Bombay High Court
The Municipal Corporation Of City ... vs Mukesh Ramful Gupta on 22 December, 2017
Bench: R.M. Savant
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.2211 OF 2005
The Municipal Corporation of City
of Thane, a corporate body
governed by the provisions of
Bombay Provincial Municipal
Corporation Act, 1949 having
its office at Panchpakhadi,
Thane (W). ....Appellant
(Orig. Defendant)
V/s.
Mukesh Ramful Gupta
Adult, Occ: Business,
R/at: Manoj Kunj, 144,
Senapati Bapat Marg,
Bombay-16 ....Respondent
(Orig. Plaintiff)
Mr. N.R.Bubna, Advocate for Appellant.
Ms. Gauri Godse, Advocate for the Respondent.
******
CORAM :- R.M.SAVANT &
SANDEEP K. SHINDE, JJ.
RESERVED ON :-12TH DECEMBER, 2017.
PRONOUNCED ON :- 22ND DECEMBER, 2017
JUDGMENT: [Per Shri Sandeep K. Shinde, J.]
The Thane Municipal Corporation Original Defendant in
the Suit has preferred this First Appeal against the judgment and
decree dated 10.3.2005 passed by the Civil Judge Senior Division,
Thane in the Special Civil Suit No.647 of 1995.
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2 Facts in brief of the suit are as follows:
Plaintiff is the owner of the suit land bearing Tika No.2
City Survey No.307 admeasuring 222.41 sq.mtrs. and City Survey
No. 308 admeasuring 15.89 sq.mtrs. situated opposite Ashok Talkies
near S.T.Stand, Gokhale Road, Chendani, Thane, known as Gupta
Estate/House (Hereinafter referred to as 'Suit Property/Plot').
The suit property was purchased by the Plaintiff under
registered deed of conveyance on 2.3.1978. It was occupied by the
tenants on monthly rent for business/residential purposes. On
14.12.1987, the Special Land Acquisition Officer, Thane informed
the Plaintiff about a portion of the land, the Corporation intended to
acquire for road widening project. The Thane Municipal Corporation
thus, demolished the part of the building and acquired part of the
suit plot for road widening project. It is the Plaintiff's case that
before demolition of the building, there were several negotiations
and meetings between the landlord, tenants and Municipal officers.
It is the Plaintiff's case that the then Municipal Commissioner Mr.
Chaube promised the landlord that they would sanction plan for
proposed building considering the co-operation solicited by the
landlord and existing tenants and as such, landlord agreed to
accommodate existing tenants in the new proposed building. It is
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the Plaintiff's case that on 29.11.1989 the then Municipal
Commissioner promised to consider plaintiffs' case as a special case
for sanction of FSI and building plan as Corporation wanted
Plaintiff's portion of land for road widening. Plaintiff further pleaded
that the Thane Municipal Corporation provided a suitable temporary
accommodation to the tenants within their property or elsewhere.
3 It is the Plaintiff's case that in view of the road
widening, the Corporation also vacated and shifted some of the
Plaintiffs' old tenants at its own risk and cost. It is the Plaintiff's case
that he obtained vacant possession as building was required to be
partly demolished for carrying out work of construction of road
widening. Plaintiff thus pleaded that the Defendant-Corporation
compelled Plaintiff to execute the agreement with the tenants in the
old building and all such agreements were executed at the instance
of the Corporation. In the circumstances, Plaintiff wanted to
construct new building as early as possible so as to accommodate
old tenants in the new premises. Plaintiff thus had executed
agreements with 11 tenants.
4 Plaintiff submitted plan and specifications of the suit
property to the Defendant-Corporation through his architect and the
Corporation sanctioned the said plans and specifications vide permit
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VP 88/341/TMC/TDD/704 dated 20.12.1991 and also issued
commencement certificate of the same date 20.12.1991 (Hereinafter
called as the 'Sanctioned Plans' and the said 'Commencement
Certificate' respectively).
