Bombay High Court
Green Twig Estate Management Private ... vs M/S Amit Engineering Company Thr. Its ... on 19 December, 2023
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2023:BHC-AS:38295
Neeta Sawant 1/13 AO-849-2019-JR-FC
19 December 2023.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO 849 OF 2019
WITH
CIVIL APPLICATION NO. 1011 OF 2019
Green Twig Estate Management
Private Limited ..Appellant
V/s.
M/s. Amit Engineering Company
and Ors. ...Respondents
______
Mr. Mayur Khandeparkar a/w. Mr. Vikramjit Garewal, Mr. Umesh
Tawari, Rhythm Rathod i/by. Ms. Trishla Yelve, for the Appellant.
Mr. K.D. Jha a/w Mr. Anukul Seth, for Respondent No.1.
Ms. Smita Tondwalkar, for Respondent No.2-B.M.C.
CORAM : SANDEEP V. MARNE, J.
Resd. On : 13 December 2023.
Pron. On : 19 December 2023.
JUDGMENT :
1. This Appeal is filed challenging the order dated 1 July
2019 passed by the learned Judge of the City Civil Court, Mumbai,
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19 December 2023.
allowing Notice of Motion No. 80 of 2019 filed by Respondent
No.1/Plaintiff granting temporary injunction by restraining the
Municipal Corporation from acting on the Notice dated 20 July 2013
issued under the provisions of Section 351 of the Mumbai Municipal
Corporation Act, 1888 (MMC Act).
2. Appellant-Defendant No.1 is the landlord in respect of
Building Nos. 1227, 1228(1) and 1226 situated at Street Nos.35,
35A and 37, Ambalal Doshi Marg (Hamam Street), Fort, Mumbai-
400 023. The Appellant claims to have acquired the buildings by way
of registered Deed of Conveyance dated 21 June 2011.
3. Plaintiff/Respondent No.1 acquired tenancy rights in
respect of a shop located on the ground floor of the building 'Kirti
Chambers' at 37, Ground Floor, Ambalal Doshi Marg (Hamam
Street), Fort, Mumbai 23. It is Plaintiff's case that since acquisition of
the tenancy rights, there exists a loft/mezzanine floor consisting of
two wooden cabins having an access through internal wooden
staircase within the shop premises. The shop premises were
subsequently numbered as Shop No.3 by erstwhile landlord, M/s.
Sahib Enterprises. After acquisition of the ownership rights in respect
of the buildings, the shop premises are renumbered as Shop No.1.
Plaintiff carries on business in the name and style as 'M/s. Amit
Engineering Company' and deals with the import and export
business. It is Plaintiff's case that the landlord/Appellant intends to
redevelop the building and has acquired possession of substantial
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19 December 2023.
portion of the building. It is plaintiff's case that the Appellant is
making efforts for eviction of the Plaintiff from the suit shop and has
instituted L.C. Suit No. 233 of 2013 in the City Civil Court seeking
mandatory direction against the Municipal Corporation for removal
of loft/mezzanine floor. Plaintiff avers that the Appellant-landlord is
misusing the machinery of the Municipal Corporation for
pressurizing the tenants. That at the behest of the Appellant-
landlord, the Municipal Corporation issued Notice dated 20 July
2013 under the provisions of Section 351 of the MMC Act alleging
unauthorised construction of mezzanine floor admeasuring 2.85 mtrs
x 6.20 mtrs. having height of 1.70 mtrs. above and 1.85 mtrs. below
the mezzanine floor, including wooden partition cabins above the
mezzanine floor. The Notice was replied by the Plaintiff which led to
passing of Order dated 16 August 2013 by the Municipal
Corporation rejecting the reply and calling upon the Plaintiff to
remove the unauthorized construction of mezzanine floor and cabins.
The Plaintiff filed Writ Petition No. 2573 of 2013 before this Court
challenging the Notice dated 20 July 2013, in which order of status-
quo was passed on 23 August 2013. The petition came to be disposed
of by order dated 6 December 2018, granting liberty to the plaintiff
to file a civil suit challenging the notice. Plaintiff accordingly
instituted Long Cause Suit No. 3329 of 2018 before the City Civil
Court challenging the Notice dated 20 July 2013. The Petitioner also
filed Notice of Motion No. 80 of 2019 in the suit seeking temporary
injunction. The status-quo order granted by this Court in Writ
Petition No. 2573 of 2013 continued to operate during the decision
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19 December 2023.
of the Motion. By order dated 1 July 2019, the City Civil Court has
allowed Notice of Motion No. 80 of 2019 and has restrained the
Defendant/Municipal Corporation from acting on the Notice dated
20 July 2013 till disposal of the suit. Appellant-landlord is aggrieved
by the Order passed by the City Civil Court on 1 July 2013 and has
filed present Appeal.
