Bombay High Court
Nitesh Mohanlal Doshi vs The State Of Maharashtra Through ... on 21 August, 2017
pvr pil6-16.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO. 6 OF 2016
Nitesh Mohanlal Doshi )...Petitioner
Versus
1.The State Of Maharashtra through Ministry )
Of Urban Development Dept. )
)
2.The Municipal Commissioner, )
Mumbai Municipal Corporation )
3.The Executive Engineer (B.P.) City-II )
)
4. M/s.Capricon Realty Ltd. )
5. The Chief Office, Maharashtra Housing and )
Area Development Authority. )...Respondents
---
Mr.Rakesh Agrawal, for the Petitioner.
Mr.H.S.Venegaonkar, Addl.Government Pleader for the Respondent-
State.
Mr.A.Y.Sakhare, Senior Advocate with Mr.Joel Carlos and
Mrs.Shobha Ajithkumar for the Respondent-Corporation.
Dr.Veerendra Tulzapurkar, Senior Advocate with Dr.Milind
Sathe,Senior Advocate, with Dr.Birendra Saraf, Mr.Aditya
Khandeparkar, Mrs.Sukhada Wagle-Kamat, Mr.S.Bhogle i/b.
M/s.Hariani & Co., for Respondent No.4.
----
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CORAM : DR. MANJULA CHELLUR, C. J., &
G.S.KULKARNI, J.
RESERVED ON: May 5, 2017
PRONOUNCED ON: August 21, 2017
---
JUDGMENT: (Per G.S.Kulkarni,J.)
1. Rule returnable forthwith. Respondents waive service.
By consent of the parties, heard finally.
2. This petition in public interest espouses a cause
surrounding interpretation of Regulation No.33(1) of the
Development Control Regulations for the Municipal Corporation
of Greater Mumbai (for short "DCR") which provides for an
additional 'floor space index' (for short 'FSI') in lieu of road set
back area.
3. Petitioner claims to be a social activist and a
environmentalist, having worked on such issues since last nine
years and more. The Petitioner has stated that he is a founder
member of AIIMS - an organization involved with the welfare of
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citizens. By this petition the petitioner states to espouse the
rights of poor mill workers and their family members, who are
deprived of a shelter despite the beneficial provisions of
Regulation 58 of the DCR. The petitioner prays for the following
reliefs:-
"(a) That this Hon'ble Court may pleased to call for the
record of Respondent No.2 and 3 authority and after
verifying the legality and proprietary of the allegations
made by the Petitioner, this Hon'ble Court may pleased to
issue writ of certiorari or writ in the nature of certiorari
quashing and setting aside permissions granted by
Respondent No.2 and 3 in favour of Respondent No.4 and
this Hon'ble Court be pleased to declare that the
Respondent No.4 is liable to hand over 1673.10 sq.mtrs
area to Respondent No.2 as MCGM's share and 1368.90
sq.mtrs area to Respondent No.5 as MHADA's share and
this Hon'ble Court be pleased to direct Respondent No.2
and 3 to recover said MCGM's share and MHADA's share;
(b) That this Hon'ble Court may pleased to call for
record of Respondent No.2 and 3 authority and after
verifying the legality and proprietary of the allegations
made by the Petitioner, this Hon'ble Court may pleased to
issue writ of certiorari or writ in the nature of certiorari
quashing and setting aside permissions granted by
Respondent No.2 and 3 in favour of Respondent No.4 and
this Hon'ble Court be pleased to direct Respondent No.2
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and 3 to deduct area of 3543.13 sq.mtrs area from the
area of 81,101.22 sq.mtrs sanctioned for construction on
the said plot of Respondent No.4;
(c) In alternate to prayer clause (a) and (b) above,
this Hon'ble Court be pleased to direct Respondent no.2 to
decide complaint/notice dated 28th June,2015 sent by the
Petitioner by treating present petition as representation of
Petitioner within period of 45 days or within such period
as this Hon'ble Court deem fit and proper after following
principles of natural justice;
(d) pending hearing and final disposal of present
petition, this Hon'ble Court be pleased to pass order of
injunction restraining Respondent No.4 from carrying any
further construction activity on suit plot;"
Learned Counsel for the petitioner has submitted that prayer (a) is
covered by a decision of the Division Bench of this Court in the
case of Girni Kamgar Karmchari Niwara & Kalyankari Sangh
V/s. State of Maharashtra and Ors. in Public Interest Litigation
No. 6 of 2008 dated 09/03/2011 and thus the petitioner does
not press the said prayer and would pursue the petition on the
other prayers.
