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The Companies Act, 1956
Section 53 in The Companies Act, 1956
The Indian Partnership Act, 1932
Section 53(1) in The Companies Act, 1956
Section 52 in The Companies Act, 1956

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Bombay High Court
M/S. Abhishek Builders And vs The City And Industrial ... on 11 June, 2012
Bench: A.M. Khanwilkar, S. S. Shinde

1 wpst10937.12

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.

CIVIL APPELLATE JURISDICTION

WRIT PETITION ST. NO.10937 OF 2012

1. M/S. ABHISHEK BUILDERS AND

DEVELOPERS, a Partnership firm,

duly registered under the provisions of

Indian Partnership Act, 1932 having its

office at 107, 109 Central Facility

Building (Phase-II), above State Bank

of Saurashtra, Sector-19, Vashi,

Navi Mumbai-400 705.

2. SHRI KARMAN RAGHU PATEL,

Adul, Indian Inhabitant,

Partner of 1st Petitioner having his

office at Plot Nos. 79 & 80, situate at

Sector 20, Kharghar, Navi Mumbai. :- Petitioners

versus

1. The City and Industrial Development

Corporation of Maharashtra Limited, a

Company incorporated under the

Companies Act, 1956, having its

Registered office at Nirmal, 2nd floor,

Nariman Point, Mumbai 400 021

and having its Head office at CIDCO,

CIDCO Bhavan, CBD-Belapur,

Navi Mumbai-400 614.

2. The Managing Director & Vice Chairman,

The City and Industrial Development

Corporation of Maharashtra Limited,

having registered office at Nirmal,

2nd floor, Nariman Point, Mumbai

400 021 and having its Head Office

At CIDCO Bhavan, CBD-Belapur,

Navi Mumbai-400 614.

2 wpst10937.12

3. The Additional Town Planning Officer,

CIDCO having his office at 4th floor,

Raigad Bhavan, CBD-Belapur,

Navi Mumbai.

4. STATE OF MAHARASHTRA,

Through Government Pleader,

Appellate Side (Writ Cell), having its

Office at Room No.4, Ground Floor,

PWD Building, High Court Campus,

High Court, Mumbai-400 032. :- Respondents

WITH

WRIT PETITION NO. 2439 OF 2012

1. Mrs. Pooja V. Takhtani,

Age: 48, Occupation Self Employed,

R/A: flat No. 102, Mangal Raksha,

Saint John Road, Near Gold Gym.,

Bandra (West), Mumbai-400 050.

2. Mr. Amit S. Gupta,

Age: Adult, Occupation : Business,

R/A: Sector - 21, Nerul, Navi Mumbai. :- Petitioners

versus

1. The City and Industrial Development

Corporation of Maharashtra Limited, a

Company incorporated under the

Companies Act, 1956, having its

Registered office at Nirmal, 2nd floor,

Nariman Point, Mumbai 400 021

and having its Head office at

CIDCO Bhavan, CBD-Belapur,

Navi Mumbai-400 614.

2. The Additional Town Planning Officer,

CIDCO having his office at 4th floor,

3 wpst10937.12

Raigad Bhavan, CBD-Belapur,

Navi Mumbai.

3. M/S. ABHISHEK BUILDERS AND

DEVELOPERS, A Partnership firm

duly registered under Indian Partnership

Act, 1932 having its office at Plot

Nos. 79 & 80, Sector-20.

Kharghar, Navi Mumbai.

4. State of Maharashtra,

Through Government Pleader,

Appellate Side (Writ Cell) Having its

office at Room No.4, Ground Floor,

PWD Building, High Court Campus,

Mumbai-32. :- Respondents

WITH

WRIT PETITION NO. 2045 OF 2012

Bhupesh Gupta,

Age: Adult, Occupation Business,

R/A: flat No. A/3, Landmarg

Society, Sector-14, Vashi,

Navi Mumbai. :- Petitioner

versus

1. City and Industrial Development

Corporation of Maharashtra Limited, a

Company incorporated under the

Companies Act, 1956,having its

registered office at Nirmal, 2nd floor,

Nariman Point, Mumbai 400 021

and having its Head office at

CIDCO Bhavan, CBD-Belapur,

Navi Mumbai-400 614.

2. The Additional Town Planning Officer,

4 wpst10937.12

CIDCO having its office at 4th floor,

Raigad Bhavan, CBD-Belapur,

Navi Mumbai.

3. M/S. ABHISHEK BUILDERS AND

DEVELOPERS, A Partnership firm

duly registered under Indian Partnership

Act, 1932 having its office at Plot

Nos. 79 & 80, Sector-20.

Kharghar, Navi Mumbai.

4. State of Maharashtra,

Through Government Pleader,

Appellate Side (Writ Cell) Having its

office at Room No.4, Ground Floor,

PWD Building, High Court Campus,

Mumbai-400 032. :- Respondents

Mr. S.K. Shinde, Advocate with Mr. Vipin Kasle, Advocate for the Petitioners in W.P. Nos. 2045/2012 and 2439/2012. Mr. R.D. Soni, Advocate with Mrs. Meena Sharma, Advocate i/b Ram & Co. for petitioners in WP (St) No.10937/2012.

Mr. G.S. Hegde, Advocate with Mr. C.M. Lokhesh & Mr. Kamlewsh Ghumre, Advocates for Respondent Nos. 1 & 2 CIDCO. Mr. C.R. Sonawane, AGP for Respondent No. 4 State.

CORAM: A. M. KHANWILKAR &

S.S. SHINDE, JJ.

Reserved on :- 9th May, 2012

Pronounced on :- 11th June, 2012

JUDGMENT :- (Per S.S. Shinde, J.)

. Rule. By consent, rule made returnable forthwith. Counsel

for respective respondents waive notice. By consent, heard finally

forthwith.

5 wpst10937.12

2. Writ Petition (St.) No. 10937 of 2012 is to issue a Writ of

certiorari or any other appropriate Order or directions in the nature of

writ of certiorari thereby quashing and/or setting aside the impugned

order dated 9th April, 2012 passed by the respondent No. 2 rejecting

the petitioners' proposal for regularization. (Exhibit-A). The petitioners

have sought further relief to issue a Writ of Mandamus or any other

appropriate writ, order or direction in the nature of Writ of Mandamus

thereby seeking directions to the respondents to reconsider the

proposal for regularization in respect of the petitioners' property i.e.

building known as Green Heritage, situated at Plot Nos. 79 & 80,

Sector-20, Kharghar, Navi Mumbai, on the basis of the material placed

on record and accept the same in accordance with law.

3. The first petitioner is a Partnership Firm. The second

petitioner is one of the Partners of the first petitioner firm. The first

respondent is the Town Planning Authority declared for the area

designated as a site for the new Town of New Mumbai by the

Government of Maharashtra in exercise of its power under sub-section

1(3)(A) of Section 113 of the Maharashtra Regional and Town Planning

Act, 1966 (For short, "MRTP Act, 1966"). The second respondent is the

Managing Director and Vice-Chairman of the first respondent Company. 6 wpst10937.12

The third respondent is Officer of the first respondent and is

performing and exercising powers as vested under him in the MRTP

Act, 1966. The respondent Nos. 1, 2 and 3 being the new Town

Planning Development Authority declared for the new Town of Navi

Mumbai by the Government of Maharashtra is covered under the

definition of "State" under Article 12 of the Constitution of India and

amenable to the jurisdiction of this Court.

4. The challenge of the petitioners is to the order dated 9th

April, 2012 passed by the respondent No. 2 thereby rejecting/refusing

the proposal dated 22nd March, 2012 submitted by the petitioners for

regularization of some irregularities of the structure in respect of the

building Green Heritage constructed on Plot Nos. 79 & 80, situated at

Sector-20, Kharghar, Navi Mumbai. The other two connected writ

petitions are also arising out of the same subject matter impugned in

this petition in relation to the property mentioned hereinabove and

therefore, all the petitions are being heard together.

5. It is the case of the petitioners that, by Agreement to Lease

dated 22nd June, 2005, the first respondent granted license to the first

petitioner to enter upon land bearing Plot NO. 79 in Sector-20 of 7 wpst10937.12

Kharghar, Navi Mumbai admeasuring 2890.13 square meters for the

purpose of erecting a building or buildings to provide for commercial

cum residential purpose on the terms and conditions contained

therein. By another Agreement to Lease dated 6th September, 2005, the

first respondent granted license to the first petitioner to enter upon

land bearing Plot No. 80 in Sector-20 of Kharghar, Navi Mumbai

admeasuring 3856.53 square meters for the purpose of erecting a

building or buildings to provide commercial cum residential purpose on

the terms and conditions contained therein. The copies of the said

agreements are placed on record by the petitioners.

6. It is further case of the petitioners that, the first respondent

made application to the third respondent for Development Permission

for residential cum commercial buildings to be erected on Plot Nos. 79

and 80, Sector-20, Kharghar, Navi Mumbai. By letter dated 23rd

January, 2006, the first respondent granted Development Permission to

the first petitioner to construct residential cum commercial building on

the said plots and forwarded Commencement Certificate as required

under Section 45 of the MRTP Act, 1966.

7. It is the case of the petitioners that, the third respondent 8 wpst10937.12

in continuation of the first commencement certificate dated 23rd

January, 2006 issued another commencement certificate dated 15th

June, 2006 for carrying out development work on the said building.

8. According to the petitioners, as per sanctioned plan and as

per the terms and conditions levied by the respondents, the petitioners

have started construction work on the said plot. By letter dated 10th

May 2006, the Architect of the petitioners certified the completion

work up to the plinth level for Cafeteria for residential cum commercial

building on the said plots. By letter dated 21st June, 2006 M/s.

Dimensions, the petitioners' Architect certified the completion of 1st

slab for Cafeteria for residential cum commercial building on the said

plot.

9. It is the case of the petitioners that, by letter dated 2nd

March, 2009 their Architect M/s. Dimensions certified the completion

work. The said building consist of four Wings namely A, B, C & D

Wings and consists of Ground + 21 upper floors on the said plots. It is

further case of the petitioners that, their Structural Engineer and R.C.C.

Consultant A.G. Gokhale and Associate issued certificate for stability of

the said building including the certificate of Earth quake stability in 9 wpst10937.12

respect of the said building. It is further case of the petitioners that, by

letter dated 10th February, 2009 Shree Enterprises Licensed Plumber

certified that the plumbing work has been done as per the rules and

regulations. It is further case of the petitioners that, on payment of

Drainage Charges, on 23rd January 2009 the Executive Engineer of the

second respondent issued Drainage Connection Certificate to the

petitioners in respect of the buildings situated on the said plot. The

Chief Health Officer of the second respondent has issued No Objection

dated 26th May, 2009 to the petitioners. The Chief Controller of the

Unauthorized Construction of the second respondent issued No

Objection Certificate for residential cum commercial building

constructed on the said Plot to the petitioners by a letter dated 6th

June, 2009.

10. It is further case of the petitioners that, on 31st July, 2009

the Fire Officer of the first respondent issued No Objection to release

Occupation Certificate occupancy in respect of the building constructed

by the petitioners on the plot. It is further case of the petitioners that,

on 12th May, 2009 the second respondent issued No Outstanding Dues

Certificate to the petitioners in respect of the said plot. 10 wpst10937.12

11. The petitioners state that, they have completed the entire

work and have also obtained all the necessary certificates and no

objections for grant of Occupation Certificate. The petitioners' Architect

M/s. Dimensions on 13th August, 2009 applied to the second

respondent for issuance of occupation certificate in respect of the

building constructed on the said plots.