5 That as per the said Sanctioned Plans and as per the
prevailing Development Control Rules of the Thane Municipal
Corporation (Hereinafter referred to as 'D.C.Rules'), Plaintiff was
permitted to use FSI 1:2. The said FSI 1:2 was sanctioned for the
suit property because the same was in gaothan. In support of the
claim that the suit property was in gaothan land, the Plaintiff had
submitted to Corporation title documents along with certified copies
of extract of the property card, enquiry register, site plans, etc.
obtained from City Survey Officer, Thane. It is the Plaintiff's case
that in the extract of the property register card, there was remark in
the column of the tenure that the suit property was termed as 'C'
(Mafi) i.e. Gaothan". Plaintiff further pleaded that as per Section
122 of the Maharashtra Land Revenue Code, 1966 which
corresponds to Section 126 of the Bombay Land Revenue Code,
1879, tenure 'C' and the Mafi are of gaothan.
6 It is the Plaintiff's case that on the basis of aforesaid
documents, the Corporation also confirmed that suit property was
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gaothan land and, therefore, as per the prevailing D.C.Rules, FSI 1:2
was available in respect thereof and accordingly, plans were
sanctioned.
7 It is the Plaintiff's case that prior to granting sanction
and approval to the plans submitted by the Plaintiff, Corporation
had already sanctioned plans in respect of several similar other
building proposals to which FSI 1:2 was permitted to be used on the
basis of documents similar to one stated hereinabove. That upon
obtaining sanction and approval from the Corporation, Plaintiff gave
notice of commencement of construction of the new building to the
Corporation and commenced the work of construction as per the
said notice of commencement.
8 It is the Plaintiff's case that on 15.5.1993, the
Corporation had issued a notice of stoppage of construction work
followed by two notices dated 4.10.1993 and 24.2.1995 under
Section 51 of the Maharashtra Regional Town Planning Act, 1956
and 258 of the Bombay Provincial Municipal Corporation Act, 1949.
These were the show-cause notices whereby the Plaintiff was called
upon to show cause as to why construction permission granted by
the Corporation should not be revoked. These two notices were
replied by the Plaintiff on 22.3.1995.
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9 It is the Plaintiff's case that the Respondent-Corporation
had called upon him to submit revised plan on the basis of FSI 1.33
for its sanction and approval. It is the Plaintiff's case that the said
notice was issued by the Corporation in terms of the directions
issued by the State on 23.4.1993 under Section 154 of the M.R.T.P.
Act assuming and presuming that the plot of land on which building
was permitted to be constructed was not ear-marked in Gaothan in
the development plan of the then Thane Municipal Council.
10 It is the Plaintiff's case that notice dated 15.5.1993 (Suit
Notice) was issued by the Corporation as per the direction from the
Urban Development Department issued under Section 154 of the
MRTP Act, 1966. The said notice was challenged by the Plaintiff by
filing Special Civil Suit No.647 of 1995 in June, 1995. In the said
suit, the Plaintiff sought relief of declaration that the said suit notice
bearing no.TMC/TDD/537 dated 15.5.1993 was illegal, malafide,
inoperative in law and the same may be quashed.
11 Besides, Plaintiff also sought declaration that the
Corporation was not entitled to direct the Plaintiff to submit revised
plan. He also sought a declaration of his entitlement to continue
with the plan sanctioned on 20.12.1991. The Plaintiff also sought
relief of perpetual injunction. The Plaintiff also sought a declaration
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that on the principle of promissory estoppel, the Corporation is
stopped from denying that the suit property is gaothan and FSI 1:2
which was lawfully admissible for the development of the suit plot.
The Plaintiff also sought injunction pending the suit to restrain the
Corporation from enforcing the suit notice by prohibitory injunction
from interfering with work of construction of new building. The
Plaintiff also sought mandatory injunction for grant of occupancy
certificate and permission to occupy the premises in the new
building including part occupation.
