Bombay High Court
Kiran Nanik Motwane And Anr vs Uday Indukumar Jasani And 16 Ors on 26 April, 2022
Bench: R. I. Chagla
NMS-1450-2019.DOC
jsn&spk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.1450 OF 2019
IN
SUIT NO.843 OF 2019
Kiran Nanik Motwane & Anr. ...Plaintiffs
Vs.
Uday Indukumar Jasani & Ors. ...Defendants
Mr. Vishal Kanade and Mr. Anirudh Hariani, Mr. Virendra Pereira
and Aneesha Munshi i/b. Divya Shah Associates for the
Applicants / Plaintiffs.
Mr. Ravi Kadam, Senior Counsel, Mr. Rohan Kadam with Mr.
Sanjay Kadam, Mr. Sanjeel Kadam, Ms. Sayli Rajpurkar,
Nitisha Lad i/b. Kadam & Co. for the Defendant Nos.1 and 2.
Mr. A.Y. Sakhare, Senior Advocate with Ms. Pooja Yadav, Ms.
Shilpa Redkar and Mr. Rohan Mirpuri for Defendant Nos.3
to 8 - MCGM.
Dr. Birendra Saraf, Senior Advocate, Aseem Nafade, Anuj Narula
and Tarang Jagtiani i/b. Jhangiani Narula and Associates for
the Applicant in Interim Application No 463 of 2021.
Mr. Yuvraj Choksy, Pragya Dahiya i/b. Khaitan & Co. for
Defendant Nos.12 and 13.
CORAM: R.I. CHAGLA, J.
JUDGMENT RESERVED ON 21ST MARCH, 2022.
JUDGMENT PRONOUNCED ON 26TH APRIL, 2022.
ORDER
1. By the present Notice of Motion, the Applicants /
Plaintiffs have sought an interim order and injunction restraining
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Defendant Nos.1 and 2, their employee, agents and servants, or any
person claiming by or through them, from carrying out construction
of any kind on Plot No. A (being old Plot No.435A corresponding
to CTS Nos. E/323 (part) and E/325 collectively admeasuring
795.176 square meters or thereabouts). Further injunction is sought
by the Applicants / Plaintiffs restraining Defendant Nos.1 and 2
from allotting flats and / or executing any agreements, arrangements
or understandings with third parties, inducting them into the flats
proposed to be constructed in the building on Plot No. A (being old
Plot No.435A corresponding to CTS Nos. E/323 (part) and E/325
collectively admeasuring 795.176 square meters or thereabouts.
2. Consequential relief has also been sought against
Defendant Nos.3 to 8 from issuing occupation certificate, in part or
full to permit the prospective purchasers to occupy any unit in the
building alleged to be illegally constructed on Plot A. Relief of
appointment of Court Receiver has been sought and licensed
surveyor as well as certain disclosures.
The brief background of facts is as follows:-
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3. One Motwane Private Limited ("MPL") was owner of
plot of land bearing CTS Nos. E/323, E/324 and E/325 situated and
lying at 14th and 15th Road, Khar (West), Mumbai 400 052 (larger
property). MPL was company owned by the Motwane family.
4. On 31st March, 1990, the larger property was
notionally divided and conveyed to the different members of the
Motwane Family as under:-
(i) Plot A admeasuring 795.176 Square meters was conveyed
to Late Hardevi Motwane and Defendant No.9 inclusive of 15%
proportionate recreational ground (RG) area;
(ii) Plot B admeasuring 1887.357 square meters was
conveyed to the Plaintiffs, Defendant No.14, the Late Girdhar
Motwane and the late Maina Nanik Motwane.
(iii) Plot C admeasuring 793.263 Square meters was
conveyed to Defendant Nos.9 and 11.
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5. The Plaintiffs are the owners and residents of Plot B.
Defendant Nos.1 and 2 are the Developers who are developing Plot
No. A.
6. Defendant No.1 was granted an IOD to develop Plot A
on 17th December, 2009. By the year 2013, Defendant No.1's
construction had reached stilt + 2 Podiums + 10 storeys. As of
2019, the construction had reached 12th storey out of the proposed
stilt + 2 Podiums + 14 storeys.
7. The Plaintiff addressed a notice to the Municipal
Commissioner on 24th November, 2013 through their Advocates
wherein it is alleged that development plan had been submitted by
Defendant No.1 on the basis of larger property instead of plot A
alone. Though the developer of Plot A was to keep a minimum
distance of 1.5 meters from the shared perimeter / boundary of Plot
B, Defendant No.2 had kept open space around the new building at
Plot A but had calculated the said space from the walls of the
bungalow of Plot B and not from the common perimeter / boundary
line between Plots A and B on the North and West side. The
developer of Plot A had built a podium upto the boundary line
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which according to Plaintiffs, further open space was required to be
kept for any future redevelopment of Plot B. It was thus the
contention of the Plaintiffs that minimum open space had not been
kept. Further the Developer had failed to ensure provision of 15%
RG area on Plot A. The Plaintiffs have claimed that they were not
aware of the construction until recently when they claimed to have
learnt that the Developer had constructed a podium column at the
perimeter between Plot A and B.
8. It is the Plaintiffs case that though in September, 2009
the Plaintiffs had learnt that the then owners of Plot A had
negotiated with Defendant No.2 of redevelopment of Plot A and
that the Plaintiffs also learnt that owners for Plot No. A had entered
into agreement dated 16th February, 2010 with Defendant No.2 for
the said purpose, it was only around August, 2013 that the Plaintiffs
and Defendant No.14 observed that the Defendant Nos.1 and 2 had
carried out the aforementioned construction of podium column
touching the common perimeter between Plot A and B without
leaving requisite open space as provided under Development
Control Rules ("DCR"). The Plaintiffs and Defendant No.14 had
appointed their architect to conduct a site inspection to assess the
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situation and submit report. It was only upon receiving a report
dated 18th November, 2013 from their chartered architect that the
violations of DCR which the Defendant No.2 had committed was
brought to the knowledge of the Municipal Commissioner on 24th
November, 2013.
9. In 2015, Defendant No.1's architect applied to the
Municipal Commissioner for loading fungible FSI on the plot and
for condonation of deficiencies.
10. Pursuant to the application of Defendant No.1, the
Municipal Corporation of Greater Mumbai ("MCGM") published a
report dated 14th November, 2015 assessing plans submitted by
Defendant No.1. This report recorded that there was no imbalance
of FSI and necessary RG area had been deducted within Plot A. The
Commissioner had issued directions dated 19th May, 2015 to
recalculate open space from notional boundaries between Plot A
and Plot B in the North and West sides.
11. Pursuant to the Commissioner's directions for
recalculation of open spaces, there was a recalculation of open
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space by MCGM from notional boundary between Plot A and Plot
B in the North and the West and upon which MCGM observed that
there was open space deficiencies with the podium touching the
boundary only at one point. However, given due consideration of
the fact that the plot being odd and irregular shaped, the MCGM
rendered it fit for regularization under 64 B of DCR, 1991.