4. Mr. Khandeparker, the learned counsel appearing for the
Appellant would submit that the City Civil Court has erred in
granting an order of temporary injunction in favour of the plaintiff as
erection of mezzanine floor and cabins is admittedly in violation of
the Development Control Regulations as well as the policy of the
Municipal Corporation. He would submit that the suit structure
cannot be regularized either as mezzanine floor or as a loft. He would
take me through the guidelines issued by the Municipal Corporation
vide Circular dated 8 August 2005 to demonstrate that the suit
structure cannot be regularised as mezzanine floor as the clear height
of the shop is less than 4.20 metres. Furthermore, the headroom in
the mezzanine floor under the guidelines is required as 2.2 meters,
whereas the headroom below the mezzanine floor of the notice
structure is 1.85 meters. According to him the structure also violates
the maximum permissible limit of floor area mezzanine floor, which
in the present case clearly exceeds 1/3 of the total floor area. Mr.
Khandeparkar would then take me through the guidelines for
regularization of the loft and would submit that the suit structure
cannot be regularized even as loft as the height of the loft above its
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19 December 2023.
floor level exceeds 1.52 mts (which is 1.70 mtrs. in in the present
case). He would further submit that under the guidelines, loft cannot
be used for any other purposes except for storage of goods, whereas in
the present case two cabins are constructed in the notice structure.
Mr. Khandeparker would further submit that in any event the suit
structure cannot be regularized under the policy dated 8 August
2005 in absence of consent of the landlord. That the Appellants are
not willing to give their consent for regularization of the notice
structure. He would therefore submit that when the structure is
incapable of being regularized, the City Civil Court has erred in
holding that the Plaintiff has right to seek regularization of the
structure. He would pray for setting aside the order of injunction
passed by the City Civil Court.
5. Per-Contra, Mr. Jha the learned counsel appearing for the
Plaintiff/Respondent No.1- Board, opposes the Appeal and supports
the Order passed by the City Civil Court. He would submit that the
protection in respect of the notice structure is existing for the last 10
long years and there is no reason why this Court should vacate the
same at such a distant point of time. He would urge that this Court
may instead direct decision of the suit rather than disturbing the
order of injunction which has been operating for last over a decade.
He would submit that the Municipal Corporation has framed Policy
dated 8 August 2005 specially for protecting the mezzanine floors
and lofts in respect of authorized structures and Plaintiff must be
given an opportunity to apply for regularization of the notice
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19 December 2023.
structure and the same cannot be demolished by misusing the
machinery of the Municipal Corporation. That the impugned notice
is issued at the behest of the landlord to assist him in ensuring
eviction of the Plaintiff in an indirect manner. That the notice
structure is regularizable as per the Policy dated 8 August 2005. He
would urge this Court to issue necessary directives either to the
Appellant to give his consent or to the Municipal Corporation to
process the regularization application without the consent of the
Appellant- landlord. He would pray for dismissal of the Appeal.
6. I have heard Ms. Tondwalkar, learned counsel appearing
for the Respondent-Municipal Corporation, who would support the
Notice dated 20 July 2013 issued by the Municipal Corporation.
7. Having considered the submissions canvassed by the
learned counsel appearing for the parties, it is seen that the City Civil
Court has passed an order of temporary injunction restraining the
Municipal Corporation from acting on the Notice dated 20 July
2013. The notice structure stands protected on account of order of
status-quo initially granted by this Court and later on account of
order of temporary injunction granted by the City Civil Court. The
notice structure stands protected for over a decade. The issue is
whether it would be prudent to disturb the same at such a distant
point of time.
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19 December 2023.
8. Mr. Khandeparkar has strenuously submitted that since
the notice structure is ex-facie illegal and not capable of being
regularized, the interim injunction granted by the City Civil Court
must be vacated. True it is that the relief of temporary injunction
should be in the aid of final relief, which can be granted in favor of a
party. It is Mr. Khandeparkar's contention that since the Plaintiff is
not likely to succeed in the suit, the temporary injunction would not
be in the aid of final relief grantable in Plaintiff's favor. For this
purpose, Mr. Khandeparkar has taken me through various clauses of
the Policy Circular dated 8 August 2005 to demonstrate that the
notice structure is incapable of being regularized.