12. It is the case of the petitioners that, they were shocked and

surprised to receive notice dated 13th September, 2011 under Section

53 sub-section (1) of the MRTP Act, 1966 from the third respondent

that, their application for occupation certificate made by their Architect

was refused by letter dated 10th September, 2009. The petitioners by

their Advocate's letter dated 14th October, 2011 replied to the notice

and pointed out that they have not received any refusal of the

application of their Architect dated 10th September, 2009 as alleged in

the notice dated 13th September, 2011.

13. It is the case of the petitioners that, the first respondent by

its letter dated 14th October, 2011 rejected the application made by

Architect of the petitioners on the ground that same cannot be

considered.

11 wpst10937.12

14. It is submission of the petitioners that, the alleged

unauthorized development work carried out on the said plot is of such

nature which can be regularized by the respondents and the

respondents have power to regularize the said alleged unauthorized

development work in respect of the said building.

15. The petitioners further state that, the third respondent had

passed order dated 30th January, 2012 under Section 53(6)(b) of the

MRTP Act, 1966 and directed the petitioners to remove the alleged

unauthorized construction as mentioned in the schedule of the said

order and drawing annexed thereto and to restore the construction in

conformity within seven days from the date of the said order.

16. Being aggrieved by the said order dated 30th January,

2012 the petitioners filed writ petition being Writ Petition No. 1234 of

2012, challenging the impugned notice 13th September, 2011 and the

impugned order dated 30th January, 2012 on the various grounds. The

aforesaid writ petition was listed for hearing and during the course of

hearing, the petitioners came to know for the first time that, their

application for grant of occupation certificate was refused under

Section 45(1)(iii) of the MRTP Act, 1966. It is further case of the 12 wpst10937.12

petitioners that, on next date of hearing of the said writ petition, by

order dated 9th March, 2012, the joint measurement of the said

building was directed in view of the petitioners' grievance that the

petitioners site was not physically inspected. The joint inspection was

thereafter conducted on 14th March, 2012 in presence of the parties

and their representatives as directed by this Court in the aforesaid writ

petition. The copy of the report of the joint inspection of the said

building dated 14th March, 2012 is placed on record by the petitioners

alongwith the present writ petition. According to the petitioners, the

aforementioned report of the joint inspection was placed on record in

Writ Petition No. 1234 of 2012 and after perusing the said report and

submissions made by the petitioners that, they intended to submit

proposal for regularization of the alleged irregularities alleged to have

been committed by them with revised plans within the parameters of

the Development Control Rules and by acquisition of additional FSI if

necessary, this Court by an order dated 16th March, 2012 granted the

application and prayer of the petitioners. The petitioners, accordingly,

submitted proposal for regularization of the portion which can be

regularized by purchasing FSI of the adjoining plot if permissible in law.

17. The petitioners submitted proposal for regularization of 13 wpst10937.12

the portion of the said building which according to the CIDCO policy

for permitting the FSI under tree belt and FSI of odd

shaped/irregular/unbuildable plots on the adjoining. The petitioners

requested the respondents to consider regularization , however, the

third respondent vide order dated 9th April, 2012 has communicated

the petitioners about the order passed by the second respondent that

the request of the petitioners for allotment of FSI of adjoining plot is

rejected by the competent authority and further to act upon the notice

dated 30th January, 2012.

18. It is case of the petitioners that, there is an odd shaped plot

belonging to the respondent No.1 Corporation which is adjoining the

petitioners' plot being Plot Nos. 79 and 80. The said plot, according to

the petitioners, is reserved for garden and is otherwise unbuildable. It

is further case of the petitioners that, in accordance with Rule 4 of

Chapter III of the Navi Mumbai Disposal of Lands (Amendment)

Regulations, 2008 framed by CIDCO for disposal of plots, the Managing

Director of CIDCO i.e. respondent No. 2 herein, is empowered to allot

odd shaped land to the adjoining licensee or allottee, which otherwise

cannot be disposed off for the reason of non availability of access or is

not developable due to its odd shape or other reasons, for the same use 14 wpst10937.12

and with same FSI the adjoining plot has. It is the contention of the

petitioners that, the aforesaid plot apart from being odd shaped land is

also unbuildable and not developable in view of the fact that it is

shown as reserved for a garden. It is the contention of the petitioners

that, CIDCO has permitted the user of FSI of odd

shaped/irregular/unbuildable plots to the adjoining plots in respect of

Plot No. A-34/32, Sector-12 and Plot No. 9 in Sector-6 at Kharghar. It is

further contention of the petitioners that, the respondent No. 1

Corporation has granted proposal for permitting use of FSI of land

under the tree belt in similar cases and that the petitioners were

informed that in respect of Plot NOs. D-67, D-68, and D-69 of Sector-

12, Kharghar the tree belt was permitted to be merged with the said

plot only for FSI purpose. Therefore, the petitioners made a request on

similar line in their proposal for regularization by (a) offer to purchase

the FSI in respect of adjoining odd shaped plot which is otherwise

unbuildable on par with plot No. A-34/32 in Sector 12 and Plot No. 9

in Sector 6 at Karghar and (b) for utilizing the FSI available by merging

the adjoining tree lines with the petitioners' plots against payment of

premium which was permitted by the CIDCO in case of Plot Nos. D-67,

D-68, and D-69 as stated hereinabove.

15 wpst10937.12

19. It is also contention of the petitioners that, no personal

hearing is given to the petitioners by the respondent No. 2 and proposal

of the petitioners for regularization is rejected in its entirety without

hearing the petitioners. It is further case of the petitioners that, the

respondent No. 2 on the basis of his subjective opinion observed that,

the said plot could not be termed as odd shaped plot and therefore, the

petitioners' proposal for purchasing FSI of the abutting plot was

allegedly not in consonance with the Regulations referred to

hereinabove. It was further observed by the respondent No. 2 that, odd

shaped plot if available is normally allotted to the adjoining plot holder

before development of the plot. However, in the petitioners' case, since

the petitioners were claiming the said plot for regularization and to

avoid action under the MRTP Act, their request could not be

considered. The respondent No. 2 has further observed that, the

request of the petitioners is contrary to the spirit of the Navi Mumbai

Disposal of Lands (Amendment) Regulations, 2008, particularly Rule 4

sub-rule (iv) of Chapter III thereof.

20. The petitioners state that, within parameters of the

Development Control Rules by acquiring additional FSI, if a structure

can be regularized then it should be the endeavour of the planning 16 wpst10937.12

authority to permit the same rather than removing the structure which

is not beneficial to anybody whatsoever. The provisions of Section 53

of the MRTP Act, 1966 provides for regularization and plot holder is

given right to submit a proposal for regularization provided that the

same is within parameters as provided in the Development Control

Rules. It is case of the petitioners that, the entire approach of the

respondent No. 2 that the proposal could not be considered since it was

submitted to regularize an unauthorized structure is contrary to the

provisions of the Development Control Rules/Regulations, as also the

provisions of the MRTP Act, 1966. The petitioners' proposal for merging

the tree belt with the petitioners' plot for the purpose of utilization of

FSI upon payment of premium, the respondent No. 2 has not even

referred to the same in the said order and therefore, according to the

petitioners, the request of the petitioners for merging tree belt with the

petitioners' plot has not been considered at all by the respondent No.2.

It is case of the petitioners that, according to the CIDCO there is some

additional construction on each floor of the property which is a ground

plus 21 storey building, none of the reports specified the exact area of

additional construction on each floor and therefore, it is practically

impossible to remove some portion floor wise, particularly when the

tenements in the said building are totally sold and are occupied. The 17 wpst10937.12

petitioners further state that, though only vague details are given by

CIDCO of the unauthorized structure and/or extent thereof on each

floor, the petitioners in good faith have submitted a proposal for

regularization to the extent of the entire area which is claiming to be

unauthorized by the respondent No.1 within the framework of the

policy of regularization. It is case of the petitioners that, the respondent

No. 2 has prejudged the entire issue and has without considering the

precedents in the matter cited by the petitioners in identical cases, has

rejected the proposal for regularization.

21. One Mr. Ravindra Bhaskarrao Patil has filed affidavit in

reply on behalf of the respondent Nos. 1 to 3 to oppose the admission

of the writ petition. It is stated in the said affidavit in reply that,

CIDCO being the New Town Development Authority, has power and

authority to dispose of the developed lands on lease within the notified

area of Navi Mumbai in exercise of the powers under Section 118 of the

MRTP Act, 1966. The CIDCO, in exercise of the powers under Section

118 read with Section 159 of the MRTP Act, 1966, has framed the

regulations for disposal of the lands with the previous approval of the

State Government, which is known as the New Bombay Disposal of

Lands Regulations, 1975. Further the same Land Regulations are 18 wpst10937.12

modified and known as the Navi Mumbai Disposal of Lands

(Amendment) Regulations, 2008. The power of disposal of land is

exercisable by the Board of Directors of the Corporation under Section

291 of the Companies Act, 1956. The Board of Directors of the

Corporation is vested power and authority under Section 118 of the

MRTP Act, 1966 and therefore, Board of Directors of the Corporation is

competent to dispose of the acquired land in such manner and subject

to such terms and conditions as they may consider expedient for

securing the development of the new town ship, in accordance with the

proposal approved by the State Government. In result, it is permissible

to the Board of Directors of the Corporation to add, amend, alter or

supplement any conditions to these regulations, which are conducive

and required for the development of the New Town of Navi Mumbai.

22. It is further stated in the said affidavit in reply that, order

of the respondent as per Section 149 of the MRTP Act, 1966 is final and

cannot be challenged in any suit or proceeding. Notice issued under

Section 53(1) and order under Section 53(6) of the MRTP Act, 1966 is

final and binding and therefore, the writ jurisdiction cannot be invoked

to by-pass the legal provisions as it would have set a precedent open to

misuse by large number of builders and also lead to cheating of public 19 wpst10937.12

at large.

23. It is further stated in the said affidavit in reply that,

Section 52 of the MRTP Act, 1966 enumerates the types by which a

development/construction may become illegal. As per Section 52(1) of

the Act, "any person who, whether at his own instance or at the

instance of any other person commences, undertakes or carries out

development, or institutes or changes the use of any land-

(a) without permission required under this Act;

(b) which is not in accordance with any permission granted or in contravention of any condition subject to which such permission has been granted;

(c) .....

(d) in contravention of any permission which has been duly modified, shall, on conviction....the first commission of the offence.

(2) Any person who continues to use or allows the use of any land or building in contravention of the provisions of a Development plan without being allowed to do so under Section 45 to 47....for the commission of the offence.

24. It is further stated in the said affidavit in reply that, as per

Section 53(1) a person constructing such illegal construction has to be

served a notice for 1 month. Section 53(1) reads as 20 wpst10937.12

"where any development of land has been carried out as indicated in sub-section (1) of Section 52, the Planning Authority, may subject to the provisions of this Section serve on the owner a notice requiring him, within such period not being less than one month, as may be specified therein after the service of the notice, to take such steps as may be specified in the notice, (a)

(b) in cases specified in clause (b) or (d) of sub-section (1) of Section 52, to secure compliance with the condition or with the permission as modified.

(2) In particular, such notice may, for the purpose of sub-section (1) require-

(a) the demolition or alteration of any building or other operations; or

(c) the discontinuance of any use land.

(3) Any person aggrieved by such notice may, within the period of specified in the notice and in the manner prescribed, apply for permission under Section 44 for retention on the land, to which the notice relates, and pending the final determination or withdrawal of the application, the mere notice itself shall not affect the retention of the buildings or works or the continuance of such use.

(4) The foregoing provisions of this Chapter shall, so far as may be applicable, apply to an application made under sub-section (3).

(5) If the permission applied for is granted, the notice shall withdrawn; but if the permission applied for is not granted, the notice shall stand; or if such....or part of the land.

