Bombay High Court
A. I. Kapadi And Ors vs City And Industrial Development ... on 12 December, 2023
Author: G.S. Patel
Bench: G.S. Patel
915-ASWP-11380-2015+.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11380 OF 2015
WITH
INTERIM APPLICATION NO. 2669 OF 2023
IN
WRIT PETITION NO. 11380 OF 2015
WITH
CIVIL APPLICATION NO. 13 OF 2023
IN
WRIT PETITION NO. 11380 OF 2015
WITH
INTERIM APPLICATION NO. 3265 OF 2019
IN
WRIT PETITION NO. 11380 OF 2015
AI Kapadi & Ors ...Petitioners
Versus
City And Industrial Development Corporation of ...Respondents
Maharashtra Ltd & Ors
WITH
WRIT PETITION NO. 631 OF 2023
AI Kapadi & Ors ...Petitioners
Versus
City And Industrial Development Corporation of ...Respondents
Maharashtra Ltd & Ors
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915-ASWP-11380-2015+.DOC
WITH
WRIT PETITION NO. 12714 OF 2015
WITH
CIVIL APPLICATION NO. 935 OF 2016
IN
WRIT PETITION NO. 12714 OF 2015
Rainbow Flat & Shop Owners Association & Ors ...Petitioners
Versus
State of Maharashtra, Through the Principal ...Respondents
Secretary & Ors
Mr Kiran Bapat, Senior Advocate, with Pralhad Paranjape & Rahul
Punjabi, for the Petitioners in WP/12714/2015 and for the
Respondent in WP/11380/2015 & WP/631/2023.
Mr SU Kamdar, Senior Advocate, with Mr Chetan Kapadia,
Senior Advocate, with Jagdish G Aradwad (Reddy), for the
Petitioner in WP/631/2023.
Mr Tejesh Dande, for the Respondent-NMMC.
Mr GS Hegde, Senior Advocate, i/b PM Bhansali, for the
Respondent-CIDCO, in all matters.
Mrs MP Thakur, AGP, for Respondent No. 3-State in all Writ
Petitions.
Mr Sandeep S Thakur, for Respondent No. 4 in WP/11380/2015 &
for the Applicant in IA/2669/2023 in WP/11380/2015.
Mr Umesh Patil, Deputy Engineer, NMMC, present.
CORAM G.S. Patel &
Kamal Khata, JJ.
DATED: 12th December 2023
PC:-
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915-ASWP-11380-2015+.DOC
1. After several rounds of hearings and filing of Affidavits it
seems to us that the entire controversy in this matter can be resolved
if we direct a site inspection and have the results of that site
inspection before us.
2. In Writ Petition No 631 of 2023 there are 18 Petitioners. They
purchased tenements in a building called F-4 on Plot No 6 in Vashi,
Navi Mumbai. The City and Industrial Development Corporation of
Maharashtra ("CIDCO") is the lessor/owner of the plot in
question. The 4th Respondent is the Rainbow Flat & Shop Owners
Association Condominium and is said to be an association of several
such buildings.
3. The entirety of the plot is not formally sub-divided. This
necessarily means that there are common open area spaces and that
the aggregate plot area is pro-rata apportioned between the various
buildings.
4. Building No F-4 on Plot No 6 was said to be in a dilapidated
condition. Redevelopment permission was sought and was granted
and a building of ground plus 16 floors has today come up.
5. The owners of tenements in the old building are not yet in
occupation inter alia on account of these litigations that are pending
since 2015/2019.
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915-ASWP-11380-2015+.DOC
6. The Association maintains through Mr Bapat, Learned Senior
Advocate, that the redeveloped building F-4 has consumed or
transgressed upon what Mr Bapat calls "common areas", i.e., the
construction by the Petitioners extends beyond the proportionate
area of that building. In particular, he maintains on the strength of a
report from CIDCO at pages 200 and 201 that there is an
impermissible lateral projection at the second floor level and that an
elevated portion of the car parking podium has projected outwards.
7. Stated in these generalities, the submissions are of very little
assistance and will not travel the necessary distance to an effective
disposal of the matter. Above all, we are mindful that we should not
be even inadvertently drawn into what are essentially disputed
questions of fact no matter how long these Petitions have been
pending before us.