12. The MCGM further recommended that a
registered undertaking be obtained from the developer of Plot A to
disclose the fact to the prospective buyers that the building had
deficient open spaces and waiving any right to object to the
proposed development on the adjacent plot. The future occupants of
Plot A would also not object to the proposed development of Plot
with deficient open space. The Fire Officer has granted his no
objection to the development upon being satisfied that the fire
safety requirements were met. The report of the MCGM was
"approved as proposed" by the Commissioner.
13. The Plaintiffs were aggrieved qua the
reservation of RG area and the open space deficiencies between
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Plot A and Plot B would impair their commercial rights to
development.
14. It is to be noted that on 14th January, 2014, the
MCGM had issued stop work notice to Defendant No.2 alleging
unauthorized construction.
15. Thereafter, the MCGM upon its report dated
14th November, 2015 being approved and proposed by the
Commissioner had issued revised IOD on 22nd June, 2018 for
construction upto the 12th floor and on 26th October, 2018 issued a
commencement certificate for construction upto the 12th floor.
16. The Plaintiffs being aggrieved by the IOD
granted by the MCGM and IOD granted by the Commissioner filed
the present Suit on 5th March, 2019. The two main contentions in
the present Suit were that the first and second Defendants were
illegally attempting to usurp the rights of the owners of Plot B by
failing to keep a reservation of 15% RG area on Plot A apart from
the fact that plan which had been submitted by Defendant Nos.1
and 2 were of the larger property and thus RG area was being
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considered of the larger property. Next grievance of the Plaintiff
was that the first and second Defendants were liable to keep
minimum 1.5 meter open space from the shared perimeter /
boundary between Plot A and Plot B. However, Defendant Nos.1
and 2 had not left adequate open space of 1.5 meters on North and
West side of Plot A and had incorrectly calculated open space from
the walls of bungalow on Plot B instead of from common boundary.
The Plaintiffs contention was that they would suffer commercial
loss since they would be obliged to keep further requisite space on
their Plot B which they wished to develop.
17. It is the Plaintiffs contention that Defendant
Nos.1 and 2 had illegally submitted plans for approval with respect
to the larger property and not the subject Plot A which they were
developing though the larger property had been sub-divided. Thus
instead of considering Plot A's development, the MCGM and the
Commissioner considered the development potential of the larger
property.
18. The Plaintiffs had moved a Notice of Motion
No.1450 of 2019 for ad-interim relief. This Court had prima facie
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found that the Defendant Nos.1 and 2 had failed to keep requisite
open space on the North and West side on the proposed
development of Plot A near the boundary line shared with Plot B.
There was inadequate open spaces left by Defendant Nos.1 and 2
and that podium had been constructed on the West side of Plot A
touching boundary between both plots. That Defendant Nos.1 and 2
had submitted plans for redevelopment on basis of larger plot which
included plot B, though they had right to only use 795 square
meters of plot A. This Court had granted ad-interim relief in terms
of prayer clause (a) and (b) of the Interim Application upon
considering that there was hardly any space left by the Defendant
Nos.1 and 2 in Plot A for fire engine to pass between the building
coming up and boundary of plot A. This Court had considered that
if the prospective purchasers had investigated the title of Defendant
No.2 and inspected the site, they would know what Defendant No.2
was indulging in may not be wholly legal. Further, those people
who are prejudiced, may claim for return of money or
compensation. Accordingly, the first and second Defendant by the
ad-interim injunction order passed in terms of prayer clauses (a) and
(b) were restrained from carrying out further construction and
selling more flats to third parties. Defendant No.1 had already sold
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flats to certain purchasers including the intervenors in the Interim
Application (L) No.26802 of 2021.
19. The Defendants accordingly took a decision to
revise the building plans to meet the Plaintiffs allegations in the
Plaint. Under the revised plan, the Defendant Nos.1 and 2 proposed
to maintain open space of 1.5 meter in the North and West along the
boundary shared with Plot B. For creating the space, the existing
portion of the podium touching the West boundary line between
Plot A and Plot B was to be demolished. Defendant Nos.1 and 2
continued to retain the RG area of the proposed building within Plot
A's area. It had been noted by the MCGM in its report in 2015 that
RG area had been deducted from the gross area of Plot A and not
from the larger property. Further, six meter open space would be
maintained on the southern side of the plot for ingress / egress of
firefighting tenders / vehicles. In addition fireman's lift would be
installed which would open at requisite mid landing points on the
staircase.
20. Defendant Nos.1 and 2 moved Defendant No.8
(Fire Officer) for his assessment as to whether revised plans met
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fire safety norms and assured fire safety. On 7th July, 2020, the Fire
Officer issued no objection in respect of the revised plans and
certified that it assured fire safety. The Fire Officer took due notice
that under the MCGM Circular dated 6th August, 2019, the
provisions of 6 meters open space on the one side for a building
upto 70 meters in height was permissible, if there was a provision
for fire men's lift in the building. This was proposed in the revised
building plan of plot A. Accordingly, the Fire Officer accorded
satisfaction that provisions of 6 meters open space on the South side
of Plot A for ingress / egress of firefighting tenders and the
provision of a separate fire men's lift assured adequate safety from
fire and / or fire related hazards.
21. The Defendants put up their revised plans before
MCGM for their approval. In view of the MCGM expressing its
unwillingness to consider these plans on the premise that the Single
Judge's ad-interim Order prohibited them from processing the
revised plans, Defendant Nos.1 and 2 took out Interim Application
No.2439 of 2020 seeking directions against the MCGM to process
their revised plans. An order was also sought for vacation of the ad-
interim order. This Court by order dated 13th August, 2020
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observed that there was no restraint against the Municipal
Authorities from considering the revised plans and deciding the
application.
22. Mr. Sakhare learned Senior Counsel appearing
for the MCGM had stated that the Officer of the MCGM will decide
the application in accordance with the applicable norms / law at the
earliest possible. All contentions were kept open. The first and
second Defendants were granted liberty to renew their applications
in terms of prayer clause (b) should the Municipal Authority decide
their application favourably.
23. On 24th August, 2020, the Defendant Nos.1 and
2 submitted revised development plan to Municipal Corporation.
The Defendant's architect has submitted indicative report for
concessions to the MCGM. The major amendment to the plans as
per the revised plans were demolition of part portion of existing 2
level podiums on the south and west of Plot A in order to provide 6
meter clear open space. Further, demolition of part podiums on west
and north side of Plot A to provide minimum 1.5 meters open space
in those places. The refuge area was to be provided on staircase
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mid-level now relocated within building line at 6th and 13th floor,
separate Fire Man's lift with smoke check lobby proposed at mid-
landing level in the external staircase. Further, Defendant's
Architect sought condonation of open space deficiencies as well as
joint open space deficiencies. The Defendant's architect sought
condonation in view of the demonstrable hardship as under:-
a) The proposal was for redevelopment of an existing
building;
b) Vertical construction was not possible beyond height
restriction issued by the Civil Aviation Authorities.
c) The plot was odd shaped;
d) In order to make the project financially viable, it was
necessary to consume the admissible FSI;
e) The building had already come upto 12th floor.