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4. The grievance of the petitioner in this PIL is against
respondent No.4 who is undertaking a development, on a textile
mill land, being plot Nos.CTS No.1903 (pt), 1904 (pt), 1905,
1/1905 and 2/1905, falling in Byculla division situated at Dr.
A.L.Nair Marg, Maulana Azad Road, Jacob Circle, Mumbai (for
short 'the said land'). According to the petitioner, development on
this land is required to be undertaken by respondent No.4 as per
the provisions of Regulation 58 of the DCR.
5. The Petitioner contends that the land originally
belonged to one Hindustan Spinning and Weaving Mills Ltd.- a
sick textile unit. The area of the land in question was 68,274.86
sq.mtrs. A sub plot admeasuring 6754.40 sq.mtrs. was carved out
from the larger land, for construction undertaken by one
Kalpataru Heights. On the balance plot of land admeasuring
61,520.46 sq.mtrs., (68274.86 - 6754.40 Sq.mtrs), construction
of an area of 75,079.11 sq.mtrs. has been undertaken. The
petitioner says that, considering this measurement of the
construction, the plot area is 56,450.46 sq.mtrs. applying the
permissible FSI of 1.33. According to the respondents, the open
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plot area as contemplated under Regulation 58(1)(b) of the DCR
is 61,520.46 sq.mtrs. minus 56,450.46 sq.mtrs. = 5070 sq.mtrs.
6. On the above backdrop the only issue being urged by
the petitioner is stated to be violation of FSI norms by the
Respondents, as it is the petitioner's case that the respondents
have completely mis-interpreted and misapplied DCR No.33(1)
and more particularly paragraph three of the said DCR, in
calculating the benefit of FSI being conferred on Respondent
No.4, for surrender of the road set back area. According to the
petitioner, the Respondent No.2 has breached DCR No.33(1) read
with regulation 58(1) in conferring FSI benefit on Respondent
No.4 amounting to a gross illegality. The petitioner says that
methodology adopted by respondent No.4, which is stated to be in
connivance with the Municipal Corporation and the MHADA, has
reduced the 'public benefit', namely of a substantial area, which
would have entailed to the benefit of the MCGM and MHADA
under Regulation 58(1). It is stated that there is reduction of
area, of not only the recreation ground but also the MHADA's
share, utilizable for public housing for mill workers and their
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families, who are struggling for a home and who are not aware of
their rights and legitimate legal entitlements.
7. It would be relevant to extract the contention of the
petitioner on the issue of violation of FSI norms as contained in
paragraph 15(a), (b) and (c) of the petition, which reads thus:-
"15. The Petitioner states that 2nd issue in the present petition is
pertaining to the violation of FSI norms as follows:-
(a) The Petitioner states that from contents of forgoing
paragraph, the plot area available for development is 56,450.46
(non-open plot) plus 2028 (owners share of open plot)=58,478.46
sq.mtrs. From said area the road set back area admeasuring 3062
is to be deducted. Thus, net plot area for the computation of FSI
shall be 58,478.46 (-) 3062 = 55416.46 sq.mtrs.
(b) Thus, permissible built up area as per FSI of 1.33 shall be as
follows:
Area in FSI Area in sq.mtrs.
sq.mtrs.
Plot area available 55,416.46 1.33 73,703.89
for development
including Owners
share
MCGM share 1673.10 1.33 2225.22
(33%) for
consuming FSI on
site
40% of road set 1224.8 1.33 1628.98
back area (3062
sq.mtrs) for
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loading on site
Total 77558.09
(c) The Petitioner states that as per Proforma-A to the sanctioned
plan, the FSI granted in 81,101.22 sq.mtrs. Hence, built up area of
81,101.22 (-) 77,558.09 = 3543.13 sq.mtrs. is granted contrary to
provisions of Development Control Rules. The Petitioner states that
said additional area of 3543.13 sq.mtrs is on account of wrong
computation road set back area and MCGM share."