12 The Corporation filed its Written Statement and
contended that;
(i) From 1.10.1982, the Thane Municipal
Council area and surrounding area got merged into a
Corporation known as Thane Municipal Corporation
and provisions of the Bombay Provincial Municipal
Corporation Act, 1949 were made applicable thereto;
(ii) That on 21.12.1982, the State Government
had issued directions under Section 154 of the MRTP
Act and directed the Corporation to adopt Standardised
Building Bye-laws and Development Control Rules, in
place of D.C.Rules, 1974 and further directed to take
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steps under Section 37(i) of the MRTP Act;
(iii) The Corporation in view of the directions
passed resolution on 1.7.1985 to initiate minor
modifications to the Development Control Rules of
1974.
(iv) That vide resolution dated 2.5.1988, the
Corporation resolved to accept the amended
Development Control Rules, 1985 (For short 'Amended
D.C.Rules of 1985) and submitted the same with minor
modifications and submitted the same for minor
modifications to the Government for sanction in July,
1988;
(v) Corporation in the meantime, pending the
sanction of the said D.C.Rules of 1985 anticipating the
Government sanction adopted policy decision to bring
the said Rules in operation.
(vi) As per the sanctioned Development Control
Rules, 1985 for lands shown as Gaothan in 1974's
Development Plans, the permissible FSI was 1.33 and
in all other cases FSI permissible was 1.
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(vii) That since Plaintiff's property was outside the
area ear-marked as Gaothan under development plan of
1974, the suit property is entitled to consume FSI 1 and
not 1:2.
13 In short, It is the Defendant's contention that in view of
instructions issued by the State on 23.4.1993 under Section 154 of
the MRTP Act, since the suit property was not falling within the
gaothan area as shown in the Development Plan 1974 of Thane
Municipal Council area, sanctioned FSI 1:2 was incorrect and as
such, suit property is entitled to consume FSI 1. Thus, taking
recourse to the directions issued under Section 154, it is contended
by the Corporation that their action to direct the Plaintiff to re-
submit the plan with FSI 1 cannot be faulted with. It appears that
the Corporation by taking recourse to the aforesaid instructions also
directed the Plaintiff to stop the construction work and, therefore,
the suit notice cannot be faulted with and as such justified its action.
14 It appears from the record that pending the suit, the
Plaintiff had filed an application for interim relief. That vide order
dated 2.4.1996 the learned Civil Judge Senior Division restrained
the Corporation from implementing the suit notice dated 15.5.1993
in respect of construction which was in existence on 17.5.1993 as
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particularised in its notice dated 4.10.1993 till the decision of the
suit.
15 The learned Judge after appreciating pleadings and the
evidence placed on record by the parties, decreed the suit partly
vide judgment dated 10.3.2005 and declared the suit notice as bad
in law, inoperative and unexecutable. The learned Judge further
declared that the Corporation was not entitled to direct the Plaintiff
to submit revised plan/proposal on the basis of FSI 1 for its sanction
and approval for construction of a new building in the suit property.
The learned Judge was pleased to direct the Corporation to issue
occupancy certificate and also restrained it from interfering or
demolishing any part of building constructed by the Plaintiff on the
suit property.
16 Heard the learned counsel for the Appellant and the
learned counsel for the Respondent. Perused the records and
proceedings.
17 Point, we are required to answer is:
(i) Whether the judgment and decree passed by the Trial
Court in the subject suit inter-alia declaring the suit notice
dated 15.5.1993 as illegal, inoperative and unexecutable is
legal, valid and proper ?
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18 Before adverting to the facts of the case, it may be
stated that development plan of the erstwhile Thane Municipal
Council along with Development Control Rules had been sanctioned
by the Government vide Notification dated 3.10.1974 . In terms of
Development Control Rules of 1974, permissible FSI for area falling
in Gaothan was 1: 1.33 and for the rest 1:1. On 16.7.1980, the
Government by Notification of the same date, prescribed
standardised building bye-laws and development control rules for
the areas within the jurisdiction of various Municipal Corporations.