(6) If within the period specified in the notice or within the same period after disposal of the application under sub-section (4), the notice or so much of it stand is not complied with, the Planning Authority-

(a) prosecute the owner for not complying with the notice; and ....Used in contravention of the notice; and (b) where the notice requires the demolition or alteration of any building or works or carrying out of any building or other operation, itself cause the restoration of the land to its condition before the development took place and secure compliance with the conditions of the permission or with the permission as modified by taking 21 wpst10937.12

such steps as the Planning Authority may consider necessary including demolition or alteration of any building or works or carrying out of any building or other operations; and recover the amount of any expenses incurred by it in this behalf from the owner as arrears of land revenue."

25. It is further stated in the said affidavit in reply that, as per

Section 44 permission has to be obtained from the planning authority

to develop a piece of land and the conditions which necessarily include

only the approved plans have to adhered to. Constructing or

developing as per the approved plans duly approved by the planning

authority is an important aspect of the conditions of the

Commencement Certificate so granted as per Section 45. The

contention of the petitioners that they constructed as per the plans

submitted by the Architect is trying to mislead this Court and is

mischievous statement. It is submitted that, the plans as per which

construction was carried out were never approved by the respondents.

It is further stated that, the plans were approved for the building in

dispute on 15th June, 2006.

26. It is further stated in the said affidavit in reply that, the

Commencement Certificate was issued on 23rd January, 2006 and the

said commencement certificate contained a condition that the Licensee 22 wpst10937.12

will have to obtain necessary clearance from the Ministry of

Environment and Forests, New Delhi, at the time of submitting of the

Completion Certificate by the Architect. The developer/Petitioner

obtained a letter dated 26th May, 2006 from the Maharashtra Pollution

Control Board, Mumbai stating that the Project does not attract EIA

Notification dated 7th July, 2004 and the letter of Maharashtra

Pollution Control Board was submitted to CIDCO on 29th May, 2006. It

is further stated in the said affidavit in reply that, thereafter the

petitioner-Developer submitted revised plan for approval and an

amended commencement certificate was issued on 15th June, 2006.

This was an amended/revised commencement certificate and not a

second commencement certificate. The number of floors and the total

built up area in both the commencement certificate issued on 23rd

January, 2006 and the amended commencement certificate issued on

15th June, 2006 remained unchanged and has reflected to be Ground

+ 21 floors with a total built up area of 10,094.885 sq. mt. It is further

stated that, some internal changes and changes in the number of units

was made in the revised plan and for this purpose amended

commencement certificate was issued.

27. The respondents further stated in the said affidavit in reply 23 wpst10937.12

that, after building was constructed, the Architect of the petitioners for

the first time applied for occupation certificate on 13th August, 2009.

However, as there were shortcomings in the proposal submitted the

respondent No. 3 refused permission for the occupation certificate

within one month by his letter dated 10th September, 2009. It was

therefore, the responsibility of the petitioner-Architect to have removed

or fulfilled the shortcomings and submitted proposal for occupation

certificate. However, the petitioners did not submit proper proposal for

occupation certificate. The respondents stated that, the Additional

Town Planning Officer, Shri. Ravindra Bhaskarrao Patil, therefore, had

issued a notice under Section 53 of the MRTP Act, 1966 on 13th

September, 2011 to the builders. The respondents have placed on

record the copy of the said notice dated 13th September, 2011 at

Exhibit-C alongwith the affidavit in reply.

28. In response to the notice issued by the respondents,

Architect of M/s. Abhishek Builders & Developers submitted a set of

drawings in respect of the subject property on 19th September, 2011.

The Officers of the respondents inspected the site and found that,

drawings submitted were not in conformity with actual construction

done at site and also constructed built up area was more than the 24 wpst10937.12

approved built up area. Since the Builder-Developer failed to take

approval, the Chief Controller of Unauthorized Construction was

informed to take further steps as specified in Section 53 of the MRTP

Act, 1966. It is further stated in the said affidavit in reply that, final

notice in respect of unauthorized construction was issued by the

Additional Town Planning Officer on 14th October, 2011 and copy of

the same was forwarded to the Chief Controller of Unauthorized

Constructions for further appropriate action. It is submissions of the

respondents that, notice under Section 53(1) was issued after giving

more than ample opportunity to the petitioners to submit proposal for

occupation certificate alongwith proper and approved plans by CIDCO

and not just plans merely prepared by Architect. In the present case,

there is clear violation of General Development Control Regulations

(GDCR) for Navi Mumbai and hence, excess construction so

determined being clearly violative and illegal cannot be regularized

under any provision.

29. According to the respondents, as per provisions of Section

52 and 53(1), in case any construction is not in conformity to

permission granted under Section 45 a notice under Section 53(1) may

be served by the planning authority following a period of one month to 25 wpst10937.12

act as per the corrective steps in the notice. In the present case, the

notice dated 13th September, 2011 had called upon the petitioner-

Architect to submit proper plans within one month which were in

conformity to the GDCR and having maximum permissible built up

area. The notice had also mentioned that the handing over of

possession to some residents by the Developer-Petitioner without

obtaining an occupation certificate was also violative of the conditions

of the Lease. The Developer-petitioners did not submit plans which

were in conformity to the proper construction which should have been

in conformity to the GDCRs and hence notice u/s 53(6) was issued on

14th October, 2011 which was after the stipulated period of one month.

30. It is further stated that, the issue of regularization of excess

construction and Section 53(1) and 53(6) of the MRTP Act, 1966

including the demolition of unauthorized and excess construction has

been settled by the Division Bench of this Court in Writ Petition No.

1077 of 2007 decided on 16th December, 2009. The respondents have

further stated in the affidavit in reply that, the petitioners have utilized

the entire permissible FSI available on the plot/piece of land and

hence, there is no scope whatsoever to construct additional area for

availability of FSI. The provision of TDR is not applicable to Navi 26 wpst10937.12

Mumbai and the GDCR does not have any provision regarding TDR.

Therefore, under no circumstances can the excess area constructed be

regularized and as there is no scope under any law or provision to

regularize the construction. It is further stated by the respondents that

the petitioners had conducted a joint survey of the unauthorized

construction on 14th March, 2012 and the petitioners have accepted

the correctness of the survey which confirms the excess and

unauthorized construction and which has been recorded by this Court

in its order dated 16th March, 2012 in Writ Petition No. 1234 of 2012.

It is further stated in the affidavit in reply that, this Court by order

dated 16th March, 2012 had ordered the petitioners to be heard, the

petitioners-builders submitted a new set of drawings which again were

not in conformity to the actual construction. Therefore, the respondent

No. 2 after considering the drawings and plans submitted by the

petitioner-builders rejected the proposal of the petitioner-builder for

not being in conformity to the prevailing provisions. It is submitted

that, there is no requirement for the petitioner to be heard orally as

whatever has to be stated by the builders is always done only as per the

drawings and plans and there is no necessity whatsoever to be heard in

person. According to the respondents, they are bound to consider

whatever is recorded and submitted on paper and this by itself 27 wpst10937.12

constitutes the complete opportunity to the petitioner-builder and as

such, the contention of the petitioners that no personal hearing is given

is frivolous and delaying tactics and to circumvent the main issue. It is

further stated in the affidavit in reply that, Managing Director of the

respondent No.1 has powers under Regulation No. 4 sub/rule (iv) to

allot a plot for such purpose to the abutting and already allotted plot if

it satisfies the following conditions : (a) it is odd shaped (b) on non

developable area/zone and cannot be used for developable purpose (c)

non accessible by any approach. In the present case, the plot demanded

by the petitioners is not an odd shaped plot but is in such a shape

which can be developed independently. The plot in demand is however

currently reserved for a rotary junction which is important aspect from

the purpose of town lay out. However, in future, CIDCO in the event of

restructuring the town lay out and cancelling the rotary junction this

plot which is not odd shaped has the potential to be used

independently as a completely developable plot. Further, the plot in

demand is also inaccessible but has a direct approach and has a good

potential to be developed in the event of the respondent-CIDCO

deciding to develop in the future. Therefore, none of the necessary

conditions required to be fulfilled are being satisfied in the present case

and hence, illegal demand of the petitioners were rightly refused by 28 wpst10937.12

CIDCO.

31. The respondents have also replied to the contention of the

petitioners that, plot Nos. 67 and 68 which were reserved for tree

plantation, such plots were allotted to the co-operative society and its

FSI was allowed to be used for the construction of such building and

hence the petitioners should also be allotted the plot and its FSI be

used to regularize the illegal and unauthorized construction of the

building in dispute. The respondents have stated that, the petitioner

has conveniently and deliberately not pointed out that, plot Nos. 67, 68

and 69 or any other plots mentioned were allotted prior to the

commencement of the construction of the building by the Society

whereas the petitioners are demanding to regularize their illegal and

unauthorized construction which is afterthought. Therefore, there is an

essential difference between the plots so allotted to the co-operative

societies which was prior to the commencement of the construction and

as such approved as per plans by CIDCO whereas the demand of the

present petitioners is of the nature to regularize an illegal act which

cannot be regularized and which would set a wrong and dangerous

precedent in terms of illegal construction in the entire city. In the

event, such action is allowed then the builders would be encouraged to 29 wpst10937.12

construct illegally and then got it regularized by getting an abutting

plot amalgamated. It would further become obligatory on the

respondents to allow such scheme as it would have set a precedent

which would be subject to large scale misuse by such unscrupulous

builders.

32. The respondents have further stated in the affidavit in

reply that, the petitioners are applying strange logic of regularizing an

illegal act in paragraph 33 and 34 of the petition. According to the

respondents, the purport of Rule 4(iv) of the NMLDR, 2008 is not

allowing for such regularization of illegal construction but in the event

of a plot being non developable due to its shape and inaccessibility,

even then CIDCO may be able to raise revenue and money be deposited

in the public exchequer. However, nowhere it is intended that such

raising of money should be at the expense of legalizing such public

wrongs and illegal actions. According to the respondents, such removal

of unauthorized construction is necessary as a deterrence for such

unscrupulous builders who cheat flat owners by building in excess and

when the planning authority tries to pursue legal action as in

accordance with law, issues of right of third parties are raised by such

builders.

30 wpst10937.12

33. The respondents in the affidavit in reply have also made

reference to the judgment of this Court in the Writ Petition No. 1077 of

2007 dated 16th December, 2009 and stated that, the issue of illegal

construction and its subsequent regularization by trying to use FSI by

manner of TDR has been well settled by the Division Bench of this

Court in the aforesaid judgment. At the cost of the repetition, it is

stated in the affidavit in reply that, the respondent No. 2 has passed

order after considering all aspects and the provisions of Rule 4 (iv) of

the Navi Mumbai Disposal of Lands (Amendment) Regulations, 2008

and the fact that the other plots were allotted pre-construction stage

whereas the demand of the petitioners is post-construction only for the

purpose of regularizing unauthorized construction which is not the

intention and objective of Rule 4 (iv) of the aforesaid Regulations and

therefore, the respondents have prayed that the petition may be

dismissed.

34. The respondents have filed further affidavit pursuant to

the direction of this Court on 3rd May, 2012 regarding the allotment of

odd shaped land for the purpose of regularization in the context of the

Navi Mumbai Disposal of Lands (Amendment) Regulations, 2008. One 31 wpst10937.12

of the respondents namely Mr. Prakash Nathuram Mhatre, In-charge

Manager (Town Services-III) of the respondent - CIDCO has filed

further affidavit in reply on 4th May, 2012. Paragraph Nos. 1 to 8 of the

said affidavit in reply reads thus ;

1. I say that in Writ Petition St. No. 10937 of 2012, this Hon'ble Court heard the matter on 03.05.2012 and was pleased to direct the Respondent herein to file affidavit regarding allotment of odd shaped land for the purposes of regularization in the context of the Navi Mumbai Disposal of Lands (Amendment) Regulations, 2008, with particular reference to the proviso of Regulation 4, which reads as under :

" Provided that the Managing Director may allot odd shaped land to the adjoining Licensee/Lessee, which otherwise cannot be disposed off for the reason of non availability of access or is not developable due to its odd shape or other reasons, for the same use and with the

same FSI the adjoining plot has, at the base rate suggested in the Land Pricing & Land Disposal Policy prevailing at the time of allotment of odd shaped land or at the rate at

which the original plot is allotted, whichever is higher."