9. Perusal of the Circular dated 8 August 2005 indicates
that the Municipal Corporation resolved on 14 August 1997 vide
Resolution No.853 for regularizing the unauthorized mezzanine
floors/lofts constructed prior to 15 August 1997 in the existing
authorized buildings. The State Government, however, did not grant
its concurrence to the resolution of the Municipal Corporation and
instead suggested that the Municipal Corporation should undertake
modification of the Development Control Regulations, 1991 (DCR
1991) for exempting the area of mezzanine floors constructed up to
15th August 1997 from FSI computation. Accordingly, a
modification proposal was forwarded by the Municipal Corporation
to the State Government under the provisions of Section 37 of the
Maharashtra Regional and Town Planning Act, 1966 for sanction of
the State Government. The State Government approved the said
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19 December 2023.
Modification vide Notification dated 31 May 2005 and Regulation
38(6)(i) of the DCR 1991, came to be modified with effect from 31
May 2005 as under.
Requirements of parts of buildings-
(6) Mezzanine Floor- (i) Size:-The aggregate area of mezzanine floor in any
room shall not exceed 50% of the built up area of that room. The size of
mezzanine floor shall not be less than 9.5 sq. mt. if it is used as a living room.
The area of the mezzanine floor shall be counted towards FSI. Provided,
however, that in existing authorized buildings having no balance FSI, area of
the mezzanine floors constructed prior to 15th August, 1997 without approval
may be exempted from FSI with special permission of the Commissioner
subject to the terms and conditions and payment of premium as may be
specified by the Commissioner.
NOTE:- Lofts having head room more than 1.5mt. above, it shall be treated as
mezzanine floor.
10. Thus the modified DCR 38(6)(i) permitted exemption of
mezzanine floors constructed prior to 15 August 1997 from FSI
computation subject to special permission of the Municipal
Commissioner and upon payment of premium as specified by him.
To bring into effect the provision of DCR 38(6)(i) authorising the
Municipal Commissioner to grant such permission and for
determination of amount of payment of premium, the Municipal
Corporation formulated Policy vide Circular dated 8 August 2005 for
regularization of mezzanine flats and lofts constructed prior to 15
August 1997 in existing authorized buildings.
11. The policy envisages that mezzanine floors and lofts
existing prior to post April 1962 in non-residential structures and
Neeta Sawant 9/13 AO-849-2019-JR-FC
19 December 2023.
prior to 17 April 1964 in residential structures would be treated as
tolerated. Thus no permission was needed for regularization of
mezzanine floats and lofts existing prior to 1 April 1962/17 April
1964. So far as mezzanine floors and loft constructed prior to 15
August 1997 are concerned, the policy provides for their
regularization, subject to fulfilment of the prescribed guidelines and
conditions. Separate guidelines and conditions are prescribed for
regularization of mezzanine floors and regularization of lofts. It
would be necessary to reproduce some of the relevant guidelines for
regularization of mezzanine floors and lofts :
(a). RULES (GUIDELINES) FOR REGULARISATION OF
MEZZANINE FLOORS :
(i) The clear height of the room in which the mezzanine floor is
constructed shall not be less than 4.20 mts.
ii) Head room under the mezzanine floor shall not be less than 2.2 mt
iii) Height of the mezzanine floor above, its floor level shall not be less
than 1.52 mts.
iv) The mezzanine floor shall not be permitted in an attic noon and
no such mezzanine floor constricted in an attic floor shall be
regularised.
v) The floor area of the mezzanine floor shall not exceed 1/3rd of the
total floor area of the room if the width of such room is less than 3.0
mt. and the floor area of mezzanine floor shall not exceed half the
total area of the room if the width of the room is more than 3 mts.
vi) A certificate from registered Structural Engineer regarding
structural stability of the existing building and the mezzanine floor
should be invariably obtained.
vii) There should be adequate light and ventilation for such
mezzanine floor.
Neeta Sawant 10/13 AO-849-2019-JR-FC
19 December 2023.
viii) A mezzanine floor shall be atleast 1.80 mts away from the front
wall of the room having main entrance to the room.
ix) The existing mezzanine floors which do not fulfill the above
guidelines shall be brought in conformity with the same before
regularisation.
x) In cases where F.S.I is not available in existing authorized bldg, area
of the mezzanine floors constructed prior to 15th August, 1997
without approval may be exempted from FSI with special permission
of the Commissioner subject to the terms and conditions and
payment of premium as may be specified by the Commissioner as per
modified Regulation No.38(6)(i) amended on 31st May, 2005, Such
mezzanine floors shall be regu by charging premium as given below:
Premium Built-up area.of mezzanine floor X premium rate.