24. Pursuant to architect's certificate as well as
revised development plans put up by Defendant Nos.1 and 2, the
MCGM issued a '4C' report. The report recorded that:-
a) The MCGM had scrutinized the plans through the
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Auto DCR system;
b) Thereafter, a site visit had been carried out to assess
the case for hardship.
c) Pursuant to these steps, the MCGM found that
hardships cited by Defendant No.2 were justified;
d) The MCGM further noted that the revised plans had
been certified by the Fire Officer for fire safety.
e) Measures proposed by the Architect for
neighbourhood safety, structural safety and health
safety and that the same could be taken care of by
appointing structural engineer, site supervisor and
licensed plumber.
25. The Commissioner approved the revised plans
on 6th November, 2021 by writing the remark "approved as
proposed".
26. On 20th November, 2020, the Defendant Nos.1
and 2 filed Interim Application No.6700 of 2020 for orders that
effectively seek vacation of the ad-interim order.
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27. The Plaintiffs thereafter amended their Plaint
and took out Interim Application No.463 of 2021 for reliefs
restraining the Defendants from acting upon and / or implementing
the revised plans and the latest 7th July, 2020 Fire No Objection
Certificate (NOC) and all preceding NOC's. Further, injunctive
relief was sought restraining Defendant Nos.1 and 2 from creating
any third party rights pursuant to the Revised Plans.
28. A preliminary objection has been raised as to the
maintainability of the Suit by the MCGM in the Written
Submissions filed by them dated 10th January, 2022. Mr. Sakhare,
learned Senior Counsel for Defendant Nos.3 to 8 - MCGM has
submitted that the objection to the maintainability of the suit is in
view of the bar under Section 149 of the MRTP Act. This bar will
apply to the challenge in the present Suit which is to the permission
granted by MCGM in its capacity as planning authority under the
MRTP Act 1966. The Civil Court does not have jurisdiction to go
into such challenge as raised in the present Suit. Reliance is placed
on the decision of this Court in Satish Vs. Dr. Gopal1 in this context.
Mr. Sakhare has further submitted that the Suit is not maintainable
1 2015(5) Mh.L.J.463
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in view of lack of statutory notice mandated under Section 527 of
the MMC Act, 1988. In this context, he has placed reliance on the
decision of this Court in Noor Mohd Vs. Mahi Housing and
Development Board2.
29. The preliminary challenge as to the
maintainability of the Suit has been dealt with by the Plaintiffs and
it is their contention that these objections are raised for the first time
and were not raised in the Interim Application No.2439 of 2020
filed by Defendant Nos.1 and 2. Thus the MCGM has waived their
objections on maintainability of the present Suit by their conduct.
The MCGM has neither at the ad-interim stage raised the
maintainability issue not did they file an application under Order 7
Rule 11 of the Code of Civil Procedure, 1908 for rejection of the
Plaint on this ground. The non-compliance of Section 527 of the
MMC Act, 1988 is not an inherent defect which takes away the
jurisdiction of this Court. Further, this Court had in Kishore S/o.
Ramalu @ Rambhau Telang vs. Municipal Commissioner, Nagpur
& Ors.3 held that despite the exclusion of jurisdiction of the Civil
Court under Section 149 of the MRTP Act, the grievance in relation
2 2014(1) Mh.L.J 92.
3 2015 SCC OnLine Bom 3168
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to failure to comply with statutory provisions can be examined by
the Civil Court. It is the further contention of the Plaintiffs that this
Court has held that the Suits required to be filed after one month
notice to the MCGM and / or within six months next after the
accrual of cause of action under Section 527 of the MMC Act does
not apply in case of acts of MCGM which have been done de hors
the provisions or in contravention of MMC Act. In support of this
contention reliance has been placed on decision of this Court in
Shraddha Associates, Pune & Anr. Vs. St. Patrick's Town CHS Ltd.
& Ors.4. The Plaintiffs contentions in the Plaint are that the MCGM
has acted de hors the provisions of the Act and thus the lack of
notice in writing of one month and / or the Suit being commenced
within six month next after the accrual of the cause of action
contemplated under Section 527 offers no assistance to the MCGM.
30. The Defendants have distinguished the decision
of this Court in Kishore (Supra) on the facts arising in that case
where notice under Section 53 of the MRTP Act was issued to
remove the unauthorized construction but time prescribed therein
was less than 30 days statutory period mandated under the Act.
4 2003(2) Mh.L.J. 219.
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Accordingly, this Court had held that it had jurisdiction to entertain
the Suit, since the notice was a nullity for giving less time for
removing the unauthorized development then the period prescribed
within the Act. Thus this case offers no assistance to the Plaintiffs
as it is based on the general principal of law that notwithstanding
expressed statutory bar, the Court would have jurisdiction to
entertain the Suit, wherein an action taken is nullity in law and / or
without jurisdiction. In the present case the decision of the
Commissioner of MCGM is not a nullity since he has acted within
the jurisdiction conferred under regulation 6(B) of the DCPR. The
decision relied upon by the Plaintiffs in Shraddha Associates
(Supra) has also been distinguished by the Defendants. It is
contended that the Commissioner has acted dehors the provision of
the Act or contrary thereto. In the present case the Corporation has
acted in accordance with the DCR, DCPR and the extant law.
Therefore, this decisions has no applications.
31. Prior to considering the issue of maintainability
of the Suit, it would be necessary to refer to the other submissions
of the Plaintiffs as well as the Defendants.
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32. Mr. Kanade, learned Counsel appearing for the
Plaintiffs has submitted that the impugned plans which include the
original sanctioned plans and revised plans submitted by Defendant
Nos. 1 and 2 to the Municipal Corporation of Greater Mumbai
contain congenital defects which cannot be cured or condoned and
are thus, ex facie illegal. He has submitted that the Defendant Nos.
1 and 2 despite knowing that the subject plot A was to be developed
and which subject plot admeasured 795 sq.mtr., submitted plans for
a multi storey building on the basis that they were to develop the
larger property admeasuring 3475 sq.meter. This was without the
knowledge of the Plaintiffs, as the Defendant Nos. 1 and 2 neither
informed the Plaintiffs nor obtained consent of the Plaintiffs for
submitting the plans showing the entire layout of the larger
property. It is an admitted position that the Defendant Nos. 1 and 2
proceeded with construction even beyond the commencement
certificate which led to issuance of stop work notice issued by the
MCGM in the year 2014.
33. Mr. Kanade has further submitted that had the
1st and 2nd Defendants sought permission on the basis of the
subject plot A alone, then the structure of the nature of the subject
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building, which has been carried out, would never have been
permitted. The original plans, if they had been prepared in respect
of the subject plot A, would not be compliant either with the
provisions of DCR 1991 or DCPR 2034.
34. Mr. Kanade has submitted that Regulation
37(31) provides for podium to be permitted in plot admeasuring
1000 meters or more. Since, the subject plot A admeasured only
795.176 sq. meters, the podium could not have been permitted to be
erected in the subject plot A. He has submitted that an illegal
building has been constructed on subject plot A which is almost
touching the common boundary between plot A and plot B on the
northern and western sides. Had the plans been submitted only in
respect of Plot A, it would never have been sanctioned as it would
be de hors the open space requirement of Regulation 41 of the
DCPR 2034 and fire safety requirements of Regulation 47 of DCPR
2034.
35. Mr. Kanade has further submitted that since the
original plans submitted were on the basis of the larger property,
consent/NOC of the neighbouring plot owners (including Plaintiffs
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and other co-owners of plot B and plot C) was necessary. In fact
even though NOC/consent of co-owners of plot B and C was
necessary, MCGM while sanctioning the original plans stated that
the proposal can be processed further in accordance with law,
without insisting on undertakings / NOC from the complainant.