On that date, Respondent-Corporation had not come into existence
as it was subsequently established on 1.10.1982 for the areas falling
within the jurisdiction of erstwhile Municipal Council. The State of
Maharashtra in exercise of the authority under Section 154 of the
MRTP Act read with Section 37 issued directions to the Corporation
by its memorandum dated 21.12.1982 to adopt the said
Standardised Building Bye-laws and Development Control Rules to
be made applicable to the area within the jurisdiction of Thane
Municipal Corporation in place of Development Control Rules of
1974 sanctioned earlier along with Development Plan and to follow
the procedure prescribed under Section 37 of the MRTP Act. The
Corporation in pursuance of the directions resolved to initiate minor
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modifications under Section 37(1) of the MRTP Act to replace
sanctioned Development Control Rules of 1974 by Standardised
Building Bye-laws and Development Control Rules. Corporation vide
its resolution dated 2.5.1988 resolved to accept the amendment to
the original text of Draft Development Control Rules and submitted
minor modification to the Government for sanction along with
amendment. The said minor modification proposal was submitted to
the State for sanction on 29.7.1988. On 19.6.1993, the State
sanctioned Development Control Rules, 1985.
19 That before sanctioning the Draft Development Control
Rules 1985 on 23.4.1993, the State in exercise of the authority
under Section 154 issued certain directions regarding admissible
FAR in gaothan area. These directions were issued pending
consideration of the Draft Development Control Regulations
submitted by the Respondent -Corporation to the Government. That
the following directions were issued on 23.4.1993:
"22 While the minor modification proposal was
pending for sanction by the State Government, on 21st
December. 1991, Respondent No. 2- Corporation
published the revised Draft Development Plan in terms of
Section 26 of the M.RT.P. Act.
On 23rd April, 1993, certain directions were
issued by the Government under Section 154 regarding
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admissible F.A.R. in Gaothan area. The directions were
issued pending consideration of the Draft Development
Control Regulations submitted by Respondent No. 2-
Corporation to the Government. The directions issued by
the State Government have been annexed as Exhibit'J'.
from which it appears that the following directions were
issued :- (emphasis supplied)
"(a) Till the Draft Development Control Regulations
submitted to Government by the Thane Municipal
Corporation in 1988 are finally sanctioned, the
Municipal Corporation shall follow the provisions of
sanctioned Development Control Regulations for
'Goathan Areas'.
(b) The 'Gaothan Area' shall be taken as only that area
which is shown on the map of the sanctioned
Development Plan of Thane Municipal Council Area.
(c) As regards the development permissions granted by
the Municipal Corporation after 1988 for the areas
outside the Gaothan Area as shown on the sanctioned
Development Plan of Thane Municipal Council,
permission for further development is to be withheld and
no Occupation Certificates are to be issued until further
orders.
(d) In case of plots where commencement certificate has
been issued with additional F.S.I, for Gaothan, the
Municipal Corporation may initiate action under Section
51 of the M.R.T.P. Act, 1966 and revoke permissions after
following procedure prescribed under the law.
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(e) Till the Revised Development Control Regulations are
finally sanctioned by Government, Municipal
Corporation of Thane shall follow the stricter provisions
of 4 rules, viz., sanctioned rules of 1974, Standard Bye-
laws sent by Government in 1981. rules published Under
Section 37 in 1985 and Draft Revised D.C.R. published
in Dec., 91.
(f) Due permission from the Railway Authority would be
needed where Development Permission is to be granted
by the side of railway properties. In the absence of the
suitable regulations in the present Development Control
Rules, the Thane Municipal Corporation may follow the
Development Control Regulations prescribed in
Development Control Regulations for Greater Bombay,
1991."
20 Directions dated 23.4.1993 were partially modified by
the State on 19.6.1993 and directed that in cases where the Thane
Municipal Corporation had sanctioned development permission with
F.A.R. equivalent to 2.00 after May, 1988 in accordance with the
resolutions passed by the said Corporation in June, 1988 excess
F.A.R. over and above 1.33, so allowed shall not exceed 2.00 or the
F.A.R. actually consumed on 23.4.1993, whichever is less.