8. The petitioner thus contends that an additional area of
3543.13 sq.mtrs. is granted to Respondent No.4 on account of
wrong computation of road set back area. The petitioner
contends that as per Proforma A to the sanctioned plan, FSI
granted is 81,101.22 sq.meters. Thus, according to the petitioner,
a built up area of 81,101.22 after subtracting 77,558.09 which is
the total area available for development and includes the share of
33% of MCGM and 30% road set back area (3062 sq.mtrs.).
Thus, according to the petitioner, an area of 3543.13 sq.mtrs is
granted to respondent No.4 contrary to the provisions of DCR
which needs to be deducted from the sanctioned built up
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permission. Learned Counsel for the petitioner in supporting this
contention, that a benefit is granted to respondent No.4, contrary
to the provisions of Regulation 33(1), has drawn our attention to
Regulation 33(1) as it stood prior and post amendment dated
19.4.2001.
9. In pursuance of the orders passed by the Court, on
behalf of the Municipal Corporation, counter affidavits dated 21
October 2016 and 8 February 2017 respectively have been filed.
Also on behalf of the State Government counter affidavit of the
Deputy Director of Town Planning dated 1 February 2017 is
placed on record.
10. In the first affidavit filed on behalf of the Municipal
Corporation, referring to DCR 33(1), it is averred that net area of
the plot in question after deducting the set back is 58.254.98
sq.mtrs. It is stated in paragraph 3 as under:-
"In the aforesaid case the net area of the plot after
deducting setback is 58254.98 sq.mtr. Thus
maximum 40% of 58254.98 sq.mtr = 23301.99
sq.mtr. setback FSI can be loaded on plot under
reference. In this case only 3265.48 X 1.33=
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4343.09 sq.mtr. is utilized on plot under reference
which is within the permissible limits as per DCR
33(1)." (emphasis supplied)
11. What is clear from the above paragraph of the
Municipal Corporation's affidavit is the Municipal Corporation's
understanding of paragraph 3 of Regulation 33(1), that it permits
a maximum of 40% of the FSI 'of the balance plot area'
remaining after deducting the set back area, and accordingly
23301.99 sq.mtrs. of FSI could be loaded and in fact 4343.09 is
loaded.
12. In the second affidavit dated 8 February 2017 as filed
on behalf of the Municipal Corporation, the deponent recites the
procedure adopted by the Municipal Corporation in undertaking
amendment of the DCR.
13. In the counter affidavit as filed on behalf of the State
Government which is of the Deputy Director of Town Planning, it
inter-alia states that the Municipal Corporation vide letter dated
23 March 2010 had submitted a proposal for modification of
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Regulation 33(1) of the DCR to be sanctioned as per Section
37(1) of the MRTP Act,1966. It is stated that the Government in
the Urban Development Department, sanctioned the said
modification under Section 37(2) of the MRTP Act vide
Notification dated 17 June 2010. 'Exhibit B' of the Affidavit is the
notification dated 17 June 2010 which incorporates the said
amendment in the Schedule as referred in the notification.
14. On behalf of Respondent No.4, counter affidavit is
filed opposing this petition. Respondent No.4 contends that the
present petition is not bonafide. It is then contended that the
petition is filed with a delay of almost nine years, inasmuch as in
terms of Regulation 58 of the DCR, area calculation for surrender
of land was already undertaken, and the portion of the land
component which would fall to the share of respondent nos.2 and
5 (Municipal Corporation and MHADA) was duly handed over to
these respondents in December 2007 and the remaining land is
interalia being developed by respondent No.4. It is stated that
the construction of residential building No.1 (Tower A, B, C) is
completed and a building completion certificate is obtained on 30
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November 2013. The apartment purchasers are occupying the
apartments, as also the construction of other amenities, like club
house was completed on 21 July 2014. Respondent No.4 would
further state that the issues as raised in this petition have been
conclusively decided in an earlier litigation namely PIL No.6 of
2008 filed by one Girni Kamgar Karmachari Niwara Kalyankari
Sangh (for short 'Girni Kamgar Sangh'). It is submitted that Girni
Kamgar Sangh had initially approached the Monitoring
Committee constituted by respondent No.1 under DCR 58, raising
an objection that the lands allotted to respondent Nos.2 and 5
were less than what were required to be actually allotted. It is
stated that as the Monitoring Committee did not accept the said
contention, the Girni Kamgar Sangh had filed PIL No.6 of 2008
which came to be dismissed by a Division Bench of this Court by
judgment and order dated 9 March 2011 referring to the decision
of the Supreme Court in the Bombay Dyeing & Mfg. Co. Ltd. 1.
