Anuradha Holdings Private ... vs Municipal Corporation Of Greater ...
2023 Latest Caselaw 3889 Bom

2023:BHC-AS:11866
                                                   2-AOST6130-2023AWIAST6132-2023.DOC

                                                                                        Santosh
                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CIVIL APPELLATE JURISDICTION


                           APPEAL FROM ORDER (ST) NO. 6130 OF 2023
                                              IN
                              NOTICE OF MOTION NO. 3112 OF 2019
                                              IN
                                    SUIT NO. 2182 OF 2019

               Anuradha Holdings Private Limited                            ...Appellant/
                                                                              Ori.Plaintiff
                                   Versus
               Municipal Corporation of Greater Mumbai
               & ors.                                    ...Respondents
                                          WITH
                      INTERIM APPLICATION (ST) NO. 6132 OF 2023

               Mr. Ravi Kadam, Senior Advocate, a/w Mr. Karan Kadam,
                    Vaibhav Bhure, Abhisek Adke and Ms. Vibha Joshi, i/b
                    Abhishek Adke, for the Appellant.
               Ms. Smita Tondwalkar, for the MCGM.
               Mr. Anandrao Pawar, Sub-Engineer, Building Proposal,
                    Vikhroli, present.

                                                       CORAM: N. J. JAMADAR, J.

RESERVED ON: 5th APRIL, 2023 PRONOUNCED ON: 19th APRIL, 2023 JUDGMENT:-

1. This appeal is directed against an order dated 14 th

February, 2023 passed by the learned Judge, City Civil Court,

Grater Mumbai in Notice of Motion No.3112 of 2019 in LC Suit

No.2182 of 2019, whereby the Notice of Motion taken out by the

appellant - plaintiff to restrain the respondent - defendant No.1,

Municipal Corporation of Greater Mumbai ("the MCGM") from

2-AOST6130-2023AWIAST6132-2023.DOC

taking action on the basis of the notice under Section 53(1) of

the Maharashtra Regional and Town Planning Act, 1966 ("the

Act, 1966") came to be dismissed.

2. For the sake of convenience and clarity the parties are

herinafter referred to in the capacity in which they are arrayed

before the City Civil Court.

3. The background facts leading to this appeal can be

summarized as under:

(a) The plaintiff is a company incorporated under the

provisions of the Companies Act, 1956. The plaintiff is the owner

of Unit Nos.701 to 712 on the 7th Floor and 801 to 812 on the 8 th

Floor of the building of the Universal Majestic Premises

Cooperative Society Limited - defendant No.2, situated at P.L.

Lokhande Marg, Mumbai, ("the suit premises"). Under

registered Agreements dated 2nd December, 2015 defendant No.2

sold and conveyed the entire 7th floor and 8th floor premises to

the plaintiff. Before entering into the agreements for sale,

defendant No.2 had already given the suit premises on leave and

license basis to Loreal India Private Limited. The Agreements for

Sale were subject to the said Leave and License Agreement

between defendant No.2 and Loreal India Private Limited. Thus

a tripartite agreement came to be executed between the plaintiff

2-AOST6130-2023AWIAST6132-2023.DOC

- defendant No.2 and Loreal India Private Limited on 4 th

December, 2015.

(b) The plaintiff thus asserts it had never been in actual

physical occupation of the suit premises as it was in the

occupation of defendant No.2 or Loreal India Private Limited. All

interior works and alterations with respect to suit premises were

carried out by defendant No.2. The latter had represented to

the plaintiff that the suit premises was constructed as per the

sanctioned plan and no alteration was carried without

permission of the concerned authority.

(c) On 14th March, 2018 the plaintiff was served with a

notice of inspection under Section 488 of the Mumbai Municipal

Corporation Act, 1988 ("the Act, 1988"). Upon enquiry, it

transpired that defendant No.2 had utilized the balance FSI for

causing alterations in the suit premises. Based on the

representations and assurances of defendant No.2, the plaintiff

claimed to have submitted a proposal dated 15 th November, 2019

with defendant No.1 - MCGM for development. The said

proposal was in the nature of regularization of the change of

user and amalgamation of certain areas only. There was no

horizontal or vertical extension beyond the approved frame of

the building.

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(d) The plaintiff claims that despite the requisite

compliances, defendant No.1 did not inform the plaintiff about

the fate of the proposal dated 15th February, 2019. Instead, the

plaintiff was again served with a notice of inspection dated 14 th

June, 2019. In response, a letter was addressed on behalf of the

plaintiff on 18th June, 2019 that the plaintiff had already

submitted the proposal for regularization. Yet, on 25 th June,

2019, defendant No.1 served a notice under Section 53(1) of the

Act, 1966 calling upon the plaintiff to restore the suit premises

as per last approved plan with respect to the said building.

(e) The plaintiff thus approached the City Civil Court

with the assertion that for want of rejection of the proposal

within 60 days of its submission i.e. 15 th February, 2019, the

said proposal is deemed to have been approved and no action

could have been taken on the basis of the impugned notice.

