adequate
material. The court cannot lightly assume that the action taken by
the Government is unreasonable or without public interest
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because, as we said above, there are a large number of policy
considerations which must necessarily weigh with the
Government in taking action and therefore the court would not
strike down governmental action as invalid on this ground, unless
it is clearly satisfied that the action is unreasonable or not in
public interest. But where it is so satisfied, it would be the
plainest duty of the court under the Constitution to invalidate the
governmental action. This is one of the most important functions
of the court and also one of the most essential for preservation of
the rule of law. It is imperative in a democracy governed by the
rule of law that governmental action must be kept within the
limits of the law and if there is any transgression, the court must
be ready to condemn it. It is a matter of historical experience that
there is a tendency in every Government to assume more and
more powers and since it is not an uncommon phenomenon in
some countries that the legislative check is getting diluted, it is
left to the court as the only other reviewing authority under the
Constitution to be increasingly vigilant to ensure observance with
the rule of law and in this task, the court must not flinch or falter.
It may be pointed out that this ground of invalidity, namely, that
the governmental action is unreasonable or [pic] lacking in the
quality of public interest, is different from that of mala fides
though it may, in a given case, furnish evidence of mala fides.
15. The second limitation on the discretion of the Government in
grant of largess is in regard to the persons to whom such largess
may be granted. It is now well settled as a result of the decision
of this Court in Ramana D. Shetty v. International Airport
Authority of India that the Government is not free, like an
ordinary individual, in selecting the recipients for its largess and
it cannot choose to deal with any person it pleases in its absolute
and unfettered discretion. The law is now well-established that
the Government need not deal with anyone, but if it does so, it
must do so fairly without discrimination and without unfair
procedure. Where the Government is dealing with the public
whether by way of giving jobs or entering into contracts or
granting other forms of largess, the Government cannot act
arbitrarily at its sweet will and, like a private individual, deal
with any person it pleases, but its action must be in conformity
with some standard or norm which is not arbitrary, irrational or
irrelevant. The governmental action must not be arbitrary or
capricious, but must be based on some principle which meets the
test of reason and relevance. This rule was enunciated by the
court as a rule of administrative law and it was also validated by
the court as an emanation flowing directly from the doctrine of
equality embodied in Article 14. The court referred to the activist
magnitude of Article 14 as evolved in E.P. Royappa v. State of
Tamil Nadu and Maneka Gandhi case, (1978) 1 SCC 248 and
observed that it must follow as a necessary corollary from the
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principle of equality enshrined in Article 14 that though the State
is entitled to refuse to enter into relationship with anyone, yet if it
does so, it cannot arbitrarily choose any person it likes for
entering into such relationship and discriminate between persons
similarly circumstanced, but it must act in conformity with some
standard or principle which meets that test of reasonableness and
non- discrimination and any departure from such standard or
principle would be invalid unless it can be supported or justified
on some rational and non- discriminatory ground.
This decision has reaffirmed the principle of reasonableness and
non- arbitrariness in governmental action which lies at the core of
our entire constitutional scheme and structure."
369. The Apex Court also considered decision in Centre for Public
Interest Litigation vs. Union of India, (2012) 3 SCC 1 and extracted
paragraphs 75 and 80 which read thus,
"75. The State is empowered to distribute natural resources.
However, as they constitute public property/national asset, while
distributing natural resources the State is bound to act in
consonance with the principles of equality and public trust and
ensure that no action is taken which may be detrimental to public
interest. Like any other State action, constitutionalism must be
reflected at every stage of the distribution of natural resources. In
Article 39(b) of the Constitution it has been provided that the
ownership and control of the material resources of the community
should be so distributed so as to best subserve the common good,
but no comprehensive legislation has been enacted to generally
define natural resources and a framework for their protection. Of
course, environment laws enacted by Parliament and State
Legislatures deal with specific natural resources i.e. forest, air,
water, coastal zones, etc.
80. In Jamshed Hormusji Wadia, (2004) 3 SCC 214 case, this
Court held that the State's actions and the actions of its
agencies/instrumentalities must be for the public good, achieving
the objects for which they exist and should not be arbitrary or
capricious. In the field of contracts, the State and its
instrumentalities should design their activities in a manner which
would ensure competition and non-discrimination. They can
augment their resources but the object should be to serve the
public cause and to do public good by resorting to fair and
reasonable methods."