However, this was made subject to verification of the facts that the
sanctioned proposal does not affect or imbalance the FSI of the
adjoining plot i.e. notionally sub-divided plot B owned by the
complainant i.e. Plaintiff No. 1 and provided 15% RG in proportion
to the plot under development does not in any way create any
imbalance in the RG of the portion owned by the Complainant.
Thereafter, the Municipal Commissioner has stated on the same file
that "We will go by the opinion of the law officer as given in the
matter. However, the open spaces shall be recalculated from the
boundaries of the notionally divided sub-plot." Inspite of the
directions of the Municipal Commissioner, neither was the NOC of
the co-owners taken nor were the open spaces recalculated from the
boundaries of the notionally divided sub-plot. In another report
dated 7th November 2015, the MCGM stipulated that Defendant
Nos. 1 and 2 were required to submit a registered undertaking to
disclose the fact to prospective buyers that the building had
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deficient open spaces and that the developer/occupants would not
object to development on the adjacent plot with deficient open
space. However, this has not been done by Defendant Nos. 1 and 2.
This can be seen from the proforma agreement for sale, uploaded by
the Defendants on the MahaRERA website which does not contain
such disclosure or stipulation.
36. Mr. Kanade has made submissions on the
revised plans, namely that the revised plans do not address or
alleviate the objections of the Plaintiffs. He has submitted that from
a comparison of the original sanctioned plan and the revised plan, it
becomes evident that the subject building remains in the same place
on the subject plot A and there are no changes in the open area on
the Northern side and only minimal changes on the western side. He
has submitted that the Municipal Corporation of Greater Mumbai
themselves acknowledged in the 4C Report that the original plan
had congenital defects. Therefore, it is impossible to rectify the
illegalities and deficiencies without demolishing the entire structure
due to the illegal construction on subject plot A of the Plaintiffs.
There is a fetter on the Plaintiffs' right to develop Plot B in the
future. This is due to lack of sufficient open spaces, as the building
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on the subject Plot A is almost touching the boundary between Plot
A and Plot B.
37. Mr. Kanade has further submitted that the
construction of a mechanised car parking on the south - side of the
Plot A does not provide, "clear open space" as contemplated under
Regulation 47(1)(B)(a) of DCPR 2034. The structure of the car
parking space will prevent fire engine access to the end of the
subject plot and is thus, a fire hazard and de hors the provisions of
DCPR 2034.
38. Mr. Kanade has highlighted from the plans
which include the original plans and the revised plans that clearly
there is deficient open space at the northern and western side of plot
A and that the building constructed on the subject plot A is at the
distance of 1.5 meters of plot B, whereas the extant law
contemplates for such a building that 9 meters clear open space be
left on one side accessible from the road for fire safety under
Regulation 47 of the DCPR 2034 and 6 meters open space on all
sides and the rear under Regulation 41 of the DCPR 2034.
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39. Mr. Kanade has submitted that the MCGM
failed to consider the objections raised by the Plaintiffs to the
revised plans submitted by the Defendant Nos. 1 and 2 and which is
in gross breach of the principles of natural justice. He has submitted
that the MCGM ought to have considered such objections and
representations filed by the Plaintiffs, prior to passing orders
condoning illegalities in the revised/further revised plans.
40. Mr. Kanade has placed reliance on the decision
of this Court in Rajendra Thacker & ors Vs. Municipal Corporation
of Greater Mumbai & ors.5 in the context of his submission that the
hardship to be considered by the Municipal Corporation of Greater
Mumbai is not only the hardship created by the builders /
developers/architects but the Commissioner is also required to take
into account the hardship which may be caused by the proposed
modification in the plans to other directly affected persons such as
residents, purchasers and neighbours. While exercising the powers,
the Municipal Commissioner shall be duty bound to take into
account such representations made by the residents, purchasers and
neighbours. The order passed by the Municipal Commissioner must
5 2004 SCC OnLine Bom 401
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indicate that he has applied his mind to the existence of
demonstrable hardships. It must also indicate that the commissioner
has applied his mind to ensure that the grant of such
modification/relaxation will not affect the health, safety, fire safety,
structural safety of the inhabitants of the building or
neighbourhood.
41. The Plaintiffs had informed the MCGM of the
violations of the DCR 1991/DCPR 2034 by Defendant Nos. 1 and 2
by letters dated 1st September 2020 and 5th October 2020.
However, MCGM did not respond to the said letters. The Municipal
Commissioner also did not consider the objections raised by
Plaintiffs while permitting such modifications / relaxations in the
plans submitted by the Defendant Nos. 1 and 2 in the 4C Report.
Thus, there has been violation of principles of natural justice as also
a breach of the law laid down by this Court in Rajendra Thacker
(supra).
42. Mr. Kanade has also made submissions on non
compliance of the open space requirements by Defendant Nos. 1
and 2 under Regulation 41 of DCPR 2034. He has submitted that
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revised plan and further revised plan do not provide for requisite
open space. Due to presence of a dead wall and lack of light and
ventilation at least 6 meters of open space is required to be kept
open on the sides and rear of the plot where proposed building is
between 32 to 70 meters in height and plot size is 1000 meters or
less. There is only open space of 6 meters proposed to be kept on
one side i.e. southern side which does not face plot B. Further, clear
open space of 6 meters is not maintained, as there is a proposed
mechanized parking at the western or the southern side. Such
deficiency in open area cannot be condoned, since it affects the
neighbouring buildings. Considering the concessions granted by the
Respondent Corporation, the illegal building in the subject plot A
will be at a distance of 1.5 meters of plot B whereas the extant law
contemplated for such building to leave 6 meters open space from
all the sides and rear.
43. Mr. Kanade has thereafter, made submissions on
non-compliance with the requirements under Regulation 47 of the
DCPR 2034 by Defendant Nos. 1 and 2 and which is in relation to
fire safety. He has submitted that the Defendant Nos. 1 and 2 are in
breach of Regulation 47(1)(B)(a) of the DCPR 2034 since they have
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not left the requisite 9 meters clear open space on at least one side
of the building accessible from the road for fire safety. He has
submitted that the administrative circular/transitional policy relied
upon by the Defendant Nos. 1 and 2 does not have statutory effect
and cannot override the provisions of the parent statue which is
DCPR 2034 and in particular Regulation 47 thereof. Defendant
Nos. 1 and 2 had made no case at all for condonation of deficiencies
in relation to the open space for fire safety. The Defendants'
reliance on the Circular dated 15th July 2019 is erroneous and
misplaced.
44. Mr. Kanade has further dealt with the issues
with regard to the locus of neighbouring plot owners to challenge
the construction by placing reliance upon the decision of this Court
in Fatima w/o Caetano Joao Vs. Village Panchayat of Merces 6. This
Court has held that a neighbour who is affected by an illegal
construction has an obligation in his favour based on the Suit for
perpetual injunction. This Court had therefore, found no difficulty
in holding that a neighbour would have right to maintain a Suit.