8. In a matter of building construction, indeed, there should be
very little scope for dispute about what actually exists on site.
Whether what is built on site is or is not permissible and within the
limits of current governing planning regulations and rules may be a
separate controversy. There is no point in muddling the first with
the second.
9. It is not in dispute that the land use is mixed, that is to say,
both residential and commercial.
10. The aggregate plot area is 12536.27 sq mts. We are not
addressing ourselves to questions of built up area because, at least
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915-ASWP-11380-2015+.DOC
presently, that is not our concern. There are six buildings in all
numbered F-2 to F-7. The proportionate plot area of building F-4 as
per a revised Commencement Certificate ("CC") of 17th
November 2015 was 1269.848 sq mts. The building footprint area
was stated to be 1082.20 sq mts.
11. This necessarily means, on a simple arithmetical calculus,
that the Petitioners would have an area of 187.648 sq mts (1269.848
sq mts minus 1082.20 sq mts) in addition to the 1082.20 sq mts
footprint for their development, but this must necessarily take into
account the requirements for marginal and side open spaces as
mandated by planning law and regulations.
12. Mr Kamdar, Learned Senior Advocate, maintains that the
entire construction is within the pro-rated area of 1269.848 sq mts
after allowing for the municipal marginal open spaces, etc.
13. Mr Bapat's submission is to the contrary. He maintains that
even CIDCO in its assessment at pages 200 and 201 (and which is of
November 2022) noted that the required margins were not
maintained and further that there were projections of commercial
premises beyond the notional plot boundary, but these were on the
second floor. There are other observations (without sufficient
particulars) that the notional plot boundaries exceeded the CC.
14. This kind of a document is an unsafe and unreliable basis for
any judgment of this court. Further, nothing at all is achieved by one
side making assertions as to area consumption and the other side
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915-ASWP-11380-2015+.DOC
simply denying it. This presents the writ court with an utterly
intractable situation. Are we supposed to decipher from these
papers before us what has actually been done on site? That is an
impossible task even for a civil court unless and until it takes
evidence. In our writ jurisdiction, we will be able to do nothing
except prolong these matters, already prolonged for much too long,
unless there is some certainty about what exists on site.
15. Obviously, Mr Kamdar's clients have, or at least their
architects have, what are called "as built drawings". These would
have been required in any case for a CC and later for an Occupancy
Certificate ("OC").
16. Mr Dande represents the Navi Mumbai Municipal
Corporation ("NMMC"). His officers are present in court.
17. Mr Kamdar states that copies of the as built drawings
authenticated by the Petitioners' architects will be forwarded to the
office of the Assistant Director of Town Planning ("ADTP"),
NMMC by 2.00 pm tomorrow, 13th December 2023.
18. We direct the officers from the office of the ADTP and other
necessary officers of the NMMC to immediately inspect the site of
this construction for building F-4. They must assess:
(a) Whether any part of the building F-4 redevelopment is
beyond 1269.848 sq mts;
(b) Whether in the construction of Building F-4 the
necessary marginal open spaces have been maintained
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915-ASWP-11380-2015+.DOC
at the ground level, and, if not, the extent of the
shortfall;
(c) Correspondingly, whether at the ground floor level
there is an expansion of the construction beyond
1269.848 sq mts; and
(d) For completeness, whether there are any projections at
any higher floors that project beyond 1269.848 sq mts
of the notional plot boundary.
19. We do expect as much accuracy as possible in these
measurements given the short time frames. Above all, the officers of
the NMMC must report whether the required marginal open spaces
have been maintained or not maintained. We will assess the
remaining issues on the next date.
20. List these matters for orders on 14th December 2023 at 2.30
pm.
21. We permit the representatives of the Petitioners and also the
association to remain present on site at the time when the NMMC
officers make their visit. If any person on either side in any manner
obstructs the officers of the NMMC, we will not hesitate to
immediately take action in contempt against the individuals
involved.
(Kamal Khata, J) (G. S. Patel, J)
12th December 2023