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370. Ultimately, in paragraph 49, it was observed thus,
"49. State and its agencies and instrumentalities cannot give
largesse to any person at sweet will and whims of the political
entities or officers of the State. However, decisions and action of
the State must be founded on a sound, transparent and well
defined policy which shall be made known to the public. The
disposal of Government land by adopting a discriminatory and
arbitrary method shall always be avoided and it should be done in
a fair and equitable manner as the allotment on favoritism or
nepotism influences the exercises of discretion. Even assuming
that if the Rule or Regulation prescribes the mode of allotment by
entertaining individual application or by tenders or competitive
bidding, the Rule of Law requires publicity to be given before
such allotment is made. CIDCO authorities should not adopt pick
and choose method while allotting the Government land."
371. In paragraph 53, the Apex Court referred to case of Humanity Vs.
State of West Bengal, (2011) 6 SCC 125, wherein it was held thus,
"It is axiomatic that in order to achieve a bona fide end, the means
must also justify the end. This Court is of the opinion that bona fide
ends cannot be achieved by questionable means, specially when the
State is involved. This Court has not been able to get any answer
from the State why on a request by the allottee to the Hon'ble
Minister for Urban Development, the Government granted the
allotment with remarkable speed and without considering all aspects
of the matter. This Court does not find any legitimacy in the action of
the Government, which has to act within the discipline of the
constitutional law, explained by this Court in a catena of cases. We
are sorry to hold that in making the impugned allotment in favour of
the allottee, in the facts and circumstances of the case, the State has
failed to discharge its constitutional role."
372. The decisions referred in paragraphs 342, 345, 346, 347 and 349
apply on all fours to the present case. In the case of Humanity (supra),
the Apex Court has held that it is axiomatic that in order to achieve a
bona fide end, the means must also justify the end. In the present case,
it cannot be said that petitioners achieved bonafide ends. At the same
time, the means adopted by the petitioners are highly questionable. It
has come on record that the Assistant General Manager (Civil), BEST
submitted the internal note dated 29.12.2004 to the General Manager,
BEST. In that note, reference was made for following procedure under
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Section 37 of the M.R.&T.P. Act. It was clarified that BEST
Undertaking will not grant NOC for de-reservation of land as suggested
by Mr. Ramanand Tiwari, Principal Secretary, UDD. During the course
of evidence before J. A. Patil's Commission, he admitted that he dealt
with the file of Adarsh Society between 26.02.2002 and 10.04.2002 and
that he was responsible for recommending the reduction of width of
Captain Prakash Pethe Marg. Initially, he had suggested to follow the
procedure under Section 37(1) of the M.R.&T.P. Act for deleting the
reservation of BEST plot and its conversion to residential use. We are of
the opinion that he changed his stand and suggested that instead of
following procedure under Section 37(1), the procedure under Section
50 of the M.R.&T.P. Act be followed and accordingly, Notification dated
03.03.2006 was issued under Section 50 of the M.R.&T.P. Act.
373. In our opinion, members of Adarsh society to say the least
conspired together for allotment of subject plot, which was not in
existence and successfully carved out residential plot which was falling
in the development plan road. The members of the society are close
relatives of highly placed bureaucrats as also near relatives of either
politicians or ministers. In the present case, we are more than satisfied
that the allotment was not made in a transparent manner and it clearly
smacks out favoritism and / or nepotism. The greedy person is always
looking after opportunities to secure unfair advantage by hook or crook.
It is said that every greedy person is a criminal and every criminal is a
greedy person. At every stage, petitioners have acted contrary to
provisions of law, be that (I) reduction of width of Captain Prakash
Pethe Marg, (II) not obtaining environmental clearance and in fact
coming with the case that the environmental clearance is not necessary
and alternatively coming with the case that the communications dated
11.03.2003 and 15.03.2003 constituted environmental clearance; (III)
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not complying with the conditions stipulated in- (i) LoI dated
18.01.2003 (condition No.7), (ii) letter of allotment dated 09.07.2004
(condition No.2), (iii) memorandum dated 05.08.2005 (conditions No.2
and 4) as also (iv) compelling or inducing State Government to invoke
Section 50 of the M.R.&T.P. Act when appropriate authority did not
even apply for deletion of reservation. It has also come on record before
Justice J. A. Patil's Commission that in 22 cases of purchase of flats in
Adarsh Society, transactions are found to be Benami, which are
prohibited under the Benami Transactions (Prohibition) Act, 1988. In
the light of the above discussion, we are satisfied that no case for
invocation of powers under article 226 of India is made out. Question
No.11 is answered accordingly.