2. I say that the CIDCO, in exercise of the powers under Section 118 read with Section 159 of the Maharashtra Regional & Town Planning Act, 1966, framed land disposal regulations with the previous approval of the State Government, which is known as the Navi Mumbai Disposal of Lands (Amendment) Regulations, 2008, which came into force with effect from 20.11.2008, after publication of the same in the Maharashtra Government Gazette.

32 wpst10937.12

3. I say that the Navi Mumbai Disposal of Lands (Amendment) Regulations, 2008, prescribe the mode and manner of allotment of plots for various purposes. Similarly, the CIDCO (Lease of Plots to the Co-operative Housing Society) (Amendment) Regulations, 2008 provides the mode and manner of allotment of plots to the Co- operative Housing Societies. CIDCO is bound to follow the prescribed manner and mode of the said Regulations for the purpose of disposal of lands for various purposes and CIDCO will not deviate from this policy in future, unless the said regulation is modified or amended by following due process of law.

4. I say that prior to coming into fore the amended Regulations 2008, the New Bombay Disposal of Lands Regulations, 1975 was applicable for disposal of lands in Navi Mumbai. Regulation 4 of the said Regulations was permitting disposal of land on individual applications also. However, after coming into force the amended regulations 2008, allotment of land is not permitted on individual applications, except for the allotment of odd shaped lands and allotment of land to Central/State Government, their undertakings, local bodies, Government Autonomous by, Public Charitable Trusts for educational, social cultural, medical, sports activities, religious purpose and to the reputed national/international institutions, R & D establishments, foreign Government consulates.

5. I say that pursuant to the provision made in the Navi Mumbai Disposal of Lands (Amendment) Regulations, 2008, the Respondent herein has not allowed any odd shaped land or any non-developable plot for the purpose of regularization of unauthorized construction or excess construction, after coming into force the said regulation in the year 2008.

6. I say that, on the basis of the said Regulations, 2008, the CIDCO is not empowered to allot such odd shaped land 33 wpst10937.12

and/or non-developable plots for regularization of such unauthorized construction and/or excess construction and hence, based on the present provisions made in the said Regulations, 2008, even in future, odd shaped land/non- developable plots will not be allotted for the purpose of regularization of unauthorized construction and/or excess construction.

7. I further say that the tree belt adjoining to the Plot Nos. D-67, D-68, and D-69 was not capable of being independently developed and the allotment was satisfying the proviso of Regulation 4 of the said Regulations for allotment of odd shaped land/non-developable land. Therefore, the allotment of the tree belt was made to the adjoining Licensees. I further say that this allotment was not made for regularization of unauthorized and/or excess construction. I further say that as far as the present matter is concerned, the land demanded by the petitioner is a part of rotary junction having independent access and forming part of urban design. Therefore, it cannot be treated as an odd shaped land in terms of proviso of Regulation 4 of the Navi Mumbai Disposal of Lands (Amendment) Regulations, 2008.

8. In the premises, I say that submit respectfully that the Petitioner herein discloses no cause of action to warrant the intercession of this Hon'ble Court."

35. From perusal of the compilation of the writ petition, we do

not find any rejoinder by the petitioners to the reply filed by the

respondents.

34 wpst10937.12

Writ Petition No. 2045 of 2012

36. This Writ Petition is filed by the petitioner, challenging the

order dated 30th January, 2012 passed by the respondent No. 2 under

Section 53(6) of the MRTP Act, 1966, for demolition of the part of

and/or said building constructed by the respondent No.3, known as

Green Heritage situated at 79-80, Sector No.20, Kharghar, Navi

Mumbai and further the petitioner has challenged inaction of the

respondent Nos. 1 and 2, to grant occupation/completion certificate in

respect of the building in the name of Green Heritage constructed by

the respondent No. 3 on Plot Nos. 79 and 80 situated at Sector-20 at

Kharghar, Navi Mumbai.

37. It is the case of the petitioner that, he has purchased shops

tenements in the said building bearing No. 29 and 30 respectively from

the respondent No. 3 by allotment letter upon payment of valuable

consideration for the aforesaid purchase. According to the petitioners,

while purchasing the said shops, they have inspected the plans in

respect of the said project duly sanctioned by the respondent No. 1 in

its capacity as the Planning Authority and upon being satisfied about

the title in respect of the said property and the sanctioned plan, the

aforesaid purchase was made. The said building consist of 4 Wings 35 wpst10937.12

namely A, B, C & D Wings and consists of Ground + 21 upper floors on

the said plots.

38. The petitioners state that, there are in all 150 numbers of

residential flats, 38 numbers of shops and 1 number of four floored

commercial unit in the said building which are purchased by various

purchasers. After completion of the aforesaid building, the respondent

No. 3 applied for issuance of occupation certificate on 13th September,

2009 through its Architect in accordance with the information given by

the respondent No. 3 to the petitioners. The petitioners state that, on

inquiries made by the petitioners, they were from time to time

informed by the respondent No. 3 that, their application for issue of

occupation certificate was pending. In the meantime, however, the

petitioners, on their request were given provisional possession of the

said shops for carrying out the interiors and the furniture work. The

petitioners, however, were shocked and surprised when they became

aware that the impugned order dated 30th January, 2012 under

Section 53(6) of the MRTP Act,m 1966 was issued by the second

respondent. In accordance with the said order, the respondent No. 3

i.e. Abhishek Builders and Developers, was called upon to remove the

alleged excess construction made on the said property which was 36 wpst10937.12

according to the respondent No.1 beyond the sanctioned plan and

failing which, it was stated in the said order that, the respondent No.1

would carry out act of demolition of the excess construction at the cost

of the respondent No.3. It is the case of the petitioner that, on reading

the said order, the petitioner immediately contacted the respondent No.

3 and sought clarification. The respondent No. 3 informed to the

petitioner that they have received a notice under Section 53(1) of the

MRTP Act, 1966 on 13th September, 2011 which was already

responded by the respondent No. 3 through their Advocate's reply

dated 14th October, 2011. By the said reply, the respondent No. 3 had

denied the allegations made against them by the respondent No.1 and

further stated that they were under the impression that their

application for occupation certificate was still pending.

39. It is the case of the petitioners that, the respondent No. 3

has shown various permissions and proof of payments including

Architect certificate about satisfactory completion of the project. In

fact, the Chief Controller of Unauthorized Construction Cell of 1st and

2nd respondent has vide its NOC dated 2nd June, 2009 specifically

stated that, it has verified the construction and is satisfied that, there

are no unauthorized hutment, structures, debris etc., on plot other than 37 wpst10937.12

building structure approved by building permission department CIDCO.

The petitioners have also stated that, various authorities have granted

either permission or NOC and therefore, the application for occupation

certificate should have granted. It is stated that, the third respondent

has for the said building purpose obtained electricity connection from

Maharashtra State Electricity Department and all the purchasers are

carrying out the respective work/interior in their respective premises

on the basis of the aforesaid electricity supply provided by the MSEDCL

under the connection. In the month of October, 2011 the MSEDCL has

issued the notice for disconnection of electricity supply to the said

building illegally. Some of the purchasers have therefore preferred Writ

Petition before this Court and bny order dated 17th December, 2011,

this Court was pleased to grant status quo against the alleged

disconnection. Other facts have been stated in detail by the petitioners

in the writ petition. According to the petitioners, the respondent Nos. 1

and 2 are bound to consider the approvals, NOCs and permissions

granted by them. Since the respondent Nos. 1 and 2 have not refused

or accepted the letter of occupation certificate of the respondent No. 3,

the petitioners prayed for grant of deemed occupation certificate.

40. The petitioners have stated that, in any event, their 38 wpst10937.12

valuable right in respect of the aforesaid shop tenements are accrued in

favour of the petitioners who are genuine buyers having purchased the

shops premises after inspecting the sanctioned plans. Therefore, any

action against the respondent No. 3 which may be proposed by the

CIDCO should be independent of disturbing the structure which is built

on the basis of a sanctioned plan. Any such action against the structure

would cause grave prejudice, irreparable loss, harm and injury to the

petitioners who have purchased their shops by spending life time

savings. If the action of respondent No. 1 as contemplated in the

impugned order is permitted, the petitioners for no fault on them will

be sufferers. They are bonafide purchasers for value who have

purchased their respective tenements after inspecting the sanctioned

plan. Therefore, the petitioners have prayed that, the impugned

notices for removal of unauthorized construction as issued by the 1st

and 2nd respondents are illegal, invalid and completely without

jurisdiction because the same is dehors the approvals and NOCs issued

by the 1st and 2nd respondents itself.

Writ Petition No. 2439 of 2012

41. This writ petition is filed by the petitioners with prayer to

issue Writ of Mandamus or any other appropriate Writ, Order or 39 wpst10937.12

Direction under Article 226 of the Constitution of India and further to

declare that, the impugned notice dated 30th January, 2012 issued

under Section 53(6) of the MRTP Act, 1966 is illegal and bad in law

and is required to be quashed and set aside. Further direction is sought

to the respondent Nos. 1 and 2 to issue occupation certificate in respect

of Green Heritage, Plot Nos. 79 and 80, Sector-20, Kharghar, Navi

Mumbai. Further direction is sought to provide permanent water

connection to the said building.

42. The petitioners are the shop purchasers in the building

constructed by the respondent No.3 known as Green Heritage situated

at 79-80, Sector-20, Kharghar, Navi Mumbai. They are also members of

the "Green Co-operative Housing Society Ltd. (Proposed)" registered

with Registrar of the Co-operative Societies under the provisions of the

Maharashtra Co-operative Societies Act, 1960.

43. On careful perusal of the facts and submissions in the writ

petition, the facts stated in the petition and submissions are almost

identical to other two writ petitions. According to the petitioners, the

petitioners are bonafide purchasers for value and they have purchased

the said shops by spending life time savings and by taking loan from 40 wpst10937.12

financial institutions and therefore, the impugned notice for demolition

of the said building has caused grave prejudice to the interest of the

petitioners. According to the petitioners, the impugned notice dated

30th January, 2012 is not issued as required under Section 53(6) of the

MRTP Act. The impugned action of the respondents in acting against

issue of occupation certificate of the petitioners' building constructed by

the respondent No. 3 on the said plots is illegal, bad in law and is high

handed. The building in question is constructed as per sanctioned

plans and therefore, the impugned notice/order passed by the

respondent Nos. 1 and 2 is not sustainable. The respondent authorities

are bound in law to issue occupation certificate to the said building in

absence of any reasons or any communication made to the respondent

No. 3 for not issuing occupation certificate in respect of the said

building within stipulated time as per law. It is statutory duty of the

respondent Nos. 1 and 2 to issue occupation certificate to the said

building, when all NOCs are issued after completion of the said

building in all respect as per sanctioned plans and permissions granted

by the authorities. It is stated that, admittedly no notice of any site

inspection was ever given by the respondent Nos. 1 and 2 to the

respondent No. 3 and according to the settled position of law, any site

inspection without notice to the Developer is of no consequence and 41 wpst10937.12

cannot be relied upon. Therefore, the petitioners have prayed that, this

writ petition may be allowed.