Respondent No.4, thus seeks dismissal of this petition
15. We have heard learned Counsel for the parties, with
1 (2006)3 SCC 434
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their assistance, we have also perused the documents as placed on
record as also the relevant provisions of the DCR.
16. Being purely a legal issue, the learned Counsel for the
parties have mainly advanced their respective submissions on the
interpretation of regulation 33(1). Learned counsel for the
Municipal Corporation submits that paragraph three of regulation
33(1) is correctly understood by the Municipal Corporation as
stated in the counter affidavit and noted by us above to mean that
it permits a maximum of 40% of the FSI 'of the balance plot area'
remaining after deducting the set back area. Dr.Tulzapurkar,
learned Senior Counsel for respondent no.4 also supports the
contention as urged on behalf of the Municipal Corporation. In
contesting the petition, the respondents have also placed reliance
on their respective pleas as made in the counter affidavits.
17. On the above backdrop, the question which falls for
our consideration, is as to what would be the extent of additional
FSI as permissible under DCR 33(1) which would be available for
development, on the land when there is a surrender of an area for
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road widening/ construction of a new road.
18. Before we examine the dispute, we may observe that
the objection as raised on behalf of Respondent No.4 to the
maintainability of the petition cannot be accepted, for the reason
that Respondent No.4 is not in a position to demonstrate that the
issue as regards interpretation of Regulation 33(1) of DCR as
urged by the petitioner has been decided in the earlier round of
litigation as initiated by Girni Kamgar Snagh. The issue which
falls for our consideration in this petition is principally on the
interpretation of Regulation 33(1) and more particularly the
interpretation of paragraph three of DCR 33(1), inasmuch as on
one hand the petitioner would contend that paragraph three of
Regulation 33(1) provides for FSI as granted under paragraphs
one and two to be utilized on the balance plot of land to the
extent of 40% of the FSI so granted under paragraph one and two
where the land is situated in Mumbai city. The contention as
urged on behalf of the petitioner is that paragraph three of DCR
33(1) does not confer any benefit over and above the benefit
granted under paragraphs one and two. On the other hand, the
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respondents would contend that the FSI which would be available
for development under regulation 33(1) would be "40% of the
FSI of the balance plot which remains after surrender of the road
area", for widening or construction of new road. Respondent
No.4 is not in a position to show that this issue is no more res-
integra. We accordingly reject the objection as raised on behalf of
respondent No.4.
19. As the issue in the petition would revolve around the
interpretation of DCR 33(1) and more particularly paragraph
three thereof, it would be appropriate to extract the same. DCR
33(1) as is existed originally and after its amendment with effect
from 19.4.2001 reads thus:-
Schedule
Existing Regulation 33(1) Modification sanctioned:
Road widening and construction of Road widening and construction of
new Roads: new Roads
The Commissioner may permit The Commissioner may permit
additional FSI on 100 per cent of the additional FSI on 100 per cent of the
area required for road widening or area required for road widening or
for construction of new roads for construction of new roads
proposed under the Development proposed under the Development
plan or those proposed under the plan or those proposed under the
Mumbai Municipal Corporation Mumbai Municipal Corporation
Act,1888, excluding areas of internal Act,1888, excluding areas of internal
means of access, if the owner means of access, if the owner
(including the lessee) of such land (including the lessee) of such land
surrenders such land for road surrenders such land for road
widening or new road construction widening or new road construction
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without claiming any compensation without claiming any compensation
in lieu thereof and hands over the in lieu thereof and hands over the
same to the Corporation free of same to the Corporation free of
encumbrances to the satisfaction of encumbrances and after the owner or
the Commissioner. Such 100% of the lessee has leveled the land to the
FSI on land so surrendered to the surrounding ground level and after he
Corporation will be utilizable on the has constructed a 1.5 mt. High
remainder of the land upto a limit of compound wall leaving the set back
(40% in respect of plots situated in area (or at a height stipulated by the
Mumbai City and 80% in respect of Commissioner) with a gate at the cost
plots situated in the suburbs and of the owner and to the satisfaction of
extended suburbs) of the area of the the Commissioner.