374. Mr. Khambata submitted that the construction carried out by the
petitioners is without obtaining environmental clearance. That apart, as
against the permissible FSI of 1.33 under 1967 DCR, petitioners have
consumed 2.932 FSI. In other words, petitioners have carried out
unauthorized construction. He submitted that once the Court comes to
the conclusion that the building constructed by the Adarsh Society is
illegal, the following decisions lay down what should be the approach of
the Court:
a. M. I. Builders Pvt. Ltd.43 and in particular paragraph 82;
b. Shanti Sports Club44 and in particular paragraphs 74 & 75;
c. Esha Ekta Apartments Coop. Housing Society Ltd.45,
and in particular paragraphs 46 and 56.
375. In the case of M.I. Builders43, in paragraph 82, the Apex Court
observed thus,
"82. High Court has directed dismantling of the whole project
and for restoration of the park to its original condition. This Court
in numerous decisions has held that no consideration should be
shown to the builder or any other person where construction is
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unauthorised. This dicta is now almost bordering rule of law.
Stress was laid by the appellant and the prospective allottees of
the shops to exercise judicial discretion in moulding the relief.
Such discretion cannot be exercised which encourages illegality
or perpetuates an illegality. Unauthorised construction, if it is
illegal and cannot be compounded, has to be demolished. There is
no way out. Judicial discretion cannot be guided by expediency.
Courts are not free from statutory fetters. Justice is to be rendered
in accordance with law. Judges are not entitled to exercise
discretion wearing robes of judicial discretion and pass orders
based solely on their personal predilections and peculiar
dispositions. Judicial discretion wherever it is required to be
exercised has to be in accordance with law and set legal
principles. As will be seen in moulding the relief in the present
case and allowing one of the blocks meant for parking to stand
we have been guided by the obligatory duties of the Mahapalika
to construct and maintain parking lots."
376. In the case of Shanti Sports Club44, in paragraphs 74 and 75, it
was observed thus,
"74. In last four decades, almost all cities, big or small, have
seen unplanned growth. In the 21st century, the menace of illegal
and unauthorized constructions and encroachments has acquired
monstrous proportions and everyone has been paying heavy price
for the same. Economically affluent people and those having
support of the political and executive apparatus of the State have
constructed buildings, commercial complexes, multiplexes, malls
etc. in blatant violation of the municipal and town planning laws,
master plans, zonal development plans and even the sanctioned
building plans. In most of the cases of illegal or unauthorized
constructions, the officers of the municipal and other regulatory
bodies turn blind eye either due to the influence of higher
functionaries of the State or other extraneous reasons. Those who
construct buildings in violation of the relevant statutory
provisions, master plan etc. and those who directly or indirectly
abet such violations are totally unmindful of the grave
consequences of their actions and/or omissions on the present as
well as future generations of the country which will be forced to
live in unplanned cities and urban areas. The people belonging to
this class do not realize that the constructions made in violation of
the relevant laws, master plan or zonal development plan or
sanctioned building plan or the building is used for a purpose
other than the one specified in the relevant statute or the master
plan etc., such constructions put unbearable burden on the public
facilities/amenities like water, electricity, sewerage etc. apart from
creating chaos on the roads. The pollution caused due to traffic
congestion affects the health of the road users. The pedestrians
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and people belonging to weaker sections of the society, who
cannot afford the luxury of air-conditioned cars, are the worst
victims of pollution. They suffer from skin diseases of different
types, asthma, allergies and even more dreaded diseases like
cancer. It can only be a matter of imagination how much the
government has to spend on the treatment of such persons and
also for controlling pollution and adverse impact on the
environment due to traffic congestion on the roads and chaotic
conditions created due to illegal and unauthorized constructions.
This Court has, from time to time, taken cognizance of buildings
constructed in violation of municipal and other laws and
emphasized that no compromise should be made with the town
planning scheme and no relief should be given to the violator of
the town planning scheme etc. on the ground that he has spent
substantial amount on construction of the buildings etc. - K.