21 Having so modified its earlier directions dated
23.4.1993, the State Government, in exercise of its powers under
Section 37(2) of the MRTP Act, sanctioned the Draft Building and
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Development Control Regulations, 1985 subject to the
modifications referred to in the schedule, and for that purpose,
amended the Government notification dated 3.10.1974, as follows:
" The Development Control Rules applicable for the
erstwhile Thane Municipal Council sanctioned by the
Government Notification, Urban Development and Public
Health Department No. TPS- 1272/70693/RPC, dated 3rd
October, 1974 shall be replaced by Development Control
Regulations sanctioned with modifications by Government,
Urban Development Department by Notification No. TPS-
1292/1702/ CR-194/92/UD-12, dated 19th June, 1993
which shall be applicable to the entire area within the
jurisdiction of Thane Municipal Corporation with
immediate effect.
By the aforesaid Notification dated 19th June, 1993,
after Clause N.2.1.1, the following notes were inserted :-
"Note 1 :- The extent of area to be treated as "Gaothan",
shall be strictly confined to":
(i) that area shown as "Gaothan" in the Development Plan
of Thane (for old Municipal Council limits) sanctioned by
Government vide Notification No. TPS-1272/70693/RPC,
dated 3rd October, 1974, and
(ii) that area shown as "Gaothan" in village Form No. I of
Revenue Record and held on Gaothan tenure without
payment of N. A. Assessment of villages now included in the
limits of Thane Municipal Corporation vide Government
Resolution No. TMC-3082/1172/UD-21, dated 1st October,
1982.
Note 2 :-Provided that, in cases (out of'Gaothan'as defined
in Note 1 above only) where Thane Municipal Corporation
has sanctioned F.S.I, equivalent to 2.00 after May, 1988, in
accordance with the Resolution passed by the Corporation
in June, 1988, the excess F.S.I, over and above 1.33 shall be
allowed. The excess F.S.I, so allowed shall not exceed 2.00
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or the P.S.I, actually consumed as on 23rd April. 1993
whichever is less....."
All these facts noted above find mention in the Notification,
Exhibit 'L' dated 19th June, 1993. whereby modification to
the Development Control Regulations was sanctioned by the
State Government under Section 37 of the M.R.T.P. Act."
22 Mr. Bubna the learned counsel for the Defendant would
submit that in terms of the Development Plan of 1974 of the Thane
Municipal Council, the suit property was not falling in the gaothan
area as ear-marked therein. He would further submit that in terms
of the Development Control Rules of 1974, the suit land was entitled
to consume FSI 1. Mr. Bubna would further submit that the learned
trial Judge has committed a gross error by interpreting, gaothan
area, as what is defined under the Maharashtra Land Revenue
Code, 1879. He would submit that reliance placed by the learned
trial Judge on the revenue entries for classifying and holding the
suit property as gaothan was erroneous. He would submit that scope
and ambit of the MRTP Act is altogether different and as such
classification and tenure of the land in development plan is under
exclusive domain of the planning authority under the MRTP Act. In
other words, the learned counsel for the Defendant contended that
though particular land may be gaothan for purposes of the
Maharashtra Land Revenue Code. 1966 but not necessarily gaothan
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as understood under the Development Plan and Development
Control Rules framed under the MRTP Act of given planning
authority.
23 Mr. Bubna further submitted that directions issued by
the State in exercise of authority under Section 154 of the MRTP Act
are binding on the Corporation. He would submit that pending the
consideration of the Draft Development Control Rules, 1985, on
23.4.1993 directions were issued by the State regarding
admissibility of FAR in gaothan area. Mr. Bubna has brought to our
notice clause (b) of the said directives which read as under:
"'Gaothan Area' shall be taken as only that area which is shown on
the map of the sanctioned development plan of the Thane Municipal
Corporation area". (emphasis supplied)
He would, therefore, submit that admittedly suit land was not
shown in the gaothan area of Development Plan of 1974 and,
therefore, FSI 1:1 was admissible and not even 1.33. On this
premise, Mr. Bubna submitted the suit notice and the directions
calling upon the Plaintiff to submit revised plan cannot be faulted
with. He would further submit that the trial Judge has completely
ignored the directions of the State dated 23.4.1993 which were
otherwise binding on the Corporation under the MRTP Act.