plot remaining after such When an owner or lessee or Power
surrendered and the balance FSI of Attorney Holder/Authority Holder
remaining thereafter shall be allowed also develops or constructs the road
to be utilized as a Development Right on the surrendered land at his cost
in accordance with regulations subject to such stipulations as may be
governing Transfer of Development prescribed by the Commissioner to his
Rights (TDRs) in Appendix VII or the satisfaction and hands over the said
full FSI on the land surrendered to developed/constructed road to the
the Corporation may be allowed to Commissioner free of cost, he may be
used as Development Right in granted by the Commissioner
accordance with the Regulations additional FSI equal to 25% of the
Governing Transfer of Development area of this construction/
Rights (TDRs) in Appendix VII. development done by him (this
Thereafter the road land shall be modification will not apply in cases
transferred in the City Survey records where road FSI is utilised and also
in the name of the Corporation and full occupation certificate is granted.)
shall vest it in becoming part of
public street as defined in sub-section Such 100% FSI on land so
(3) of section 288 of the Mumbai surrendered to the Corporation
Municipal Corporation Act,1888. and/or FSI towards road area
constructed, will be utilizable on the
remainder of the land upto a limit
of 40% in respect of plots situated in
Mumbai City and 80% in respect of
plots situated in the suburbs and
extended suburbs of the area of the
plot remaining after such surrender
and the balance FSI remaining
thereafter shall be allowed to be
utilized as a Development Right in
accordance with Regulations
Governing Transfer of Development
Rights (TDRs) in Appendix VII or the
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full FSI of land surrendered to the
Corporation may be allowed to be
used as Development Right in
accordance with the Regulations
Governing Transfer of Development
Rights (TDRs) in Appendix VII.
Thereafter the road land shall be of
the Corporation and shall vest it in
becoming part of public street as
defined in sub-section (3) of section
288 of the Mumbai Municipal
Corporation Act,1888.
(emphasis supplied)
20. As noted above the question being posed on behalf of
the petitioner concerns the interpretation of paragraph three
(supra) of Regulation 33(1). The petitioner referring to paragraph
three of regulation 33(1), contends that there is a complete mis-
interpretation of paragraph three at the hands of the respondents,
inasmuch as the FSI for the land surrendered to the Corporation
(100% of the area so surrendered) and/or FSI towards road area
constructed (25% of the area of the land so surrendered), would
be utilizable on the remainder of the land only to the extent of
40% of such FSI, in respect of plots situated in Mumbai City and
not 40% of the FSI of the area of the plot remaining after such
surrender as being interpreted by the respondents.
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21. At the outset, we may observe that there is some
ambiguity in the manner paragraph three (supra) of Regulation
33(1) is worded, which we discuss hereafter. A bare perusal of
Regulation 33(1) makes it clear that it deals with "Road Widening
and Construction of new Roads" and confers a benefit of FSI on the
owner/lessee of the land who would surrender his land for the
purpose of road widening or construction of new road. As
apparently seen paragraph one of regulation 33(1) confers a
power on the Commissioner to grant additional FSI of 100% of
the area so surrendered by the owners/lessee without claiming
any compensation. In paragraph two additional FSI equal to 25%
area of the construction/development undertaken by the owner/
lessee can be granted if the owner/lessee interalia develops or
constructs the road on the surrendered land at his cost and hands
over the same to the Commissioner free of cost, however, with an
exception that this modification will not be applicable in cases
where road FSI is utilised and also full occupation certificate is
granted. Further paragraph three of the DCR 33(1) provides
that such 100% of the FSI on the lands so surrendered to the
Corporation or FSI towards road area constructed, will be
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utilizable on the remainder of the land, upto a limit of 40% in
respect of the plot situated in Mumbai city and 80% of the land
situated in the suburb and extended suburb, to be utilized on the
plot remaining after such surrender. The balance FSI remaining
thereafter shall be allowed to be utilized as a Development Right
in accordance with Regulations governing Transfer of
Development Rights (TDRs) as contained in Appendix VII of the
DCR. Thus, a plain reading of regulation 33(1) makes it manifest
that what is permissible under paragraph 3 of regulation 33(1) is
that 100% of FSI of land so surrendered to the Corporation or
25% FSI towards road area constructed is utilizable on the area of
the remaining plot. As the entire controversy is what would be
the correct reading of paragraph three of regulation 33(1), we
separately extract the said paragraph hereunder:-
"... ... ... ...