44. We have given thoughtful consideration to the rival

submissions. With the able assistance of the Counsels appearing for the

respective parties, we have carefully perused the pleadings, annexures

thereto, affidavit in replies filed by the respondent authorities and also

other documents placed on record and relevant provisions of the MRTP

Act, 1966 and also the Navi Mumbai Disposal of Lands (Amendment)

Regulations, 2008. Our attention was also invited to the various

judgments of the Supreme Court and this Court on subject by the

Counsels appearing for the respective parties.

45. At this stage, it is apposite to refer to the notice under

Section 53 sub-section (1) of the MRTP Act, 1966 in respect of the

development of residential cum commercial building on Plot Nos. 79

and 80, Sector-20, Kharghar, Navi Mumbai issued to M/s. Abhishek

Builders & Developers by the Additional Town Planning Officer, Navi

Mumbai and Khopta dated 13th September, 2011 and 14th October,

2011 and notice under Section 53(6)(b) issued to M/s. Abhishek

Builders & Developers by Mr. R.B. Patil, Additional Town Planning 42 wpst10937.12

Officer, Navi Mumbai and Khopta dated 30th January, 2012 reproduced

herein below ;

CIDCO

WE MAKE CITIES

CITY AND INDUSTRIAL DEVELOPMENT CORPORATION

OF MAHARASHTRA LIMITED.

REGD. OFFICE: HEAD OFFICE: 'NIRMAL' 2nd Floor, Nariman Point CIDCO Bhavan, CBD Belapur. MUMBAI-400 021 Navi Mumbai-400 614. PHONE :(Reception)+91-22-6650 0900/6650 0928 PHONE:+91-22-67918100 FAX : +91-22-2202 2509 / 6650 0933 FAX :+91-22-6791 8166

Ref. : DCO/BP/ATPO (NM & Khopta)/2011-972 Date : 13/09/2011

To,

M/s. Abhishek Builders & Developers,

Plot NO. 79 & 80, Sector-20.

Kharghar, Navi Mumbai.

Sub: - Notice under Section 53(1) of M.R. & T.P . Act,1966 in respect of development of Residential Cum

Commercial Building on plot no. 79 & 80, Sector-20, Kharghar, Navi Mumbai.

Ref:- Development permission granted by this office to subject plot on 15/06/2006.

Sir/Madam,

This office, as referred above, has granted Development Permission on 15/06/2006 for the construction of Residential cum Commercial Building on subject plot. While granting the said permission 97 nos. of Residential units, 20 nos. of commercial units with 02 nos. of office buildings from 1st to 3rd floor having total 06 nos. of office units were approved.

Further, after submission of the proposal for occupancy certificate by your appointed Architect on 13/08/2009, the same was refused by this office vide refusal letter dtd. 10/09/2009 for the reasons mentioned therein. Thereafter, 43 wpst10937.12

the site was inspected and it has come to the notice of this office that, the development carried out on site is not as per the plans approved by this office and it is observed that by making internal changes the nos. of residential units are found increased from 97 to 160 units and as also the same has been done in shops & office units, where shops have increased from 20 nos. to 38 nos. and office buildings have also constructed from 1st to 4th floor, without obtaining due permission from this office under section 45 of the MR & TP Act, 1966.

As this offence is falling under clause (b) of sub section (1) of section 52 of M.R. & T.P . Act 1966, this notice is served upon you, under Section 53(1) of M.R. & T.P Act 1966, .

instructing you to get the changes made on site, approved by this office within one month from the date of issue of this notice or otherwise necessary action as laid down under sub section (6) of section 53 of M.R. & T.P . Act, 1966 shall be initiated against you which may be noted.

It is also observed that you have given possession to the some of the flat owners as well as shop without obtaining occupancy certificate from this office to the subject development. Hence the occupation in the said building without obtaining occupancy certificate is termed as unauthorized and suitable action will be initiated against you separately.

sd/-

Addl. Town Planning Officer,

Navi Mumbai & Khopta.

flMdks

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nqj/ouh% (Lokxr d{k)$91&22&66500900 nqj/ouh % $91&22&67918100 QWDl % $91&22&22022509 QWDl % $91&22&67918166

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CIDCO/BP/ATPO (NM & Khopta)/2011/1155

To,

M/s. Abhishek Builders & Developers,

Plot NO. 79 & 80, Sector-20,

Kharghar, Navi Mumbai - 410210.

Sub :- Failure to comply with the notice served upon you under section 53(1) of M.R. & T.P . Act, 1966 in respect of development of Residential Cum Commercial Building on plot no.79 & 80,

Sector-20, Kharghar, Navi Mumbai.

Ref: 1) Development permission granted by this office to subject plot on 15/06/2006.

2) Notice under Section 53(1) of M.R. & T.P Act, .

1966 issued by this office vide letter dated

13/09/2011.

3) One set of drawings in respect of subject plot submitted by your Architect on 19/09/2011.

After submission of the proposal for occupancy certificate by your appointed Architect on 13/08/2009, the same was refused by this office vide refusal letter dtd. 10/09/2009 for the reasons mentioned therein. Thereafter, the site was inspected on 29/09/2009 by A.E. concerned of this office, and it has come to the notice of this office that, the development carried out at site is not as per the plans approved by this office.

Thereafter, the notice was served upon you as referred at sr. no. 2 above, under Section -53(1) of MR & TP Act 1966, instructing you to get the changes made on site, approved by this office within one month from the date of issue of this notice or otherwise necessary action as laid down under sub section (6) of section-53 of M.R. & T. P. Act-1966 shall be initiated against you.

45 wpst10937.12

In response to the said notice, your appointed Architect has submitted one set of drawings as referred at sr. no. 3 above. However after the said submission, the site has been inspected by A. E. concerned of this office on 10/10/2011 & on 17/10/2011 and it is observed that the drawings submitted by your Architect are not in conformity with the actual construction done at site and also constructed buit up area is more than the approved built up area.

As you/your Architect have failed to take approval of this office for the as built construction, hence Chief Controller of Unauthorized Constructions, CIDCO is hereby being informed to take further steps as specified in section 53 of the M. R. & T. P . Act, 1966.

Sd/-

Addl. Town Planning Officer,

Navi Mumbai & Khopta

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CIDCO/BP-848/ATPO(NM & k)/2012/764 30.01.2012

NOTICE UNDER SECTION 53(6)(b) OF THE

MAHARASHTRA REGIONAL & TOWN PLANNING ACT, 1966

To,

46 wpst10937.12

M/s. Abhishek Builders & Developers,

107 & 109, Central Facility Bldg. (Phase-il),

Above State Bank of Saurashtra,

Sector - 19, Vashi,

Navi Mumbai - 400 705.

Thro' its Partners,

1. Mr. Dinesh Keshavji Patel,

2. Mr. Karman Rabhu Patel,

3. Mr. Gangji Kalyanji Bhanushali,

4. Mr. Vijay Ravji Gajra,

5. Mr. Sunil Keshavji Gala &

6. Mr. Sohal Navin Gala, .. Intending Lessee

Gentlemen,

WHEREAS the City & Industrial Development Corporation of Maharashtra Limited made allotment of Plot NO. 79 & 80, admeasuring 2890.13 sq. mt. & 3856.42 sq.mt. respectively, in Sector, 20 Kharghar, Navi Mumbai, to you and the Agreements to Lease have been executed and handed over possession of these plots on 22.06.2005 and 06.09.2005 respectively.

AND WHEREAS the undersigned has been empowered

by the City & Industrial Development Corporation of Maharashtra Limited, to exercise and perform the powers and functions of the Planning Authority under section 53, read with Section 152 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as "the Said Act");

AND WHEREAS it has been reported to me that you have carried out construction on Plot No. 79 & 80, Sector 20, Kharghar, Navi Mumbai, which is not in conformity with the development permission granted vide this office letter No. CIDCO/BP/ATPO/848, dated 15/06/2006.

AND WHEREAS the notice under Section-53(1) of the said Act was served upon you vide this office letter no. CIDCO/BP/ATPO(NM&Khopta)/2011/972;dated 13/09/2011.

AND WHEREAS, in response to the said notice, you had submitted "As Built drawings" on 19.09.2011, under Section 47 wpst10937.12

53(3) of the Said Act. The undersigned visited the site on 10.10.2011 & 13.10.2011 and it was noticed that the "As Built drawings" submitted on 19.09.2011 were not in conformity with the actual construction carried out at site. Therefore, in exercise of the powers under Section 53(5) of the said Act, the permission applied for was not granted, vide this office letter No. CIDCO/BP/ATPO (NM&Khopta)/2011/1155, dated 14.10.2011

AND WHEREAS, the First Information Report is registered with the Kharghar Police Station, against all of you, under Section 53(6)(A) of the said Act.

AND WHEREAS the actual measurements of construction made on Plot No. 79 & 80 were taken and it is noticed that you have carried out total construction of 11,842.077 sq.mt. built up area, against the approved/permissible built up area of 10.266.459 sq.mt. Thus, you have made excess construction of 1575.618 sq.mt; which is unauthorized and cannot be regularized.

THEREFORE, you are hereby directed to remove the unauthorized construction carried out by you, as described in the Schedule appended below and shown in drawings annexed hereto and to restore the construction in conformity with the development permission granted under this office letter No. CIDCO/BP/ATPO/848, dated 15/06/2006, within seven days from the date of receipt of this notice.

Please note that on failure to comply with the aforesaid requisition within seven days from receipt of this notice, aforesaid unauthorized construction shall be demolished at your risk, cost and consequences without any further correspondence.

------------------------------------------------------------------------------------

S C H E D U L E

The unauthorized construction carried out beyond the development permission granted, vide this office letter no. CIDCO/BP/ATPO/848, dated 15/06/2006, for development of Residential cum Commercial building on Plot No. 79 & 80, 48 wpst10937.12

Sector-20, Kharghar, Navi Mumbai.

1. Built up area of 232.895 Sq. Mt. consumed at ground floor in 38 Nos. of shops by extending the depth of the shops towards ground floor stilt area, as shown in red colour in the drawing enclosed as Annexure-1.

2. Built up area of 15.763 Sq. Mt. on each floor of office building near "A" wing with a total built up area of 63.025 Sq. Mt. from First floor to Fourth floor, as shown in red colour in the drawing enclosed as Annexure-2.

3. Build up area of 300.563 Sq. Mt. from First to Fifth floor, under Fitness centre constructed between "B" & "C" wing, over the permissible built up area of 171.76 Sq. Mt. as shown in red colour in the drawing enclosed as Annexure-3.

4. Built up area of 14.42 Sq. Mt. on each floor with a total build up area of 288.40 Sq. Mt. from Second to Twenty First floor of "A" wing, as shown in red colour in the drawing enclosed as Annexure-4.

5. Built up area of 16.058 Sq. Mt. on each floor with a total built up area of 321.16 Sq. Mt. from Second to Twenty First floor of "B" wing, as shown in red colour in the drawing enclosed as Annexure-5.

6. Built up area of 15.693 Sq. Mt. on each floor with a total built up area of 313.86 Sq. Mt. from Second to Twenty First floor of "C" wing, as shown in red colour in the drawing enclosed as Annexure-6.

7. Built up area of 14.383 Sq. Mt. on each floor with a total built up area of 287.66 Sq. Mt. from Second to Twenty First floor of "D" wing, as shown in red colour in the drawing enclosed as Annexure-7.