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24 Mr. Bubna would also submit that the trial Judge has
committed error by directing the Corporation to issue occupancy
certificate in spite of the fact that the Plaintiff had carried out
construction contrary to Development Control Rules and the
directives of the State and as such, on equitable considerations, the
Plaintiff is not entitled to any relief.
25 Mr. Bubna has relied on the judgment of the Division
Bench of this Court in the case of M.A.Panshikar v. State of
Maharashtra reported in 2002(5) Bombay C.R.318.
26 Ms. Godse the learned counsel for the Plaintiff on the
other hand supported the judgment and decree. She has taken us
through the first directions and modified directions dated 19.6.1993
issued by the State, whereby first directions dated 23.4.1993 were
modified.
She would submit that the Corporation had sanctioned the
plan on 20.12.1991 with FSI 1:2 and, therefore, it cannot be said
that the construction was unauthorised.
27 She has taken us through the modified direction dated
19.6.1993 issued by the State. Ms. Godse submitted that in terms of
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the modified directions contained in Note 1(i), the suit land was not
shown as Gaothan in D.P. of the Thane Municipal Council of 1974;
but in terms of the Clause (ii) of Note 1, it was shown as gaothan in
village Form No.1 of revenue record and held gaothan tenure. She
would further submit that when plans were sanctioned in December,
1991, officers of the Defendant-Corporation had taken note of the
revenue entries to hold suit land as gaothan. She would further
submit that the suit land is now included in the limits of Thane
Municipal Corporation and as such it is to be treated as gaothan.
28 Ms. Godse has invited our attention to Note 2, the same
is re-produced hereunder:
"Note 1 :- The extent of area to be treated as
"Gaothan", shall be strictly confined to":
(i) that area shown as "Gaothan" in the Development
Plan of Thane (for old Municipal Council limits)
sanctioned by Government vide Notification No. TPS-
1272/70693/RPC, dated 3rd October, 1974, and
(ii) that area shown as "Gaothan" in village Form No.
I of Revenue Record and held on Gaothan tenure
without payment of N. A. Assessment of villages now
included in the limits of Thane Municipal Corporation
vide Government Resolution No. TMC-
3082/1172/UD-21, dated 1st October, 1982.
Note 2 :-Provided that, in cases (out of'Gaothan'as
defined in Note 1 above only) where Thane Municipal
Corporation has sanctioned F.S.I, equivalent to 2.00
after May, 1988, in accordance with the Resolution
passed by the Corporation in June, 1988, the excess
F.S.I, over and above 1.33 shall be allowed. The excess
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F.S.I, so allowed shall not exceed 2.00 or the P.S.I,
actually consumed as on 23rd April. 1993 whichever
is less....."
Ms. Godse submitted that in terms of Note 2, it was provided
in cases where the Corporation had sanctioned FSI equivalent to 2
after 1988 in accordance with Resolution passed in June, 1988 for
excess FSI over and above, FSI 1.33 shall not exceed 2.00 or the FSI
actually consumed on 23.4.1993 whichever is less. She would,
therefore, submit that since the suit land has been treated as
gaothan in terms of note 1 and 2, FSI sanctioned on 20.12.1991
stands confirmed. Ms. Godse would, therefore, submit that though
plan with FSI 1:2 was sanctioned in December, 1991 the instructions
contained in directions dated 19.6.1993 under Section 154 of the
MRTP Act relates back to all plans sanctioned after 1988 and
therefore, instructions in Note 1 and 2 crystalises Plaintiff's case and
thus, judgment and decree passed by the trial Court can be
sustained on the basis of the said Note 1 and 2.