Such 100% FSI on land so surrendered to the Corporation
and/or FSI towards road area constructed, will be utilizable on
the remainder of the land upto a limit of 40% in respect of
plots situated in Mumbai City and 80% in respect of plots
situated in the suburbs and extended suburbs of the area of the
plot remaining after such surrender and the balance FSI
remaining thereafter shall be allowed to be utilized as a
Development Right in accordance with Regulations Governing
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Transfer of Development Rights (TDRs) in Appendix VII or the
full FSI of land surrendered to the Corporation may be allowed
to be used as Development Right in accordance with the
Regulations Governing Transfer of Development Rights (TDRs)
in Appendix VII. Thereafter the road land shall be of the
Corporation and shall vest it in becoming part of public street
as defined in sub-section (3) of section 288 of the Mumbai
Municipal Corporation Act,1888." (emphasis supplied)
22. The ambiguity making a departure from giving a
definite meaning to the provision crops up in paragraph three of
regulation 33(1), as created by the following wordings:
".... of the area of the plot remaining after such surrender...."
The endeavour of the Court would be to render the provision
meaningful so as to fulfill the object and purpose it intends to
achieve. On a plain reading of paragraph three of regulation
33(1), it is quite apparent that the word "of" (supra) as
incorporated in the above sentence of the provision, completely
takes away the object which the provision intends to achieve
namely as to what has been stipulated in paragraphs one and two
of Regulation 33(1). What is intended in paragraphs one and
two of Regulation 33(1) is interalia conferring of an additional
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benefit of FSI of 100% of the area required for road widening or
construction of new road proposed under the development plan or
those proposed under the Mumbai Municipal Corporation Act, if
the owner/lessee surrenders such land for road widening or new
road, without claiming any compensation in lieu thereof and
hands over the same to the Corporation. Paragraph two provides
for a benefit of 25% of additional FSI when owner/lessee actually
develops or constructs the road on the surrendered land at his
cost. When such additional FSI either of 100% or 25% is granted
by the Municipal Commissioner/Corporation as aforestated, then,
the owner or lessee is permitted to utilize the FSI on the
remaining plot of land to the extent it is so conferred. Paragraph
three of DCR 33(1) clearly provides for utilization of FSI so
granted under paragraphs one and two. It cannot be read to
mean that it confers on the owner/lessee an additional benefit
dehors or over and above the benefit which has been conferred
under paragraphs one and two of regulation 33(1). The
interpretation as made by the respondents would require one to
read paragraph three of DCR 33(1) to mean that for plots in
Mumbai City it permits utilization of FSI of 40% of the balance
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area of the plot remaining after such surrender, and not what has
been conferred in paragraphs one and two of Regulation 33(1) of
DCR. In our opinion such interpretation amounts to a complete
absurdity. Paragraph three cannot be read to defeat what has been
provided in paragraphs one and two of Regulation 33(1) of DCR
and/or dehors paragraphs one and two of the said regulation.
Paragraph three simplicitor provides for the manner of utilization
of the FSI as would be granted in accordance with paragraphs one
and two, on the balance plot of land. In reaching to this
conclusion we are required to consider the provision in its
entirety. The interpretation as canvassed on behalf of the
respondents if accepted makes paragraph one and two of DCR
33(1) completely unworkable, in the statutory scheme, they
appear, inasmuch as there is no indication elsewhere in the
regulations as to how and in what manner FSI as conferred under
paragraph one and two would be treated. In any event on first
principles paragraph 3 of regulation 33(1) cannot be read so as to
confer a benefit different from paragraphs one and two of the said
regulation, when paragraph three of the said regulation merely
speaks of utilization of the FSI conferred under paragraphs one
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and two.