8. Cupboards and Flowerbeds on all the floors not constructed as per the approved section.

Sd/-

30.01.2012

( R. B. Patil )

Addl. Town Planning Officer,

NM & Khopta

49 wpst10937.12

46. The petitioners in Writ Petition (St.) No. 10937 of 2012 i.e.

M/s. Abhishek Builders & Developers did file Writ Petition No. 1234 of

2012. In said writ petition, direction was sought to the respondents to

withdraw and/or cancel the notice dated 13th September, 2011 and

also further direction was sought for quashing and setting aside the

order dated 14th October, 2011 passed by the respondents thereby

rejecting the application dated 19th September, 2011 made by the

petitioners' Architect for issuing occupation certificate in respect of the

said building i.e. Green Heritage situated on Plot Nos. 79 and 80,

Sector-20, Kharghar, Navi Mumbai. In the said writ petition, further

relief to issue occupation certificate to the petitioners in respect of the

said building was also sought for. The petitioners further prayed for

issuance of the writ of certiorari or any other writ, order or directions

under Article 226 of the Constitution of India to quash and set aside the

order dated 30th January, 2012 passed by the Additional Town

Planning Officer, Navi Mumbai and Khopta.

47. The aforementioned writ petition was heard by this Court

on 9th March, 2012. In the said order, the Counsel appearing for the

respondent Corporation stated that, the petitioners have already put on

notice about the irregularities committed by the petitioners which are 50 wpst10937.12

stated in the notice dated 30th January, 2012. In all there are eight

irregularities in the schedule appended to the said notice. The

petitioners, in reply to the statement of the Counsel appearing for the

Corporation, submitted that they would remove all the irregularities

which cannot be regularized provided the Officer of the Corporation

provides joint inspection on the site. In response to the aforesaid

submission, without prejudice to the rights and contentions in the

petition, the respondent Corporation showed willingness to give one

more opportunity to the petitioners and identify the illegal and/or

irregular structures constructed on the site referred to in the schedule

to the notice dated 30th January, 2010 in particular. The Officer of the

Corporation showed readiness to remain present on the site on 24th

March, 2012 at 11.30 a.m. It was also observed in the said order that,

the petitioners shall keep their representatives at that time on the site

to be accompanied by their architect, if the petitioners so desire. It was

also observed in the said order that, if the petitioners failed to co-

operate in the joint measurement process, that fact be placed on record

by the Officer of the Corporation by way of a report. The hearing of the

matter was deferred till 16th March, 2012.

48. On 16th March, 2012, the Counsel for the petitioners in 51 wpst10937.12

Writ Petition No. 1234 of 2012 submitted that, joint measurement has

been done and the petitioners (builders) have no issue about the

correctness thereof. An order dated 16th March, 2012 further records

that, the Counsel appearing for the builders states that, the factual

position stated in the joint measurement report will have to be taken to

be as it is. He further fairly accepts that, the joint measurement report

indicates that some irregularities have been committed during the

construction of the building in question. Thus, the builder would take

immediate steps in the first place to submit proposal within one week

from 16th March, 2012 for regularization of portion which can be

regularized including by purchasing FSI of the abutting plot, if

permissible in law. The Corporation was directed to take decision

within two weeks. It was further observed that, to the extent, the

unauthorized structures can not be regularized, the builder/occupants

will have to take immediate remedial and corrective steps as would be

stated in the proposed order to be passed by the appropriate authority.

This Court further observed that, in view of the aforesaid arrangement,

nothing would survive for consideration in the petition. However,

hearing of the petitioner was deferred till 13th April, 2012. The matter

was again heard on 27th April, 2012 and was directed to be listed

alongwith Writ Petition No. 10937 of 2012 on 3rd May, 2012. The 52 wpst10937.12

order dated May 3, 2012 of this Court reads thus :

"P .C. :-

During the pendency of this petition,

certain steps were taken pursuant to the directions given by the Court from time to time. During the pendency of this petition which essentially was to challenge the notice issued by the Corporation under Section 53 of the Act, the petitioner submitted regularisation application in respect of structures which are admittedly unauthorised. The Corporation, however, has rejected the said proposal. In that case, the petitioner is required to remove the unauthorised structures. We agree with the submission of the Counsel for the Corporation which is fairly accepted by the petitioner that this petition will not survive for consideration which challenges the notice under Section 53 of the Act and more particularly, because of the position accepted by the parties in the joint measurement undertaken

pursuant to the orders of this Court.

2 Accordingly, this petition is disposed of leaving all questions relating to regularisation of the disputed structures referred to in Order dated 9 th April, 2012 open. That order is already subject matter of challenge in Writ Petition (Stamp) No.10937/2012. All the questions in that behalf will have to be decided on merits and in

accordance with law. "

Accordingly, said writ petition was disposed of leaving all questions

open relating to regularisation of the disputed structures referred to in

Order dated 9th April, 2012.

49. The learned Counsel appearing for the petitioners in Writ 53 wpst10937.12

Petition (St.) No. 10937 of 2012 submitted that, in spite of giving

specific directions by this Court to the respondents to consider the

proposal for regularization which may be submitted by the petitioners

by giving opportunity to all concerned, the respondent No. 2 on his

own unilaterally decided the said proposal without hearing the

petitioners or their Architect in violation of the directions given by this

Court. It is submitted that, the impugned order passed by the authority

is also incomplete in as much as the proposal given by the petitioners

was two fold and the respondent No. 2 has only considered one aspect

of the matter, that too, wrongly and has completely omitted the second

leg of the proposal by not even mentioning the same in his order which

action vitiates the entire order. It is submitted that, the building has

been constructed as per commencement certificate granted by the

respondent Nos. 2 and 3 on 23rd June, 2006. It is submitted that,

there is a odd shaped plot belonging to the respondent No. 1

Corporation which is adjoining the petitioners' plot being Plot Nos. 79

and 80 but said plot is reserved for garden and if otherwise

unbuildable. It is submitted that, in accordance with clause (iv) of Rule

4 of Chapter III of Navi Mumbai Disposal of Lands (Amendment)

Regulations, 2008 framed by the CIDCO for disposal of the plot,

Managing Director of CIDCO - respondent No. 2 herein is empowered 54 wpst10937.12

to allot odd shaped land to the adjoining Licensee or allottee, which

otherwise cannot be disposed off for the reason of non availability of

access or is not developable due to its odd shape or other reasons, for

the same use and with the same FSI the adjoining plot has. It is

submitted that, aforesaid plot apart from odd shaped land is also

unbuildable and not developable in view of the fact that it is shown as

reserved for garden. The another arguments of the Counsel for the

petitioners is that, the respondent No. 1 Corporation has granted

proposal for permitting the use of FSI of land under tree belt in similar

cases and the petitioners were informed that in respect of Plot NOs. D-

67, D-68 and D-69 of Sector-12, Kharghar, tree belt was permitted to

be merged of the said plot only for FSI purposes. According to the

Counsel for the petitioners, the request was made on similar line and

their proposal for regularization by offer to purchase FSI in respect of

adjoining odd shaped plot which is otherwise unbuildable on Plot

No.34-32, in Sector-12 and Plot No. 9 in Sector-6 at Kharghar and for

utilizing FSI available by merging adjoining tree lines of the petitioners'

plot against payment of premium which was permitted CIDCO in case

of Plot No. DE-67, D-68 and D-69 as stated hereinabove.

50. The respondent CIDCO has filed affidavit in reply and also 55 wpst10937.12

additional affidavit in reply and as a matter of fact, has placed on

record the correct factual position based upon the official record that

commencement certificate was issued in favour of the petitioners on

23rd January, 2006 which contained various conditions. Thereafter,

the petitioners/builders submitted revised plan for approval and

amended commencement certificate was issued on 15th June, 2006.

The number of floors and total built up area in both the

commencement certificate issued on 23rd January, 2006 and amended

commencement certificate issued on 15th June, 2006 remained

unchanged and has reflected to be Ground + 21 floors with a total

built up area of 10,094.885 sq. mt. It is submitted that, some internal

changes and changes in the number of units was made in the revised

plan and for this purpose, amended commencement certificate was

issued. The Architect of the petitioners for the first time applied for

occupation certificate on 13th August, 2009, however, as there were

shortcomings in the proposal submitted and therefore, the respondent

No. 3 refused permission for occupation Certificate within one month

by his letter dated 10th September, 2009. Thereafter, it was

responsibility of the petitioner/Architect to have removed or fulfilled

the shortcomings and submitted the proposal of occupation certificate.

However, the petitioners did not submit a proper proposal for 56 wpst10937.12

occupation certificate. Shri. Ravindra Bhaskarrao Patil, Additional

Town Planning Officer, therefore, had issued a notice under Section 53

of the MRTP Act, 1966 on 13th September, 2011 to the builder i.e.

petitioners in Writ Petition (St.) No. 10937 of 2012. Bare perusal of

the said notice which is reproduced hereinabove would clearly show

that, while granting permission for construction, permission was

granted for construction of 97 numbers of Residential Units, 20

numbers of commercial units with 02 numbers of office buildings from

1st to 3rd floor having total 06 numbers of office units were approved.

After submitting proposal for occupation certificate by the

Architect/builder on 13th August, 2009, said occupation certificate was

refused by the office of the respondents vide refusal letter dated 10th

September, 2009 for the reasons mentioned in the said letter.

Thereafter, site was inspected and it has come to the notice that,

development carried out on site is not as per the plans approved by the

CIDCO and it was further observed that, by making internal changes

the numbers of residential units are found increased from 97 to 160

units and as also the same has been done in shops and office units,

where shops have increased from 20 numbers to 38 numbers and office

buildings have also constructed from 1st to 4th floor, without obtaining

due permission from the office of the respondent under Section 45 of 57 wpst10937.12

the MRTP Act, 1966 and therefore, the petitioners were called upon to

reply to the said notice. The said notice and notice dated 13th

September, 2012 was subject matter of the Writ Petition No. 1234 of

2012. In the said writ petition, the Counsel for the petitioner/builder

accepted the position that, the joint measurement has been done and

the petitioners (builder) have no issue about the correctness thereof.

The factual position stated in the joint measurement report has been

accepted by the petitioners. The petitioners have also acknowledged

that, the joint measurement report indicates that some irregularities

has been committed during the construction of the building in question

and therefore, the said writ petition was disposed of.

51. In view of afore stated position, so far challenge to the

notice dated 13th September, 2011 and also to the notice dated 30th

January, 2012 in writ petition No. 1234 of 2012 and in connected writ

petitions has come to an end. The proposal of the petitioners for

regularization of portion which can be regularized including by

purchasing FSI of abutting plot, otherwise permissible in law has been

considered by the respondent authorities and same has been turned

down.

58 wpst10937.12

52. One of the contention of the Counsel appearing for the

petitioners that, odd shaped plot belonging to the respondent No.1

Corporation which is adjoining the petitioners' plot should be allotted

in favour of the petitioners is concerned, in this respect relevant

provisions pressed into service by the petitioners is Clause (iv) of Rule 4

of Chapter III the Navi Mumbai Disposal of Lands (Amendment)

Regulations, 2008 which reads thus :

"Conditions for disposal of plots.

4. Manner of disposal of plots : The Corporation shall dispose off plots by inviting public tenders or by public auction, except for the following categories :

i.......

ii......

iii.....

iv. to the reputed national/international institutes, R and D establishments, Foreign Govt,. Consulates, by considering individual applications at specified rate of lease premium :

Provided that the Managing Director may allot odd-shaped land to the adjoining Licensee/Lessee, which otherwise cannot be disposed off for the reason of non availability of access or is not developable due to its odd shape or other reasons, for the same use and with the same FSI the adjoining plot has, at the base rate suggested in the Land Pricing and Land Disposal

Policy prevailing at the time of allotment of odd shaped land or at the rate at which the original plot is allotted, whichever is higher :

59 wpst10937.12

Provided further that, on application the Managing Director may allot plots on leave and license upto a period of Eleven years for stone/sand quarries, brick kilns, maintenance of garden, playgrounds, temporary Labour camps or

any such temporary activities which shall not create permanent encumbrance on the plots."

53. On careful perusal of clause (iv) of Rule 4 of Chapter III of

the aforesaid Regulations, would make it abundantly clear that, the

powers under Rule 4 sub rule (iv) to allot a plot for such purpose to the

the abutting and already allotted plot owner is permissible if it satisfies

three conditions: (a) it is odd shaped (b) on non developable area/zone

and cannot be used for developable purpose (c) non accessible by any

approach.