29 It may be stated that the Defendant-Corporation in its
reply has not placed the modified direction dated 19.6.1993 on
record and therefore, has not brought to our notice the said
modified direction. The learned counsel Mr. Bubna though tendered
the compilation of documents/paper-book has not tendered the
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modified direction which has a bearing on the issue. Hence, we
were proceeding on the basis of the direction issued under Section
154 in its original form, till our attention was drawn by the learned
counsel for the Respondent to the modified direction which is
referred to in the judgment of the Division Bench in
M.A.Panshikar's case (Supra).
30 Mr. Bubna in his rejoinder has taken us through Notes 1
and 2 and submitted even if suit land is treated as gaothan in terms
of Note 1(ii), FSI actually consumed as on 23.4.1993 or FSI in
excess of 1.33 but not more than 2.00 whichever less has been
protected and/or regularised. He would submit that though the
plan was sanctioned with FSI 1:2, as on 23.4.1993, Plaintiff had
consumed negligible FSI and, therefore, the Plaintiff was not
entitled to consume FSI more than what he had consumed upto
23.4.1994 in terms of the modified direction and especially Note 2
thereof.
31 We have gone through the pleadings as well as
directions issued by the State firstly, on 23.4.1993; and 19.6.1993. It
is not in dispute that, the suit land is now included in the limits of
Thane Municipal Corporation. It is also not in dispute that the suit
land was shown as gaothan in village form no.IV of the revenue
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record when the plan was sanctioned by the Corporation on
20.12.1991 and, therefore, it is to be treated as 'Gaothan' in terms
of Clause (ii) Note 1 . It is not in dispute that the Corporation had
sanctioned FSI 1:2 for suit land. On close scrutiny of the directions
and particularly Note No.1(ii) and Note No.2, we hold the suit land
is squarely covered by the instructions in Note 1(ii) and Note 2. In
our view, having regard to the facts as afore-stated, the suit land is
required to be treated as 'Gaothan' and the finding of the trial Court
in that regard cannot be faulted.
32 That on close scrutiny of Note No.2, we disagree with
the submissions of Mr. Bubna, that since the Plaintiff had consumed
negligible FSI on 23.4.1993, excess FSI so allowed stands frozen on
23.4.1993 and thus admissible FSI would be only to the extent of
FSI consumed in construction completed as on 23.4.1993, even if it
is negligible and not more than it. In our view, Note 2 postulates
that if land is answering the description of the instructions in either
of the clauses of Note 1, than, admissible FSI would be 1:2 or FSI
actually consumed on 23.4.1993, whichever was less. (emphasis
supplied) On plain reading of the note, it cannot be said that
admissible FSI would be only to the extent of the construction
completed on 23.4.1993.
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If the contention of Mr. Bubna is accepted then we would be
creating one more category, i.e., case "where FSI was allowed 1:2,
but frozen at the stage of consumption as on 23.4.1993". This
interpretation would be absurd as it would run contrary to the
object and purpose for which directions were issued. In fact, Note
No.2 admits a interpretation that if the construction was over on/or
before 23.4.1993, but had not consumed FSI more than 2 and
leaving FSI balance, then such balance FSI could not be utilised over
the said plot. This interpretation would be in sync with the object
with which the direction was issued. We, therefore, reject the
contention of Mr. Bubna.
33 It may also be stated that the Corporation in its written
statement, has not dealt with all the averments in the plaint. We
have perused the pleadings of the Corporation as well as the
evidence of P.W.1. That save and except the suggestions to the P.W.1
in cross-examination, the Corporation has done nothing. The
Corporation has not brought on record any document to indicate
that in lieu of acquisition of part of the suit land for road widening
project, the Plaintiff was compensated. In fact, it is the Plaintiff's
case that portion of the suit property was acquired by the
Corporation for road widening project and in lieu thereof, there was
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promise by the Corporation to sanction FSI 1:2. The Corporation has
not brought on record any document to show that in lieu of
acquisition of part of suit property, owner thereof was compensated.