23. It is well settled that the Statute is designed to be
workable and the interpretation which the Court would attribute
shall serve that object. (Oswal Agro Mills Ltd. Etc. Vs. Collector
of Central Excise and Ors.2) It is further well settled principle of
interpretation that if the ordinary and plain reading of a statutory
provision leads to an absurdity, contrary to the purpose, intent
and object of the provision, then, it is permissible for the Court to
correct the said anomaly and accord a construction which may
even modify the meaning of the word and even the structure of
the sentence. It would be profitable to refer to the following
paragraph from Maxwell on the Interpretation of Statutes (12 th
Edition, pg.228):-
"Where the language of a statute, in its ordinary
meaning and grammatical construction, leads to a
manifest contradiction of the apparent purpose of the
enactment, or to some inconvenience or absurdity which
can hardly have been intended, a construction may be
put upon it which modifies the meaning of the words
and even the structure of the sentence. This may be
done by departing from the rules of grammar, by giving
an unusual meaning to particular words, or by rejecting
them altogether, on the ground that the legislature could
not possibly have intended what its words signify, and
that the modifications made are mere corrections of
careless language and really give the true meaning."
2 1993 Supp (3) SCC 716
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In "Tirath Singh Vs. Bachittar Singh & Ors."3, their
Lordships of the Supreme Court adverting to the above position in
law and referring the above passage in Maxwell in interpreting
Section 99 of the Representation of the People Act,1951 held as
under:-
" It is argued that if the language of the enactment
is interpreted in its literal and grammatical sense, there
could be no escape from the conclusion that parties to
the petition are also entitled to notice under the
proviso. But it is a rule of interpretation well-
established that, "Whether the language of a statute, in
its ordinary meaning and grammatical construction,
leads to a manifest contradiction of the apparent
purpose of the enactment, or to some inconvenience or
absurdity, hardship or injustice, presumably not
intended, a construction may be put upon it which
modifies the meaning of the words, and even the
structure of the sentence."
(Maxwell's
Interpretation of Statutes, 10 th
Edition, p.229)" (emphasis supplied)
24. Adverting to the above norms of interpretation, we are
of the considered opinion that paragraph three of regulation
33(1) does not confer any additional or a different FSI benefit
than what is provided in paragraphs one and two of regulation
33(1). It only prescribes the manner in which the benefit of FSI
already conferred under paragraphs one and two is to be utilized.
3 AIR 1955 SC 830
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The word "of" in the following sentence of paragraph three of
regulation 33(1) creates an absurdity and is required to be read as
"on". The relevant wording in paragraph three of regulation
33(1) (supra), thus is required to be read as under:-
"on the area of the plot remaining after such surrender"
In our opinion, on the above interpretation the provision becomes
workable and satisfies its legislative intent and object, namely of
the grant of FSI and its utilization, in case of surrender of land for
road widening and construction of new road.
25. We accordingly partly allow the petition in terms of
the following directions.:-
(i) In the light of the interpretation of DCR 33(1) as held
above the Municipal Commissioner shall re-calculate the area
surrendered by respondent No.4 for road widening and
construction of road under paragraphs one and two of Regulation
33(1) of the DCR and the FSI to be granted by the Municipal
Commissioner thereunder, and thereafter calculate 40% of the
said FSI to be utilized by respondent no.4 on the land remaining
after such surrender.
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(ii) The Municipal Commissioner shall permit respondent
no.4, utilization of FSI conferred under paragraphs one and two
of DCR 33(1) on the balance plot of land, only to the extent of
40% of the FSI so conferred under paragraphs one and two of the
Regulation 33(1) and nothing more.
(iii) In the event, any excess FSI is granted to respondent
no.4 under paragraph 3 of regulation 33(1), to be used on the
said plot which is over and above the entitlement as stipulated
under paragraphs one and two of regulation 33(1), in that event
the Municipal Commissioner shall take corrective measures of
withdrawing such excess FSI. If any construction is undertaken by
respondent no.4 utilizing such excess FSI (non entitled FSI),
respondent no.4 shall surrender the said construction in favour of
the Municipal Corporation and/or the MHADA as per law or the
same shall be adjusted in the balance non-completed works of
respondent no.4 in the said project.
The petition is disposed of in the above terms. No
costs.
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The Municipal Commissioner shall not take coercive
steps in terms of the above order for a period of eight weeks from
today.
(G.S.KULKARNI, J.) (CHIEF JUSTICE)
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