Ramdas Shenoy v. Chief Officers, Town Municipal Council,
Udipi 1974 (2) SCC 506, Dr. G.N. Khajuria v. Delhi Development
Authority 995 (5) SCC 762, M.I. Builders Pvt. Ltd. v. Radhey
Shyam Sahu 1999 (6) SCC 464, Friends Colony Development
Committee v. State of Orissa 2004 (8) SCC 733, M.C. Mehta v.
Union of India 2006 (3) SCC 399 and S.N. Chandrasekhar v. State of
Karnataka 2006 (3) SCC 208.
75. Unfortunately, despite repeated judgments by the this Court
and High Courts, the builders and other affluent people engaged in
the construction activities, who have, over the years shown scant
respect for regulatory mechanism envisaged in the municipal and
other similar laws, as also the master plans, zonal development
plans, sanctioned plans etc., have received encouragement and
support from the State apparatus. As and when the courts have
passed orders or the officers of local and other bodies have taken
action for ensuring rigorous compliance of laws relating to planned
development of the cities and urban areas and issued directions for
demolition of the illegal/unauthorized constructions, those in power
have come forward to protect the wrong doers either by issuing
administrative orders or enacting laws for regularization of illegal
and unauthorized constructions in the name of compassion and
hardship. Such actions have done irreparable harm to the concept of
planned development of the cities and urban areas. It is high time
that the executive and political apparatus of the State take serious
view of the menace of illegal and unauthorized constructions and
stop their support to the lobbies of affluent class of builders and
others, else even the rural areas of the country will soon witness
similar chaotic conditions."
377. Applying the tests laid down in the aforesaid cases as also for the
reasons recorded earlier, we are more than satisfied that this is eminent
case to order demolition as the entire construction carried out by the
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petitioners is unauthorized and illegal and in total defiance of provisions
of E.P. Act as also M.R.&T.P. Act. The building is liable to be
demolished and we accordingly order that the Adarsh building
constructed by the petitioners shall be demolished and the cost thereof
shall be recovered from the petitioners.
378. In Prestige Lights Ltd. v. State Bank of India 84, it was held that
in exercising power under Article 226 of the Constitution of India, the
High Court is not just a court of law, but is also a court of equity. The
Apex Court Court referred to the judgment of Scrutton, LJ. in R v.
Kensington Income Tax Commissioners, (1917) 1 K.B. 486 (C.A.) and
observed:
"In exercising jurisdiction under Article 226 of the Constitution,
the High Court will always keep in mind the conduct of the party
who is invoking such jurisdiction. ..."
379. In the course of the judgment, we have dealt with various facets
namely, petitioners -
a. not obtaining recommendations of MCZMA;
b. not obtaining environmental clearance either from MOEF or
State level agencies;
c. consuming F.S.I. of BEST plot;
We have also held that initiation of proceedings under Section 37
of the M.R.&T.P. Act was not in public interest and the reservation of
D.P. Road to residential user was without obtaining approval of
MCZMA. Apart from that, initiation of proceedings under Section 50 of
the M.R.&T.P. Act was also illegal. It is also brought on record that
bureaucrats, ministers, army officers or their kith and kin became
members of Adarsh Society. It cannot be said to be a sheer coincidence.
Prima facie, the possibility of quid pro quo cannot be ruled out. This
84 (2007) 8 SCC 449
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Court cannot remain a mute spectator and shut its eyes to these
illegalities. We, therefore, constrained to issue following directions to
the respondents.
380. We direct the State Government to resume the subject plot for
violating the conditions noted hereinabove, by following due process of
law. Let that action be initiated within a period of four weeks from
today. During the course of hearing, it is brought to our notice that suit
as regards ownership of the subject plot is pending between the Central
Government and the State Government. By way of abundant caution,
we make it clear that we have not gone into this question.