In the absence of such documents either in the form of award or
otherwise and in the light of the fact that averments in plain were
not denied, possibility of assurance by the Corporation to consider
the case of Plaintiff for granting FSI 1:2 for suit land cannot be
stated to be without substance. It also appears from the plaint that
the old building standing on the suit plot was required to be
demolished since part of the suit land was acquired for road
widening project. It is averred in the plaint that the Corporation had
accommodated some tenants until the completion of the new
building. Thus, cumulative effect of all such events leads us to hold
that there was some assurance by the Corporation to the owner of
the suit land that it would sanction FSI 1:2 for the suit plot as a
special case.
34 Be that as it may, firstly, we hold that the Corporation
ought to have brought to our notice directions dated 19.6.1993
which were altogether missing in the written statement as well as in
the paper-book supplied by Mr. Bubna.
35 The Trial Court answered the issue No.3 in the
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affirmative by holding that the Plaintiff has proved that the suit
property is situated within 'Gaothan' and FSI 1:2 is lawfully
admissible for the development thereof. Though the conclusion
drawn by the trial Judge while answering this issue is correct, we do
not agree with the reasoning of the learned Judge. It cannot be said
that merely because the land is classified as 'Gaothan' under the
Maharashtra Land Revenue Code for the purposes of the
Maharashtra Land Revenue Code, it is to be treated as 'Gaothan'
under the M.R.T.P. Act. We have held that under the M.R.T.P. Act,
the local authority is empowered to classify the land in terms of the
Development Plan irrespective of its tenure under the Land Revenue
Code.
The learned trial Judge while answering the issue no.5 has
held that the principle of promissory estoppel is operative against
law. This finding is equally incorrect and runs counter to the judicial
pronouncements that there cannot be estoppel against statute.
Finding on this issue is, therefore, incorrect and the same is set
aside.
36 It may be stated that the Notification dated 23.4.1993
and 19.6.1993 and another Notification were subject matter of Writ
Petition No.3498 of 2000 and the Division Bench in the judgment of
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M.A.Panshikar (Supra) wherein it was held by the Division Bench
to the following effect :- "By the said Notification, it was provided
that till the time Regulations in respect of development/re-
development of the congested area are sanctioned, along with the
said development plan, Regulations sanctioned by the Government
by Notification dated 19.6.1993 shall be applicable for 'Gaothan'
area." Thus, Notification dated 19.6.1993 providing maximum FSI
to any certain area was permitted till the Final Development Control
Regulations along with the Development Plan were sanctioned.
The challenge to this Notification was turned down by the
Division Bench for having not challenged the same at the
appropriate time in-as-much as it appears that the same was
challenged nearly after seven years. Be that as it may, fact remains
that in respect of the case in hand, the suit land answers all
descriptions of Note 1(ii). Suit land now is included within the
limits of Thane Municipal Corporation. In view of the aforesaid, we
hold FSI 2 was admissible qua the suit land for its development.
37 Though we have upheld the applicability of FSI 1:2 to
the land in question for the reasons stated herein above. In so far as
the directions issued to the Corporation to issue occupancy
certificate to the Plaintiff is concerned, we are unable to sustain such
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a direction for want of jurisdiction as also could not have been
issued in the absence of verification and inspection of the building
by the authorities of the Corporation that as such, we direct the
Plaintiff to submit an application to the Corporation for obtaining
occupation certificate of the building constructed on the suit land.
We further direct the Corporation to process the said application in
in terms of our observations hereinabove and in accordance with
law within a period of three months from today. The rest of the
decree stands confirmed except to the extent of Clause (iv) of the
judgment and order dated 10.3.2005.
38 In the result, the Appeal is partly allowed. Decree be
drawn up accordingly with no order as to costs. The Appeal is
disposed of.
(SANDEEP K. SHINDE, J.) (R.M.SAVANT, J.)
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