Premium rates shall be taken as approved by M.C. from time to time
and as circulated by Development Plan Department.
xi) Where F.S.I. is in balance, regularisation may be done by
computing the built- up/of mezzanine floors In F.S.I and further
subject to recovery of 15% of full premium to be worked out as per
(III)(a)(x) above.
xii). The requirement of C.F.0. shall be complied with.
xiii) The size of mezzanine floor shall not be less than 9.5 sq.mt. if it
is used as a living room.
RULES (GUIDELINES) FOR REGULARISATION OF LOFTS :
i) The head room under the loft shall not be less than 2.2 mts.
ii) The height of the loft above its floor level shall not exceed 1.52 mts.
Beyond this height, the loft will be considered as mezzanine floor.
iii) The floor area of the loft shall not exceed 1/3rd of the total floor
area of the room If the width of the room is less than 3 mts and if the
width of the room is 3 mts. or more, the said area of the loft shall not
exceed half the total floor area of the room.
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19 December 2023.
iv) A certificate from registered Structural Engineer regarding the
structural stability of the existing building and the loft shall be
invariably obtained.
v) The loft shall not be used for any other purpose except for storage of
goods which are non-hazardous and non-flammable and subject to
compliance of requirements of C.F.O.
vi) A loft shall be 1.80 mtrs, away from the front wall of the room.
vii) The existing lofts which do not fulfill the above guidelines shall be
brought in conformity with the same before regularisation.
viii) Subject to fulfillment of the aforesaid conditions, a loft may be
regularised by levying composition charges as given below:-
Composition charges Area of the loft X 10% of the premium rate.
Premium rate to be considered for this purpose shall be as given under
Condition (111)(a)(x) above.
12. Mr. Khandeparkar has strenuously attempted to
demonstrate that the notice structure cannot be regularized either as
mezzanine floor or as loft. However clause-(vii) above provides that
the existing mezzanine floors which do not fulfil the guidelines shall
be brought in conformity with the same before regularization. Thus
the Policy does envisage regularization of only those mezzanine floors
which conformed to the guidelines, but it also allowed necessary
changes to be effected in the existing mezzanine floors so as to bring
then in conformity with the conditions of the guidelines. Another
important provision in the guidelines is in Clause VII, which provides
that in case of demonstrable hardship, any of the prescribed
conditions can be relaxed with specific sanction of the Municipal
Commissioner.
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19 December 2023.
13. There is no doubt to the position that the notice structure
has been in existence prior to 15 August 1997. Reference in this
regard can be made to Municipal Corporation's letter dated 20 April
1990 issued for the purpose of seeking rent details for assessment
purposes in respect of the shop premises. The said letter clearly
notices existence of loft inside the shop. In that view of the matter, I
do not find any patent error being committed by the City Civil Court
in prima-facie holding that plaintiff has rightly to apply for
regularization under the Circular dated 8 August 2005. Whether the
Municipal Corporation will allow regularization or not, is something
which cannot be foreseen as of now. There also appears to be
impediment in the form of consent of landlord in filing application
for regularization. Whether regularization of mezzanine floors and
lofts existing in the tenanted structures would depend on whims and
caprices of a landlord is something which the City Civil Court will
decide at the time of final disposal of the suit. The Court will decide
whether a mezzanine floor or loft which is otherwise regularizable
under the guidelines, should be demolished if the landlord refuses
consent for filing regularisation application. As of now, I do not find
it appropriate to disturb the interim protection existing in favor of the
plaintiff for over a decade. Even the temporary injunction granted by
the City Civil Court is operating since 1 July 2019, i.e. for last more
than four years. In such circumstances, it would be prudent for the
parties to go for trial of the suit rather than disturbing the temporary
injunction at this stage.
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19 December 2023.
14. I therefore do not find any valid reason to interfere in the
order of temporary injunction passed by the City Civil Court. Appeal,
being devoid of merits, is dismissed without any orders as to costs.
15. With dismissal of the Appeal, the Civil Application
pending therein does not survive. The same also stands disposed of.
SANDEEP V. MARNE, J.