381. It cannot be disputed that the bureaucrats and ministers are
custodians of the Government property. They are entrusted with the
Government property. People repose confidence in them that the
Government property is in the safe hands of bureaucrats and ministers
and that they will protect the Government property. Prima facie, they
have dishonestly disposed of the property in violation of the settled
position of law. In our opinion, prima facie, the bureaucrats and the
ministers are guilty of various offences in acquiring the subject plot as
also misuse and / or abuse of powers. We hereby direct the State
Government to consider initiating appropriate civil / criminal
proceedings against the concerned bureaucrats, ministers and politicians
in accordance with law, if not already done. The concerned Court/s
shall decide the case/s on the basis of evidence on record and in
accordance with law, uninfluenced by the observations made / findings
recorded herein. We further direct the State Government / Union of
India to consider initiating departmental proceedings in accordance with
law against the bureaucrats. The disciplinary authority/ies shall take the
decision in accordance with law without being influenced by the
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observations made / findings recorded herein.
382. After analyzing the material on record, we are satisfied that
petitioners made baseless and reckless allegations for the first time,
during the course of arguments, against respondents No.3 and 4 and Dr.
A. Senthil Vel, Mr. Thirunavukarasu, Mr. T. C. Benjamin and Mr.
Sitaram Kunte. Merely because respondents No.3 and 4 were not
represented before this Court, that does not permit petitioners to make
allegations against them. In fact, Dr. A. Senthil Vel, Mr.
Thirunavukarasu, Mr. T. C. Benjamin and Mr. Sitaram Kunte were not
even impleaded as party respondents. These officers were discharging
their duties. We, therefore, feel that in order to ensure that no baseless
and reckless allegations are levelled against the officers, and that, they
should discharge their duties without fear or favour, they should be
compensated. This will, hopefully, discourage the persons making
baseless and reckless allegations. We, therefore, direct the petitioners to
pay cost of Rs.1,00,000/- each to respondents No.3 and 4 and Dr. A.
Senthil Vel, Mr. Thirunavukarasu, Mr. T. C. Benjamin and Mr. Sitaram
Kunte.
383. We, therefore, direct-
(1) respondent No.1 - Union of India, Ministry of Environment
and Forests to forthwith demolish Adarsh building constructed by the
petitioners at the expenses of the petitioners;
(2) respondent No.1 - Union of India and respondent No.7 - State
of Maharashtra to consider initiating appropriate civil / criminal
proceedings against the concerned bureaucrats, ministers and politicians
in accordance with law, if not already done for committing various
offences in acquiring the subject plot as also misuse and / or abuse of
powers. The concerned Court/s shall decide the case/s on the basis of
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evidence on record and in accordance with law, uninfluenced by the
observations made / findings recorded herein;
(3) respondents No.1 and 7 to consider initiating departmental
proceedings in accordance with law against the bureaucrats. The
disciplinary authority/ies shall take the decision in accordance with law
without being influenced by the observations made / findings recorded
herein;
(4) respondent No.7 - State of Maharashtra to resume CTS
No.652, Block VI, Colaba Division, Captain Prakash Pethe Marg,
adjacent to Backbay Bus Depot, Colaba, Mumbai - 400 005 by
following due process of law. Let that action be taken within a period of
four weeks from today;
(5) petitioners to pay cost of Rs.1,00,000/- each to respondents
No.3 and 4 and Dr. A. Senthil Vel, Mr. Thirunavukarasu, Mr. T. C.
Benjamin and Mr. Sitaram Kunte.
384. We place on record the fact that but for the complaint received
from Shri Simprit Singh of NAPM, respondent No.6 MCZMA would
not have initiated the proceedings under the E.P. Act. Mr. Simprit Singh
of NAPM did not participate in the proceedings before the respondents
as also he was not impleaded party respondent in this Petition. He also
did not intervene in this Petition. But for his intervention, perhaps, the
gross violations made by petitioners would not have been detected. He,
however remained unsung hero. We place on record our appreciation
for his making complaint to MCZMA in a sensitive matter like
environment.
385. In the light of the aforesaid discussion, Petition fails and the same
is dismissed subject to cost of Rs.6,00,000/-, as quantified above.
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386. At this stage, Mr. Seervai orally applies for stay of this order for
the period of 12 weeks from today. Learned Counsel for respondents
oppose this application.
387. Having regard to the fact that the Petition is pending in this Court
since the year 2011 and petitioners intend to challenge this order in the
higher court, we find that request made by Mr. Seervai is reasonable.
Hence, notwithstanding dismissal of the Petition, this order shall remain
stayed for a period of 12 weeks from today subject to clear
understanding that no further request for extension of time shall be
entertained.
[R. G. KETKAR, J.] [RANJIT MORE, J.]
Minal Parab