54. In this respect, affidavit in reply filed by the CIDCO in

unequivocal language makes a mention that, the plot demanded by the

petitioners is not an odd shaped plot, but it is in such a shape which

can be developed independently if so desired by the CIDCO. The plot is

currently reserved for rotary junction which is important aspect for the

purpose of town lay out. In future, CIDCO in the event of re-

structuring the town layout and cancelling the rotary junction, the said

plot which is not odd shaped has the potential to be used

independently as a completely developable plot. Said plot is also not 60 wpst10937.12

inaccessible but has a direct approach and has a good potential to be

developed in the event of the Respondent-CIDCO deciding to develop

in the future and therefore, none of the necessary conditions required

to be fulfilled are being satisfied and therefore, the request of the

petitioners to the respondent authorities to allot the said plot has no

force and the respondents have rightly rejected the said prayer.

55. The another contention of the Counsel for the petitioners

that, since Plot Nos. 67 and 68 which were reserved for tree plantation

were allotted to the co-operative society and its FSI was allowed to be

used for the construction of such building and hence, the petitioners

should also be allotted the plot and its FSI be used to regularize the

illegal and unauthorized construction of the building in dispute is

concerned, the reply filed by the respondents makes a mention that

said plots were allotted prior to commencement of the construction of

the building by the society whereas the petitioners are demanding to

regularize their illegal and unauthorized construction which is

afterthought. There is an essential difference between the plots so

allotted to the co-operative societies which was prior to the

commencement of the construction and as such approved as per plans

by CIDCO whereas the demand of the present petitioners is of the 61 wpst10937.12

nature to regularize an illegal act which cannot be regularized and

which would set a wrong and dangerous precedent in terms of illegal

construction in the entire city. The affidavit filed by Mr Prakash

Nathuram Mhatre, working as the In-charge Manager (Town Services-

III) of the respondent-CIDCO dated 4th May, 2012 in paragraph-5

mentioned that, pursuant to the provision made in the Navi Mumbai

Disposal of Lands (Amendment) Regulations, 2008, the respondent has

not allotted any odd shaped land or any non developable plot for the

purpose of regularization of unauthorized construction or excess

construction, after coming into force the said Regulation in the year

2008. In paragraph-6, it is further stated that, on the basis of the said

Regulations, 2008, the CIDCO is not empowered to allot such odd

shaped land and/or non developable plots for regularization of such

unauthorized construction and/or excess construction and hence, based

on the present provisions made in the said Resolutions, 2008, even in

future odd shaped land/non developable plots will not be allotted for

the purpose of regularization of unauthorized construction and/or

excess construction. In paragraph-7, it is further stated that, tree belt

adjoining to the Plot Nos. D-67, D-68 and D-69 was not capable of

being independently developed and the allotment was satisfying the

proviso of Regulation 4 of the said Regulations for allotment of odd 62 wpst10937.12

shaped land/non developable land. Therefore, the allotment of the

tree belt was made to the adjoining Licensees. However, there is

categorical statement in the said paragraph that, this allotment was not

made for regularization of unauthorized and/or excess construction.

Therefore, in our considered opinion, the proposal for regularization of

unauthorized illegal/irregular construction of the petitioners i.e. M/s.

Abhishek Builders & Developers has rightly been turned down by the

respondent CIDCO.

56. In Writ Petition No. 1077 of 2007 in the case of Sudhir M.

Khandwala vs. The Municipal Corporation of Greater Mumbai and

others, this Court was dealing with the provisions of MRTP Act, 1966

permitting regularization of the statutory scheme. In the aforesaid

writ petition, the Division Bench of this Court relying upon the

exposition of the Supreme Court in the case of Mahendra Baburao

Mahadik and others vs. Subhash Krishna Kanitkar and others

reported in AIR 2005 SC 1794 in paragraph Nos.117, 118, 119, 120,

121 and 122 held ;

"117. The Hon'ble Supreme Court was considering a case where the first Respondent before it filed the Writ Petition (in the nature of Public Interest Litigation) inter alia for issuance of an appropriate direction to the Bhiwandi Nizampura Municipal Council to demolish a 63 wpst10937.12

building consisting of ground and six upper floors constructed by the Appellants before the Supreme Court. In that Writ Petition, this Court, inter alia, held that regularization of such unauthorized structures would defeat the very purpose of introducing the rule of planned development of the city and this cause of such unauthorized construction must be dealt with sternly. Thereafter, this Court issued directions to take immediate steps to demolish the unauthorized structures in Bhiwandi in accordance with law. It is from this judgment and order of this Court that the Appeal was carried to the Supreme Court and the Hon'ble Supreme Court adverted to the relevant statutory provisions including Sections 44 and 53 of the MRTP Act, 1966 and held as under :

"18. In terms of Section 44 of the MRTP Act, a person intending to raise any construction is required to make an application in respect thereof to the

Planning Authority for permission in such

form and containing such particulars and

accompanied by such documents, as may

be prescribed. Filing of such application

and obtaining such permission concededly

are imperative in character. Such

permission, if granted, remains in force for

a period of one year unless extended

by the Planning Authority.

19. Section 52 contains penal provisions.

Section 53 authorizes the local authority to

direct removal of unauthorized

development. Sub section (1) of Section

53 authorizes the local authority to issue a notice where a development of

land has taken place in violation of the

conditions indicated in Sub section (1) of

Section 52.

38. Once such a notice under Section 52

is served, the persons aggrieved within the

64 wpst10937.12

period specified therein, which in the instant case is one month, must apply for

permission for retention on the land of

the building or works under Section 44 of

the MRTP Act. Only when a permission

is granted, the notice would stand

withdrawn. The question of grant of any

permission would arise only if an application is made therefor. As the Appellants herein had not filed such

application, the Municipal Council was

obliged not only to prosecute the owner

but also to carry out the demolition in

terms of the aforementioned notice dated

6.6.1998.

39. The Municipal Council is a 'local authority as well as planning authority within the meaning of the provisions of Sections 2(15) and 2(19) of the MRTP Act.

40. The Municipal Council being a

creature of statute was bound to carry out

its functions within the four corners

thereof. Being a statutory authority, it was required to follow the rules scrupulously. Concededly, the Municipal

Council is not possessed of any statutory power to regularize unauthorized constructions. Its power is confined to compounding the offences in certain cases. Moreover, even development

charges could not be recovered from the Appellant in respect of unauthorized

constructions in terms of Section 124E(2)

of the MRTP Act.

43. It may be true that certain demands were made upon the Appellants

herein to deposit the development charges

by the Municipal Council but the same were made without prejudice to their

65 wpst10937.12

rights, as would appear from the notice dated 3.11.1998. Demand of the

development charges without prejudice to

the rights of the Municipal Council did not,

thus, create any legal right in favour of the

Appellants. [See Chairman and MD, NTPC

Ltd. Vs. Reshmi Constructions, Builders &

Contractors, (2004) 2 SCC 663].

44. Payment of development charges by itself, therefore, did not lead to

exoneration from the consequence of

commission of an offence or regularization

of unauthorized constructions.

45. The jurisdiction of a local authority is

confined only to deal with application for

grant of permission for construction as contained in Section 44 of the MRTP Act

whether at the initial stage or when a notice is served under Sub section (2) of

Section 53 of the MRTP Act. The power to

grant such permission could be exercised only within the purview of the Building Bye laws.

Therefore, being beyond the scope of

Section 44 of the MRTP Act, the Municipal

Council did not have any jurisdiction to direct regularization of such unauthorized

constructions by reason of the said

resolution or otherwise. The power of the

Municipal Council, it is trite, being

confined to the provisions of the said Acts,

no action could be taken by them contrary

thereto or inconsistent therewith."

118. In paragraph 46, the Hon'ble Supreme Court referred to a decision delivered in Friends Colony Development Committee v State of Orissa and others, ([2004]8 SCC 733), in paragraph 47, it referred to the decision of the Supreme Court in M.I. Builders Pvt. Ltd. v 66 wpst10937.12

Radhey Shyam Sahu and others, ([1999] 6 SCC 464) and in paragraphs 48 and 49 held thus:-

"48. A discretionary power must be exercised

having regard to the larger public interest.

49. In Consumer Action Group and Another

vs. State of T.N. and Others [(2000) 7 SCC

425], this Court held :

"While exercising such a power the authority has to keep in mind the purpose

and the policy of the Act and while granting relief has to equate the resultant

effect of such a grant on both, viz. the public and the individual. So long as it does not materially affect the public cause,

the grant would be to eliminate individual

hardship which would be within the

permissible limit of the exercise of power.

But where it erodes the public safety, public convenience, public health etc. the

exercise of power could not be for the furtherance of the purpose of the Act. Minor abrasion here and there to eliminate

greater hardship, may in a given case, be

justified but in no case affecting the public

at large. So every time the Government exercises its power it has to examine and

balance this before exercising such a

power. Even otherwise, every individual

right including fundamental right is

within, reasonable limit but if it makes inroads into public rights leading to public

inconveniences it has to be curtailed to that extent. So no exemption should be granted affecting the public at large. Various development rules and restrictions

under it are made to ward off possible public inconvenience and safety. Thus,

whenever any power is to be exercised,

the Government must keep in mind,

67 wpst10937.12

whether such a grant would recoil on the

public or not and to what extent. If it does

then exemption is to be refused. If the effect is marginal compared to the

hardship of an individual that may be considered for granting............."

119. The Supreme Court also distinguished its earlier decisions in the case of Corporation of Calcutta v Mulchand Agarwalla, AIR 1956 SC 110 by observing that the said decision was rendered in the facts of that case and considering Section 363(2) of the Calcutta Municipal Act.

120. Once, the statutory scheme has been analysed by the Hon'ble Supreme Court and it rendered an authoritative pronouncement qua identical provisions, then, there is no alternative but to hold that the permission for construction or for retention has to be granted only within the four-corners of the MRTP Act and building bye-laws. Beyond Section 53,the Municipal Corporation does not have any jurisdiction to direct regularization of unauthorized construction. In the light of the clear pronouncement and the observations in paragraph 45 it must be held that the power to permit retention as provided by Section 53(3) of the MRTP Act, 1966 is the only source by which the Corporation could direct regularization of unauthorized constructions. There is no question of the Corporation falling back or relying upon the DC Regulations or any discretionary power of the Municipal Commissioner thereunder. The provision that is permitting such retention or regularization is to be found only within Section 53(3) and Section 44 of the MRTP Act, 1966. It was conceded before the Supreme Court that there is no other statutory power to regularize unauthorized constructions. In these circumstances, reliance placed by the parties before us on the discretionary power of the Municipal Commissioner under the DC Rules, is entirely mis-placed. That discretionary power under Regulation 64 of the DC Regulations is also clear. The discretionary power is to be exercised by the 68 wpst10937.12

Commissioner in specific cases where clearly demonstrable hardship is caused. In such cases, the Commissioner for reasons to be recorded in writing by special permission permit any of the dimensions prescribed by the DC Regulations to be modified, except those relating to floor space indices unless otherwise permitted under these Regulations, provided that the relaxation will not affect the health, safety, fire safety, structural safety and public safety of the inhabitants of the building and the neighbourhood. Therefore, the discretionary power conferred upon the Commissioner has to be exercised firstly in conformity with the intent and spirit of the Regulations. Secondly,these discretionary powers are to be exercised in specific cases where clear demonstrable hardship is caused. Thirdly, it contemplates a special permission which has to be granted for reasons to be recorded in writing by the Commissioner. Fourthly, such special permission permits modification of any of the dimensions prescribed by the DC Regulations, except those relating to floor space indices unless otherwise permitted under these Regulations. Lastly, the relaxation that is contemplated so also the modifications should not affect the health, safety, fire safety, structural safety, etc.. Therefore,these discretionary powers under Regulation 64(b) cannot be said tobe the source of power for regularization or retention of the works. That is a specific power conferred by Section 53 of the MRTP Act, 1966 and as the Supreme Court holds that is the only provision for permitting regularization. Therefore, it is not permissible to hold that Regulation 64 of the Development Control Regulations for Greater Bombay, 1991 would permit the Commissioner to regularize the construction made in Writ Petition No.1077 of 2007. The impugned order is traceable to the aforementioned statutory provision and must be held to be made thereunder.