Allegations were also made against defendant No.2 for having

utilized balance FSI contrary to the representations made to the

plaintiff. The plaintiff thus sought a declaration that the

proposal submitted by the plaintiff on 15 th February, 2019 was

deemed to have been approved by defendant No.1, the impugned

notice dated 25th June, 2019 was illegal, bad in law, non-est and

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also to restrain defendant No.1 from taking any action based on

the impugned notice.

(f) In the said suit the plaintiff took out the Notice of

Motion seeking temporary injunction. Defendant No.1 resisted

the Notice of Motion by filing a written statement-cum-affidavit-

in-reply. It was contended that during the routine inspection on

22nd June, 2019, the officers of defendant No.1 noticed

unauthorized development in the suit premises. In the reply to

the notice under Section 53(1) the Act, 1966 the plaintiff has

admitted unauthorized development beyond the approved plan.

The plaintiff has not submitted requisite documents like

completion plan and occupation certificate despite ample

opportunity. The proposal submitted by the plaintiff was thus

treated to have been rejected on 15th July, 2019. On account of

the failure of the plaintiff to comply with the notice under

Section 53(1) of the Act, 1971 a speaking order came to be

passed on 21st January, 2020.

(g) Defendant No.2 also resisted the application

specifically controverting the contention of the plaintiff that the

unauthorized construction and alterations were carried out

while defendant No.2 or Loreal India Limited had been in the

occupation of the suit premises.

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(h) The learned Judge, City Civil Court, after appraisal

of the pleadings and documents on record and hearing the

parties was persuaded to reject the application opining that the

plaintiff failed to make out a prima facie case. The learned

Judge was of the view that, on the one hand, the plaintiff failed

to show that the development was carried out in conformity

with the rules and, on the other hand, the plaintiff failed to

demonstrate that the regularization proposal was complete in all

respect and in the prescribed format. Resultantly, the plaintiff

was not entitled to the benefit of the deeming provisions

contained in Section 45(5) of the Act, 1971.

4. Being aggrieved the plaintiff is in appeal.

5. I have heard Mr. Kadam, the learned Senior Counsel for

the appellant and Ms. Tondwalkar, the learned Counsel for the

defendant No.1 - MCGM. I have perused the material on record.

6. Mr. Kadam would urge that the learned Judge, City Civil

Court, was in error in holding that the plaintiff was not entitled

to the benefit of the deeming provision contained in Section

45(5) of the Act, 1971 on the ground that the plaintiff had

allegedly failed to furnish the requisite documents and

information and submit a complete proposal. Mr. Kadam

strenuously submitted that the trial court lost sight of the fact

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that the application of the plaintiff was not rejected at any point

of time. Inviting the attention of the Court to the provisions

contained in Section 45(3) of the Act, 1966 Mr. Kadam would

urge that rejection of an application under Section 45 of the Act

cannot be a matter of inference or assumption. Law enjoins that

every order refusing permission shall state grounds for refusal.

Moreover, the order is required to be communicated to the

applicant under Sub-section (4) of Section 45 in the manner

prescribed by regulation.

7. Banking upon the provisions contained in Sub-section (5)

of Section 45 Mr. Kadam would urge that default on the part of

the planning authority to communicate its decision to the

application within 60 days from the date of the receipt of the

application or within 60 days from the date of the receipt of

reply from the applicant in respect of any regulation made by

the planning authority, implies that the permission shall be

deemed to have been granted to the applicant on the date

immediately following the date of expiry of 60 days. Since there

is no express order of rejection of the proposal, the trial court

could not have non-suited the plaintiff at an interim stage,

urged Mr. Kadam.

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8. Ms. Tondwalkar stoutly submitted that the impugned

order does not warrant any interference. Laying emphasis on

the nature of the unauthorized development Ms. Tondwalkar

would urge that the plaintiff does not deserve any discretionary

relief. In any event, the provisions contained in the Act, 1971

cannot be so construed as a mandate to regularize the

development which has been carried out without obtaining

requisite permission and in violation of the governing

provisions. To bolster up this submission, Ms. Tondwalkar

placed reliance on a judgment of the Supreme Court in the csae

of Esha Ekta Apartments Co-operative Housing Society Ltd. and

Ors. vs. Municipal Corporation of Mumbai and ors.1

9. I have given careful consideration to the aforesaid

submissions. First and foremost, it is necessary to note the

nature of the unauthorized development. Under impugned

notice dated 25th June, 2019 the plaintiff was called upon to

restore the premises as per the last approved plan, namely

restore the 2 nos. of AHU 10 nos. of toilets and 1.52 mtrs. wide

passage leading to staircase and elevation projection by

removing office spaces on the 7th and 8th floor of the building

(the suit premises).

12013(5) SCC 357.

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10. In the context of the aforesaid nature of the alleged

unauthorized development, it is incontestible that the plaintiff

had made an application for approval for the development on

15th February, 2019. The controversy between the parties

revolves around the question as to whether the said application

came to be rejected in conformity with the provisions of law.