6 2000 (3) Mh. L.J. 624
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45. Mr. Kanade has made submissions with regard
to the intervenor applications by which the interveners seeking
impleadment as party Defendants in the Suit by submitting that the
intervenors are not bonafide purchasers for value without notice.
There is no privity of contract between the Intervenors and
Defendant Nos. 1 and 2 which can be fulfilled qua the Plaintiffs by
intervening in the present suit.
46. Mr. Ravi Kadam, learned Senior Counsel
appearing for the Defendant Nos. 1 and 2 has submitted that the ad-
interim order which had been passed by this Court on 26th August
2019 by which ad-interim relief had been granted in terms of prayer
clauses (a) and (b) of this Notice of Motion, was upon consideration
of the original plans. He has submitted that in view of the
subsequent facts as well as the submission by the Defendant Nos. 1
and 2 of the revised plan to the MCGM and the sanction thereof, the
premise on which the ad-interim order had been passed is no longer
available. He has submitted that as a matter of fact, the grievance of
the Plaintiffs expressed in the Plaint filed in the above Suit were
addressed in 2015 itself. The MCGM had granted revised
permissions on the basis of the Report dated 14th November 2015.
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In the said Report, it was mentioned that there was no imbalance of
FSI and necessary RG had been deducted within the subject plot A.
The Commissioner had issued a direction to recalculate open space
from the notional boundaries between Plot A and Plot B in the
North and the West. Pursuant to the directions, open space was
recalculated by the MCGM as directed. The MCGM observed that
there were open space deficiencies with the podium touching the
boundary at only one point thereon. However, the "odd and
irregular shaped nature" was a "demonstrable hardship" that
justified condonation under Regulation 64 [b] of DCR 1991. It was
further mentioned in the subject Report that the fire officer has
granted NOC to the development upon being satisfied with the fire
safety requirements.
47. Mr. Kadam has further submitted that in view of
the Plaintiffs' grievances having been resolved, there was no
necessity for the Plaintiff to file the Suit nearly four years thereafter.
He has submitted that the Defendant Nos. 1 and 2 had preferred an
Appeal from the ad-interim order passed by this Court on 26th
August 2019 and which Appeal (L) No. 465 of 2019 was admitted
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by Division Bench of this Court and liberty was granted to apply for
interim relief.
48. Mr. Kadam has submitted that in view of
commercial considerations and the obligation to complete the
development on subject plot A, the Defendant Nos. 1 and 2 took a
decision to revise the building plans to meet the Plaintiffs'
allegations in the Plaint. Under the revised plans, open space was to
be maintained of 1.5 meters in the North and West along with the
common boundaries between subject plot A and plot B. For creating
this open space, the existing portion for podium touching the west
boundary line between the subject plot A and plot B was to be
demolished. Defendant Nos. 1 and 2 were to retain the RG area of
the proposed building within the subject plot's area, 6 meters of
open space would be maintained on the South side of the subject
plot A for ingress / egress of fire fighting tenders/vehicles. A
fireman's lift would be installed which would open at requisite mid
landing point at the staircase. The revised plans took care of the
grievance of the Plaintiffs and hence, there was no subsisting basis
for continuing the injunction granted under the ad-interim order.
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49. Mr. Kadam has submitted that upon the
Defendant Nos. 1 and 2 submitting the revised development plan to
the MCGM for approval and these Defendants' Architects
indicative concession Report to the MCGM, a 4C Report on the
revised plans and the Report submitted by the Defendants' Architect
was issued by MCGM. In the Report submitted by the Architects of
Defendant Nos.1 and 2 condonation had been sought in view of the
hardship expressed which included the following :-
(i) The proposal was for redevelopment of an existing
building.
(ii) Vertical construction was not possible beyond height
restriction issued by the Civil Aviation authorities.
(iii) The plot was odd shaped as noticed in the previous
MCGM Report of 14th November 2015.
(iv) In order to make the project financially viable, it was
necessary to consume the admissible FSI.
(v) The building had already come upto 12th floor.
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50. The MCGM had considered the aforementioned
hardship submitted by the Defendants' Architect in the Report. The
MCGM found that the hardship cited by the Defendant No. 2 was
justified after conducting a site visit and scrutiny. Further, the
revised plan had been certified by the fire officer for fire safety. The
MCGM thus accepted that the measures had been proposed by the
Architect for neighbourhood safety, structural safety and health
safety and that the same could be taken care of by appointing
structural engineer, the supervisor and license plumber. The
Municipal Commissioner approved the revised plan on 6th
November 2020 as "approved as proposed".
51. Mr. Kadam has submitted that the MCGM had
rigorously vetted and scrutinized the 2nd Defendant's application
which was thereafter put up before the Municipal Commissioner
who has duly applied his mind. There is a discretion vested in the
Municipal Commissioner under Regulation 6(B) to allow cases of
demonstrable hardship defined in Regulation 2(36) of DCPR 2034.
Thus, discretion exercised by the Municipal Commissioner in the
present case has been exercised in circumstances that fall within the
said definition and in accordance with the policy set out under the
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2019 Circular. He has submitted that the Plaintiffs' reliance on the
decision of the Division Bench of this Court in Rajendra Thacker
(supra) is misplaced. In that case the Commissioner had condoned
illegalities in nearly 111 proposals without due application of mind.
It was in this context that this Court held that the Commissioner is
required to take into account the hardship which may be caused by
any proposed modification to the building plans which directly
affect residents, purchasers and neighbours. The representations of
such persons, if made, are required to be considered. He has
submitted that in the case of Rajendra Thacker (supra) there is no
mention of giving a right of hearing to neighbours such as the
Plaintiffs. To contend otherwise would make development or
redevelopment impossible since all neighbours would have a supra
veto right over property that does not belong to them. At the
highest, this Court in Rajendra Thacker (supra) suggests that the
rights of the neighbours to fire safety must not be compromised by
an arbitrary exercise of discretion. In the present case, the MCGM
and fire officer have acted in accordance with law. They have relied
upon the 2019 circular by which the MCGM issued transitional
policy and under which the they took cognizance of the Chief Fire
Officer's recommendation that fire safety would be assured and
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adequate for developments, between 32 and upto 70 meters in
height. The deficiencies in open space could be condoned by the
Commissioner if a case for demonstrable hardship was made out.
The Plaintiffs have accepted that the 2019 circular assures fire
safety since the same was not challenged.
52. Mr. Kadam has submitted that the Defendant
Nos. 1 and 2 have complied with the circular dated 15th July 2019
issued by the MCGM by providing in the revised plan clear open
space of 6 meters on the south side of plot A, which in the east
borders at 12.20 meters wide 14th Road and providing for fireman's
lift. The fire officer being satisfied with the provisions in the
revised plan for fire safety issued NOC on 7th July 2020 in
accordance with the transitional policy of the MCGM dated 15th
July 2019.
53. Mr. Kadam has therefore, submitted that there is
full compliance with Regulation 47 of the DCPR 2034. He has
submitted that the Plaintiffs' have confused the two Regulations i.e.