121. Assuming that the Division Bench judgment in the case of Rajendra Thakkar (supra) could be read to permit such a regularization, that judgment, with 69 wpst10937.12

respect, to the extent it holds that Regulation 64 confers such a power, cannot be held to a good law in the light of the Supreme Court decision referred hereinabove. Apart therefrom, that judgment itself holds that the discretionary power of the Commissioner is not absolute. Regularization is not something which should be granted as a matter of course. Regularization of unauthorized constructions will have to be permitted on case to case basis. It cannot be said as a matter of general rule that unauthorized construction must be regularized if FSI is available or can be generated in the form of TDR from other source by the person/builder. First of all, the limits of FSI are prescribed and the construction at a particular site/plot is allowed considering the FSI generated by the plot. There are specific Regulations for computation of FSI. Once the limits of floor space indices are set out so also the requirement for set back and compulsory open spaces being laid down in the DC Regulations themselves, then, in the garb of considering an application for regularization, the Commissioner or the Planning Authority cannot give a go-bye to these Regulations and stipulations. These are matters which affect the health, safety not only of the inhabitants of the buildings but of the neighbourhood. The DC Regulations contain specific Rules for computation and calculation of FSI `Qua' plots of all sizes, shapes, dimensions etc.. Further, before development permission is granted the Planning Authority has to consider important issues and matters such as public interest and public safety including of the neighbourhood. It has to give proper care and due attention to matters such as congestion, affect of the retention/regularization/new construction on the existing facilities and basic amenities including water supply, roads, etc. If the regularization results in increasing pressure on the existing amenities, then, it would be advisable not to permit such a regularization.

122. We are of the view that the factors enumerated in Regulation 64(b) have to be considered and borne in 70 wpst10937.12

mind including the contents of the development plan of the City/Town, while granting or refusing permission for regularization of unauthorized construction. By their very nature, the factors in this Regulation are illustrative. The plan is a wider concept and exhaustive. Therein, all aspects are outlined. Merely because the builder and developer states that he will be able to generate TDR and load it on to the existing plot/construction, that by itself is not decisive. By such process, all constructions, which are unauthorized and illegal, can be regularized. The result would be that every such person would openly flout the building bye-laws and Regulations and make construction without any adherence thereto and later on, he would apply for retention or regularization by urging that the FSI of some other plot belonging to him can be generated and taken into account for regularization of the subject unauthorized construction. In other words, Developers and Builders would make unauthorized and illegal construction on plot `A' and would urge that they are making construction also on the plot `B', which is in the vicinity. They would bring in the FSI/TDR generated on plot `B' and load it on plot `A' and that would enable regularization of the unauthorized and illegal construction of plot `A'. If such a course is permitted, there shall be increased pressure on the infrastructure and basic amenities available in or around plot `A' and particularly its neighbourhood. That would make the areas in or around plot `A' crowdy. Sometimes constructions are made in narrow lanes and byelanes. The existing roads and lanes are insufficient to meet the increasing traffic. If unauthorized construction is retained and regularized that would mean additional burden on the already inadequate infrastructural facilities. This would endanger the safety and health of the persons in the building on plot `A' and also in its neighbourhood. That is certainly not the intention of the Legislature nor does it further the purpose and object of the DC Regulations or Building Rules/Bye- laws. Hence, we hold that if such loading of TDR is held to be permissible, that would nullify the 71 wpst10937.12

Regulations and Rules pertaining to FSI, open spaces, set backs, etc. It is nobody's case that these Rules do not have a definite role to play in the Planning and Development of a City or Town. These Regulations and Rules have to be strictly adhered to or else the construction would obstruct a road or abut on it automatically. Further, a construction on a plot will be made without keeping any open spaces or without adhering to the restrictions of height of buildings, etc. That is not the intent and purpose, when the Legislature permitted retention of the works or buildings with regard to which a notice under Section 53(1), has been served on the owner. The Legislature has not intended that provision in the planning laws including building bye-laws and regulations relating to health, safety, fire safety, safety of the inhabitants of the buildings and the neighbourhood have to be ignored or brushed aside. Further, it is not intended that permission for regularization should be granted by loading of TDRs and generating of more FSI on the existing plots straightway. Such a course would have disastrous consequences."

57. Upon careful perusal of the discussion in para 117 to 122 in Writ

Petition 1077 of 2007, reproduced herein above, we are in complete

agreement with the said findings/observations therein in respect of

interpretation of the relevant provisions of the said Act dealing with

regularization of the statutory scheme. In view of the said

observations/findings of the Division Bench, we do not feel it necessary

to burden this judgment by discussing same provisions in respect of the

regularization and more particularly when we are in complete

agreement with observations/findings of the Division Bench in Writ 72 wpst10937.12

Petition No. 1077 of 2007.

58. In the said writ petition No. 1077 of 2007, this Court has

also considered the arguments that, unauthorised construction can be

permitted to be regularized construction by loading TDRs or by

condoning or relaxing the restrictions relating to FSI, upon space, set

backs, height of the building etc., and in paragraph-123 held :

"123. The Supreme Court has time and again expressed its serious concern over unauthorized and indiscriminate constructions in cities and big towns. In fact, the Supreme Court has cautioned against liberal use of the power of regularization and retention of unauthorized works and buildings. The Supreme Court has warned that authorities must take into account considerations of public safety and health, protection of environment and ill-effects of unregulated and uncontrolled construction in cities and towns. Therefore, it cannot be said that every unauthorized construction can be permitted to be regularized by loading of TDRS or by condoning or relaxing the restrictions relating to FSI, open space, set backs, height of the building, etc. In individual cases and by applying the standards and rules strictly and rigourously, the authorities must take an informed decision bearing in mind the building regulations, restrictions and conditions therein. The retention of unauthorized works and constructions should not result in wholesale condonation and relaxation or exemption from the Building Rules and Bye-laws or else there will be chaos and break down of the rule of law. Ultimately, planning authorities have been conferred such powers for public good and in public interest."

73 wpst10937.12

59. In the said judgment of the Division Bench in Writ Petition

No. 1077 of 2007 this Court has also considered the decision of the

Supreme Court in the case of Consumer Action Group and another

vs. State of Tamil Nadu and others reported in AIR 2000 SC 3060

from paragraph 125 and 126 and held that the Municipal

Commissioner is not in error in passing the orders and directing

demolition of 8th to 24th floors and pulling down of the same by the

Builder and Developer at his own costs. Division Bench has further

considered the case of flat purchasers and held that, in such cases flat

purchasers are aggrieved but their interest cannot be override those of

the members of the public at large. Their individual rights and interests

are subservient to the concerns for public health and safety. Ultimately,

if they purchase flats without bothering to make inquiries and seeking

details of the construction at site, then, they are themselves to blame.

In this era, where science and technology have advanced to a great

extent so enactments such as Right to Information Act are in place, it is

not unreasonable to expect that the flat purchasers should avail of the

same and seek appropriate and relevant details of the construction

before booking and purchasing flats/tenements in large scale building

projects. If they are carried away by the brochure and the public

advertisements and do not make such inquiries, then, they cannot turn 74 wpst10937.12

around and seek assistance of the Courts. Ultimately, the jurisdiction

under Article 226 of the Constitution of India is extraordinary,

discretionary and equitable. That jurisdiction cannot be exercised

merely because of loss or inconvenience to such flat purchasers. There

are civil and penal laws available to them for redressal of their

individual grievances and complaints. Doors of civil and criminal

courts are open to them. However, they cannot seek a Writ of

Mandamus directing the Planning Authority to regularize unauthorised

and blatantly illegal constructions. That makes a mockery of the rule of

law. This Court while exercising jurisdiction under Article 226 of the

Constitution of India cannot act contrary to law. Its orders and

directions should not flout the planning laws and building regulations.

It has been held by the Supreme Court that this jurisdiction must

confine itself to the limits of law and not travel beyond it. In such

circumstances, the fervent plea of the petitioner to allow retention of

the unauthorized and illegal floors cannot be accepted.

60. Alongwith main writ petition (st.) No.10937 of 2012 there

are two other petitions being W.P. Nos. 2439 of 2012 and 2045 of 2012

are filed by the purchasers of the shop tenements. As discussed

hereinabove, Division Bench of this Court in W.P. No. 1077 of 2007 and 75 wpst10937.12

connected writ petitions thereto, has answered in detail about the

contentions raised therein by the purchasers, in our opinion, for the

reasons given in this judgment and for the reasons which are given by

the Division Bench in the said authoritative pronouncement in

paragraph-126, the aforesaid writ petitions should also fail.

61. In all three writ petitions, one common point is raised by

the petitioners that, various authorities have granted No Objection

Certificate or electricity supply, water connection etc., and therefore,

occupation certificate ought to have been granted by the respondents.

In our opinion, merely because authorities have granted permission for

water connection, electricity supply or No Objection Certificate etc.,

that itself would not lead to the conclusion that, the respondent

planning authority should regularize irregular construction over and

above the permissible construction as per commencement certificate

issued by the CIDCO on 23rd January, 2006 and the amended

commencement certificate issued on 15th June, 2006. Therefore, there

is no substance in the arguments of the Counsel appearing for the

petitioners that, other authorities have granted no objection certificate

or water connection or electricity supply connection etc., and

therefore, the respondent planning authority is bound to grant 76 wpst10937.12

occupation certificate.

62. Another common contention taken in all the writ petitions

is that, the Chief Controller of Unauthorized Construction Cell of the

first and second respondent has vide No Objection Certificate dated

2nd June, 2009 specified that, there are no unauthorized hutments,

structures, debris etc., on plot other than building structure approved

by Building Department of CIDCO and therefore, the respondent

CIDCO was obliged to grant occupation certificate. We do not find any

substance in the said arguments since the Chief Controller of

Unauthorized Construction Cell of the first and second respondent has

to certify only in respect of any unauthorized hutments, structures,

debries etc., on plot. He is not authority who has granted

commencement certificate or permission to construct premises.

Therefore, his certificate is confined only qua unauthorised hutments,

structures, debris etc., on plot, if any.

63. Another contention of the petitioners in Writ Petition No.

2439 of 2012 that, no notice of any site inspection was ever given by

the respondent Nos. 1 and 2 to the builder and therefore, any site

inspection without notice to the developers is of no consequences and 77 wpst10937.12

cannot be relied upon. The said contention/submission is devoid of

any merits and said deserves to be rejected in view of the fact that, in

Writ Petition No. 1234 of 2012 this Court in its order dated 9th March,

2012 observed that, the officer of Corporation shown readiness to

remain present at the site on 24th March, 2012 at 11-00 a.m. and

further it was observed in the said order that, the petitioners shall keep

their representative at that time on the site to be accompanied by their

Architect, if the petitioners so desire and thereafter, joint inspection has

been carried out and report is submitted.

64. Therefore, in our considered opinion, viewed from any

angle, there is no any merit in the petitions. In view of the discussion

hereinabove, all the three writ petitions are dismissed. Rule stands

discharged. No order as to costs.

(S. S. SHINDE, J.) (A. M. KHANWILKAR, J.)

sut/JUNE12