11. It is the case of the plaintiff that he had made all the

requisite compliances and yet its fate was not informed to him.

I In contrast, defendant No.1 contends the plaintiff failed to

furnish the requisite documents to process the application

despite sufficient opportunity.

12. At this stage, it may be apposite to note the stand of

defendant No.1 in the written statement. In paragraph 7(h) of

the written statement defendant No.1 contends that after

submission of the application by the plaintiff on 15 th February,

2019 the defendant had on several occasions asked the plaintiff

to make compliances in respect of the said proposal. In

paragraph 7(k) defendant No.1 further contends that on 15 th

July, 2019 the proposal of the plaintiff was returned back to the

Architect for compliance of completion plan/occupation

certificate and, thus, the proposal was treated to have been

rejected for want of compliance.

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13. It would be contextually relevant to note the proposal

status flow (Exhibit-Q page 550) contains the endorsement

dated 15th July, 2019, "you are requested to submit completion

plans/completion certificate as per last approved plans".

14. I am afraid the aforesaid endorsement can be construed as

rejection of the application submitted under Section 45 of the

Act, 1966. Firstly, neither the aforesaid instruction constitutes

an express rejection of the application nor it is the positive case

of defendant No.1 that it had rejected the application. What is

sought to be contended in the affidavit-in-reply is that the

return of the proposal is construed as rejection. This stand of

defendant No.1 cannot be countenanced in view of the express

mandate contained in Sub-section (3) of Section 45 of the Act,

1966 to communicate the grounds for refusal to grant

permission. It is not open for the planning authority to seek

documents and treat the very communication seeking the

documents as refusal of the permission, without anything more.

15. The trial court lost sight of the fact that there was no

express refusal to grant permission. It seems the fact that the

plaintiff did not produce the documents requisitioned by

defendant No.1 weighed with the trial court.

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16. Mr. Kadam would urge that the deeming provision

contained in Sub-section (5) of Section 45 came into play in the

absence of rejection within 60 days of the proposal. I find it

difficult to accede to the submission. The deeming provision

comes into play only when the development proposal for which

the permission was applied for was in conformity with the

requirement of the relevant development control regulations or

by laws or governing rules. To get the benefit of the deeming

provision the proposal has to be in conformity with the

requirements of development control regulations, complete in all

respect and in the prescribed form.

17. In the case at hand, the plaint proceeds on the premise

the unauthorized development has been carried out by

defendant No.2. At any rate, it is not the case of the plaintiff

that it had complied with the requisitions made by defendant

No.2 vide communication dated 15th July, 2019. Thus, the

plaintiff would not be entitled to claim the benefit of the

deeming provision.

18. In the totality of the circumstances, it would be

appropriate to provide an opportunity to the plaintiff to submit

a proposal for regularization of the development in the suit

premises so that the planning authority decides the same in

2-AOST6130-2023AWIAST6132-2023.DOC

accordance with law as the planning authority had not decided

the proposal submitted by the plaintiff on 15th February, 2019.

19. Ms. Tondwalkar, the learned Counsel for defendant No.1

submitted that the plaintiff, during the pendency of the

regularization proposal, cannot be permitted to use the area

which has been unauthorizedly developed. A strong reliance

was placed on an order passed by this Court in Appeal from

Order No.109 of 2023 on 16 th December, 2023, wherein this

Court had restrained the appellant - plaintiff from using 23

rooms which were unauthorizedly erected in the parking area on

the first floor of the premises.

20. Evidently, the said order came to be passed in the peculiar

facts of the case. The Court noted that the plaintiff therein had

been making application after application for regularization

and did not comply with the requisitions made by the Municipal

Corporation. Secondly, the Court found the unauthorized

development was of such a nature that a large parking area on

the first floor had been converted by the appellant - plaintiff into

23 rooms which were being used as a residential hotel and that

was a brazen illegality.

21. In the case at hand, as noted above, the unauthorized

development is in the nature of internal additions and

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alterations. There is qualitative distinction between these two

situations. I am thus not inclined to accede to the submission

of Ms. Tondwalkar that during the pendency of the

regularization application the plaintiff needs to be restrained

from using the unauthorizedly developed area.

22. For the foregoing reasons, the appeal deserves to be partly

allowed.

23. Hence, the following order.

:ORDER:

       (i)     The appeal stands partly allowed.

       (ii)    The impugned order stands quashed and set aside.

(iii) The appellant - plaintiff is permitted to make an

application for regularization of the development in

the suit premises within the period of four weeks

from today.

(iv) Defendant No.1 - MCGM shall take a decision on the

application for regularization of the development in

the suit premises within a period of four weeks from

the date of such application in accordance with law.

(v) The decision on such application alongwith reasons

be communicated to the plaintiff.

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(vi) If defendant No.2 takes a decision to reject the

application the same shall not be given effect to for a

period of one week from the date of the

communication of the said decision to the plaintiff.

(viii) No order as to costs.

(ix) In view of disposal of the appeal, interim application

does not survive and stands disposed.

[N. J. JAMADAR, J.]