Regulation 41 with Regulation 47 of DCPR 2034. He has submitted
that Regulation 41 falls within Part VIII of the DCPR which
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prescribes "General Building Requirements". It is plainly of town
planning, a prescription concerned with a person's construction of
his building on his own plot. It has no bearing / relevance to urban
safety requirements. It is primarily concerned with ensuring that a
proposed building has retained open space for its occupants to have
light and ventilation. He has submitted that this Regulation is very
different from Regulation 47 which falls under Part IX which is
titled 'Urban Safety Requirement'. Regulation 47 provides for fire
protection requirements and which the Defendant Nos. 1 and 2 have
taken care of in accordance with the transitional policy Circular
dated 15th July 2011 issued by the MCGM. The fire officer has also
granted NOC upon being satisfied with the provisions made in the
revised plans submitted by the Defendant Nos. 1 and 2. The
MCGM has after considering factors such as neighborhood safety,
structural safety, health safety as well as demonstrable hardships
were satisfied by the Defendant Nos. 1 and 2 sanctioned the revised
plans. The Municipal Commissioner had exercised discretion under
Regulation 6(B) of DCPR 2034 upon considering the demonstrable
hardship which was as under:-
(i) Redevelopment proposal of an existing building.
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(ii) Necessary to consume the admissible FSI to make
the proposal financially viable.
(iii) Height restriction on the building from The Civil
Aviation department.
(iv) Work already completed up to the 12th floor.
54. Mr. Kadam in context of the discretionery power
exercisable by the Municipal Commissioner under Regulation 6(B)
of DCPR 2034 has relied upon the decisions of the Division Bench
of this Court in Sanjeev Kokil Vs. State of Maharashtra7 and
Rustomjee Central Park CHS Vs. MCGM & Ors.8
55. Mr. Kadam has further submitted that the
present Suit suffers from gross delay and laches as the Plaintiffs
have moved merely five years from the date of IOD and when the
proposed building on the subject plot A had already come upto 12
storeys. The Defendant Nos. 1 and 2 had expended significant sums
in putting up the construction. Flats have also been sold to the flat
purchasers who have been awaiting anxiously for possession of
7 2013 (2) MhLJ 107
8 Writ Petition (L) No.2317 of 2019, decided on 19th December, 2019.
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their homes. Thus, there is no conceivable basis for continuing the
existing ad-interim injunction against the subject plot A and from
creation of third party rights thereon. He has accordingly, submitted
that the ad-interim injunction order in terms of prayer clauses (a)
and (b) be vacated and the Defendant Nos. 1 and 2 be permitted to
complete the construction of subject plot A and/or create third party
rights thereon.
56. Mr. Sakhare, learned Senior Counsel appearing
for the Defendant Nos. 3 to 8 - MCGM has submitted that the
MCGM has in accordance with the provisions of DCR 1991 and
DCPR 2034 granted concessions sought for by the Defendant Nos.
1 and 2 in the original building plans as well as in the revised
building plans. He has submitted that the Municipal Commissioner
in exercise of powers under Regulation 6(B) of the DCPR 2034
sanctioned the revised plans on 6th November 2020 for the
proposed building comprising stilt + 1st and 2nd podium + 3rd to
17th upper floors. He has submitted that the sanctions granted from
time to time are in respect of the fire safety; open space deficiency;
permitting lift well, staircase lobby, fireman lift, smoke check lobby
free of FSI by charging premium and parking spaces. He has
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submitted that the fire NOC had been issued by the Chief Fire
Officer considering the revised plans. He has further submitted that
the deficiency in the open space has been considered by the MCGM
and the same has been granted qua Regulations 41(2), 41(4), 43 and
47(1) (B) (a) of DCPR 2034 after site inspection by concerned
officers of MCGM. Further, factors such as neighbourhood safety,
structural safety, health safety and demonstrable hardship arising in
the present case have also been considered. The other sanctions
namely, permitting the lift well, staircase lobby, fireman lift, smoke
check lobby free of FSI as per Regulation 31(1)(iv) of DCPR 2034
have been granted by charging premium. This is permissible under
DCPR 2034 and policy circulars dated 22nd August 2017 and 30th
January 2020. The concession in parking spaces is by allowing
mechanized parking tower of 12 parking spaces having height 14.70
meter at south west open spaces and to allowing 2 stack parking
protruding upto 0.50 meter in required 4.50 meter open spaces.
Considering the hardship and planning constraints, by the
Municipal Commissioner in exercise of powers under Regulation
6(B) of the DCPR 2034 has sanctioned the revised plans.
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57. Mr. Sakhare has accordingly submitted that the
concessions and sanctions have been granted by the MCGM and the
Municipal Commissioner to the original plans and revised plans are
in exercise of powers under the MRTP Act and in accordance with
the provisions of DCPR 2034, after proper scrutiny and application
of mind. Accordingly, the challenge canvassed by the Plaintiffs in
the above Suit apart from being not maintainable, are devoid of
merits and liable to be rejected.
58. Having considered the rival submissions, it
would first be necessary to consider the challenge to the
maintainability of the Suit raised by the Defendants. There is a two
fold challenge, one is with regard the Suit being barred under
Section 149 of the MRTP Act and the second is to the
maintainability of the Suit for non-compliance of notice
requirement under Section 527 of the MMC Act.
59. The objections which have been raised by the
MCGM qua the maintainability of the Suit is required to be
considered in the light of the fact that when the Interim Application
No.2439 of 2020 was moved by the Defendant Nos.1 and 2 seeking
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permission of this Court for having their revised plans considered
by Defendant Nos.3 to 7, the MCGM had not raised any objection
to the maintainability of the Suit either under Section 149 of the
MRTP Act or Section 527 of the MMC Act. In fact, this Court had
passed an order in the Interim Application clarifying that there was
no restraint against MCGM from considering the revised plans. The
MCGM were to decide the application in accordance with the
applicable norms / law and all contentions of the parties were kept
open. The first and second Defendants were granted liberty to
renew their application in terms of the prayer clause for permission
for the first and second Defendants to implement the revised plans
and carry out the construction on the subject property upon
approval of the same from MCGM. Thus it would appear that the
MCGM had waived their objection to the maintainability of the
present Suit. Further, the MCGM has not filed any application
under Order 7 Rule 11 of the Code of Civil Procedure, 1908 for
rejection of the Plaint.
60. It has also held by this Court in the decision
relied upon by the Plaintiffs, namely Kishore (Supra) that exclusion
of jurisdiction of a Civil Court under Section 149 of the MRTP Act
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is not applicable where the Plaint alleges failure on the part of the
MCGM to comply with statutory provisions. Such case can be
examined by the Civil Court. In the present case the Plaintiffs have
pleaded that the MCGM has failed to comply the statutory
provisions namely, the DCR 1991 and DCPR 2034. Mr. Sakhare
learned Senior Counsel for the MCGM had placed reliance upon the
decision of this Court in Satish (Supra). This decision was also
concerned with Section 149 of the MRTP Act. The Trial Court
whilst deciding the preliminary issue as regards the jurisdiction of
the Civil Court found that the Civil Court has no jurisdiction to go
into the validity of the permission granted by the Planning
Authority as per the sanctioned plans which finding was upheld by
this Court. However, considering the Plaintiffs' wider challenge in
the present Suit as to non-compliance by the MCGM of statutory
provisions and not merely challenge to the validity of the
permission granted by the MCGM, this Suit would be maintainable.
61. In so far as non issuance of the statutory notice
under Section 527 of the MMC Act which Mr. Sakhare has claimed
to be fatal to the present Suit and which warrants dismissal at the
very threshold, it would be necessary to note that the MCGM had
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not insisted on such statutory notice when the Interim Application
taken out by the Defendant Nos.1 and 2 in the present Suit being
Interim Application No.2439 of 2020 had been moved. This Interim
Application had been entertained by this Court and relief granted.
MCGM has thus waived such objection to the maintainability of the
Suit on the ground of lack of statutory notice.
62. The decisions relied upon by the Defendants are
inapplicable in the present case, considering the challenge in this
Suit which is filed on the premise that there has been a failure of
compliance with statutory provisions and / or acts done by the
MCGM de hors the statutory provisions. This can be examined by
the Civil Court.
63. Having considered the Suit to be maintainable, it
would be appropriate to consider the other rival submissions with
regard to the injunction sought for by the Plaintiffs restraining the
Defendant Nos.1 and 2 from carrying out construction of any kind
on subject plot A and from allotting flats and / or executing
agreements, arrangements or understandings with third parties,
inducting them into flats proposed to be constructed in the building
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on subject Plot A. It is necessary to note that by an ad-interim order
dated 26th August, 2019, the learned Single Judge of this Court
granted ad-interim relief in these terms. This was in light of the
sanction granted by the MCGM to the original plans submitted by
first and second Defendants. The learned Single Judge prima facie
found that the first and second Defendants had submitted plans in
relation to the larger property and not plot A alone, though the
larger plot had been sub-divided. There was not enough open space
which was left by the first and second Defendants and that the first
and second Defendants were attempting to usurp the rights of the
owners of Plot B by failing to keep a reservation of 15% RG area
and by considering RG area of the larger property.
64. The Plaintiffs had filed the present Suit in the
year 2019 on these grievances which were noticed by the learned
Single Judge of this Court in the ad-interim order. It is necessary to
note that the Plaintiffs had expressed these grievances after much
delay and laches as upto 12 storeys of the subject building had
already been constructed on the subject Plot A. The Plaintiffs are
the owners of the adjacent Plot B. Further, the MCGM had in the
year 2015 in its report dated 14th November, 2015 already noted
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that there was no imbalance of FSI and that necessary RG area had
been deducted from the gross area of plot A and not from the larger
property. Further, the MCGM had prior to issuance of the said
report considered the deficiencies in open spaces in Plot A's
development. The Municipal Commissioner had issued directions
on 19th May, 2015 to recalculate the open space from the notional
boundaries between Plot A and B in the North and West. The
MCGM had in its report considered that the boundary recalculation
of the open spaces from the notional boundary between Plot A and
B revealed that there were open spaces deficiencies with podium
touching boundary only at one point. However, in view of the Plot
A being of "odd and irregular shaped", the MCGM rendered it fit
for regularization under 64 B of DCR, 1991. The fire safety officer
had granted no objection to the developer upon being satisfied that
the fire safety requirements were met. The MCGM recommended
that a registered undertaking be obtained from the developer of
subject Plot A, waiving any right to object to any proposed
development on the neighboring plot. The future occupants of
subject Plot A would also waive their right to object to any
proposed development on Plot B with deficient open space. It
would thus appear that the Plaintiffs grievances were sufficiently
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addressed by the MCGM, four years before the Plaintiff filed the
present Suit.
65. The Defendant Nos.1 and 2 - Developers of Plot
A had taken the further step in deciding to revise their building
plans to fully meet with the Plaintiffs allegations in the Plaint. They
had accordingly in the revised plans proposed to maintain open
space of 1.5 meters in the North and West along the boundary
shared with plot B and for which the existing portion of the podium
touching boundary line between Plot A and Plot B was to be
demolished. Defendant Nos.1 and 2 were to continue to retain the
RG area of the proposed building within plot A's area. Further, six
meter of open space would be maintained on the southern side of
the plot for ingress / egress of firefighting tenders / vehicles. In
addition fireman's lift would be installed which would open at
requisite mid landing points on the staircase. It is necessary to note
that on 7th July, 2020, the Fire Officer was satisfied with the fire
safety as NOC has been issued in respect of the revised plans. This
was upon taking into consideration the MCGM circular dated 6th
August, 2019 which had permitted 6 meter open space on one side
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of the building upto 70 meters in height if there was a provision for
fire men's lift in the building.
66. The Defendant Nos.1 and 2 had taken out
Interim Application No.2439 of 2021 in the present Suit for
clarification from this Court that the ad-interim order dated 26th
August, 2019 does not preclude Defendant Nos.3 to 7 - MCGM to
process and approve the revised plans submitted by the Applicants.
This Court had clarified that there is no restraint against MCGM
from considering the revised plans and to decide the application.
The Applicants were granted liberty to renew their application in
terms of prayer clause (b) of the said Interim Application which
sought permission to implement the revised plans and carry on
further construction on the subject Plot A upon receiving approval
from the MCGM. In that case, all contentions were expressly kept
open.
67. The revised plans were thereafter submitted to
the MCGM and it is necessary to note that the Plaintiffs had filed
submissions opposing the revised plans being sanctioned. It was the
Plaintiffs contention that on a comparison of the original sanctioned
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plans and revised plans, it became evident that, the building remains
in the same place and there were no changes to the open area on the
northern side and minimal changes on the western side with the
construction of Plot A carried out by Defendant Nos.1 and 2 which
fettered the Plaintiffs right to develop Plot B due to lack of
sufficient open spaces. Further, there was submission with regard to
the proposal to construct mechanized car parking on the south side
of Plot A which does not provide clear open space as contemplated
under Regulation 47(1) (B) (a) of DCPR 2034. The structure of the
car parking space prevents fire engine access at the end of the plot
and is therefore, a fire hazard and dehors the provisions of DCPR
2034.
68. In Rajendra Thacker (Supra) this Court held that
hardship considered by the MCGM is not only the hardship created
by builders / developers / architects but the Municipal
Commissioner is also required to take into account the hardship
which may be caused by the proposed modification to other directly
affected persons such as residents, purchasers and neighbours. In
the event such persons make representations, the MCGM is duty
bound to take into account such representations and the order must
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indicate that the Commissioner has applied his mind to ensure that
the grant of such modification / relaxation will not affect the health,
safety, fire safety, structural safety of the inhabitants of the building
or neighbourhood. The MCGM had been informed by the Plaintiffs
vide letters dated 3rd September, 2020 and 5th October, 2020 of the
violations of DCR 1991 and DCPR 2034. It is the Plaintiffs
grievance that the MCGM had not considered the objections raised
by the Plaintiffs whilst permitting concessions in the 4C report.
69. In my view, reliance placed by the Plaintiff on
the judgment in Rajendra Thacker (Supra) is misplaced. In that case
the Commissioner had summarily condoned illegalities in nearly
111 proposals without due application of mind. Further, the law did
not define what constituted a 'demonstrable hardship'. The
Commissioner's discretionary power under DCR 1991 were
consequently unchecked and not canalized. The present case is very
different from that case. The MCGM has considered the
demonstrable hardship not only of the Defendant Nos.1 and 2 -
Developers of the subject plot A, but also of the other persons
concerned namely, residents, purchasers and neighbours. The
MCGM appears to have thoroughly vetted and scrutinized the first
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and second Defendants' application and thereafter has put it up
before the Municipal Commissioner who had duly applied his mind
to demonstrable hardship as defined under Regulation 2(36) of the
DCPR 2034. The discretion under Regulation 6 (B) of DCPR 2034
has been duly exercised in circumstances that fall within the
definition of demonstrable hardship and the policy set out under the
2019 Circular. I am prima facie of the view that the discretionary
powers exercised by the Municipal Commissioner as well as the
sanction of the original plans and revised plans by the MCGM and
Municipal Commissioner do not fall foul of the decision of this
Court in Rajendra Thacker (Supra). Further, the Chief Fire Officer
has also granted NOC upon considering fire safety not only of Plot
A but also of surrounding plots including Plot B.
70. There is no merit in the submissions of the
Plaintiffs that the non-conformity with the open space requirements
under Regulation 41 of DCPR 2034 could not have been condoned
by the MCGM and / or Municipal Commissioner. Regulation 41
falls within Part VIII of the DCPR 2034 which prescribes "General
Building Requirements" it is clear that the open spaces prescribed
under this Regulation is with regard to the open spaces required to
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be kept by the person / developer's construction of his building on
his own plot and does not have any bearing on urban safety
requirements. This is primary concerned with ensuring that the
proposed building has retained open space for the occupants therein
to have light and ventilation. It has no relevance to fire safety which
is provided in Regulation 47 which falls under Part IX of DCPR
2034 which prescribes "Urban Safety Requirements". It would thus
be open for the MCGM and Municipal Commissioner to grant
concessions regarding open space deficiencies by considering
demonstrable hardship of the the person / developer who has in the
present case constructed upto the 12th storey on the subject plot A.
71. I further find that there is no merit in the
submission of the Plaintiffs that there has been a violation of
Regulation 47 of the DCPR 2034 as the proposed building on Plot
A having height of more than 32 meters and upto 70 meters has not
kept clear open space at 9 meters at ground level on at least one side
accessible from the road side. I have taken into consideration the
circular issued by MCGM dated 15th July, 2019 which inter alia
provides for developments between 32 meter to 70 meter in height,
if a fireman's lift for use of firefighters to attend any fire is
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provided, clear open space of 6 meters at ground level on at atleast
one side may be allowed. This requirement has been met in the
revised plans sanctioned by the MCGM and the Municipal
Commissioner by the provisions of 6 meters open space upon the
southern side of Plot A which in the east borders a 12.20 meters
wide 14th Road and also on the south side of Plot A (other than road
side). There is also provision of fireman's lift. The Defendant has
not challenged the MCGM Circular dated 15th July, 2019 and
hence absent such challenge, the Plaintiffs cannot claim that the
MCGM circular cannot be followed as it is contrary to the DCPR
2034.
72. It is further necessary to note that the MCGM
has sanctioned the revised Plans by considering factors such as
neighbourhood safety, structural safety, health safety and the
demonstrable hardship, which includes:-
i) Redevelopment proposal of an existing building.
ii) Necessary to consume the admissible FSI to make
the proposal financially viable.
iii) Height restriction on the building from the Civil
Aviation Department;
iv) Work of the subject building already completed upto
the 12th floor.
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v) The shape of Plot A was odd and irregular.
73. There was submission with regard to the locus
of the Plaintiffs as a neighbour to file the present Suit. This Court in
Fatima (Supra) relied upon by Mr. Kanade has held that a
neighbour who claims to be affected by an illegal construction has
an obligation in his favour based on which he can maintain a Suit
for perpetual injunction. However, it is not necessary to go into this
issue as the Suit has been entertained and I have found the suit to be
maintainable.
74. I have also considered the submissions of Dr
Birendra Saraf, learned Senior Counsel for the Applicants /
Intervenors in Interim Application (L) No.28602 of 2021. I have
arrived at a finding that the revised plans sanctioned by the MCGM
and the Municipal Commissioner cannot be found fault with. Thus,
the further construction of the proposed building on subject plot A
cannot be held up. Accordingly, the grievance of the intervenors
have been addressed.
75. I have considered the decisions of the Division
Bench of this Court relied upon by Mr. Kadam namely Sanjeev
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Kokil (Supra) and Rustomjee Central Park CHS (Supra) in support
of his submission on exercise of power under Section 64(B) of
DCR 1991 equivalent to 6(B) of DCPR 2034. In Sanjeev Kokil
(Supra), the Division Bench of this Court held that the authority
which in this case is the Municipal Commissioner by merely
making endorsement of "approved as proposed" does not mean that
there is non-compliance of the requirement of recording reasons in
writing. It pre-supposes that he agreed with every aspect mentioned
in the proposal. Further, in Rustomjee Central Park CHS (Supra) it
was held that the Municipal Commissioner in considering whether
to condone the deficiency in open space must consider that in not
doing so there will be demonstrable hardship, in that the proposed
construction would not be possible. It is in fact for the Plaintiff to
show that as a result of the Commissioner's exercise of discretion
there is a slightest endangerment of heath safety, fire safety,
structural safety or public safety of the inhabitants. In my view, the
Plaintiffs have in the present case failed in showing this
requirement as laid down by the Division Bench of this Court.
Thus, in my prima facie view, the discretion exercised by the
Municipal Commissioner under Regulation 6(B) of DCPR 2034 in
NMS-1450-2019.DOC
sanctioning the revised plans by duly considering demonstrable
hardship cannot be found fault with.
76. Accordingly, the relief sought for in the above
Notice of Motion is not granted. The ad-interim relief granted in
terms of prayer clauses (a) and (b) of the Notice of Motion by ad-
interim order dated 26th August, 2019 stands vacated.
77. In view of rejection of the relief sought for in the
Notice of Motion, Interim Application (L) No.6700 of 2020 taken
out by Defendant Nos.1 and 2 has worked itself out and is
accordingly disposed of. Further, Interim Application 463 of 2021
taken out by the Plaintiff also does not survive and is disposed of.
Interim Application (L) No. 26802 of 2020 taken out by the
intervenors also does not survive and is disposed of.
78. The above Notice of Motion No.1450 of 2019 is
disposed of with no order as to costs.
( R. I. CHAGLA J. )
NMS-1450-2019.DOC
79. After pronouncement of the judgment, Mr.
Vishal Kanade, learned Counsel appearing for the
Applicants/Plaintiffs has applied for continuation of the ad-interim
relief granted by ad-interim order dated 26.08.2019 passed in the
above Notice of Motion No.1450 of 2019.
80. This is opposed by Mr. Kadam, learned Counsel
appearing for Defendant Nos.1 and 2 as well as by Mr. Sakhare,
learned Senior Counsel appearing for Defendant Nos.3 to 8. Mr.
Sakhare has stated that in any event the work on the subject
building cannot start until final permission is issued in pursuance
of the revised plans.
81. Considering the findings in the judgment dated
26.04.2022 and the fact that ad-interim order dated 26.08.2019 was
passed prior to the submission of the revised plans which received
the sanction of the MCGM and Municipal Commissioner, I find no
reason for continuing the ad-interim relief granted by the ad-interim
order dated 26.08.2019. Accordingly, the Application is rejected.
( R. I. CHAGLA J. )
