IN THE HIGH COURT OF JUDICAUTURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURSIDICTION
WRIT PETITION NO. 1077 OF 2007
WRIT PETITION NOS.3123 OF 2006, 1124 OF 2007,
1130 OF 2007, 1190 OF 2007, 1428 OF 2007, 1364 OF 2009, 1572 OF 2009, WRIT PETITION (LODGING) NOS.1280 OF 2007, 1467 OF 2007, PUBLIC INTEREST LITIGATION NO.100 OF 2008, AND
WRIT PETITION NO. 1379 OF 2008 (A.S.)
WRIT PETITION NO. 1077 OF 2007
Sudhir M. Khandwala ) Adult, Occ.: Business ) residing at 2nd Lane, Khetwadi Sangli ) 1st Floor, Sahakari Bhavan, Mumbai 04. ).. Petitioner Versus
1) The Municipal Corporation of Greater ) Mumbai, Mahapalika Marg, Mumbai )
(Summons to be served on the )
Municipal Commissioner, Municipal )
Corporation of Greater Mumbai )
2) The Municipal Commissioner ) Municipal Corporation of Greater Mumbai )
3) Executive Engineer, Building Proposal ) MCGM, R-Ward, Kandivali (W) )
Mumbai 400 067. )
4) The Slum Rehabilitation Authority ) Grihnirman Bhavan, Bandra (East) )
5) M/s. Ravi Real Estate Developers Pvt. Ltd. ) A Company incorporated under the ) Companies Act, 1956 having registered ) office at : 76, Laxmi Palace, Mathuradas ) Lane, Kandivali (West), Mumbai 400067 ) 6) Shri Jayesh T. Shah ) in his capacity as Director of ) a) M/s.Ravi Real Estate Developers Limited )
b) M/s.Ravi Ashish Land Developer Limited )
and in capacity as Partner of ) a) M/s.Monarch & Querishi Builders ) b) M/s.Ravi Foundation ) c) M/s.New Monarch Builders ) d) M/s.Ravi Developments ) having office at 76, Laxmi Palace ) Mathuradas Lane, Kandivali (West) ) Mumbai 400 067. ) 7) Arun Damji Gada ) Proprietor of M/s Nova Nirman Nigam ) 104, Divya Gaurav Gagan, Gaurav Garden ) Complex, Kandivili (W), Mumbai 400067 )..Respondents Mr. V.A. Thorat, Senior Advocate, a/w Mr. P.J. Thorat for the Petitioner.
Mr. K.K. Singhvi, Senior Advocate, a/w Mrs.V.S. Gharapure for the Mumbai Municipal Corporation.
Mr. J.G. Reddy i/b Utangale & Co. for Respondent No.4. Mr. N.H. Seervai, Senior Advocate, a/w Mr. R.N. Narula and Mr.Anuj Narula i/b M/s. J.Naruyla & Associate for Respondent Nos.5 and 6.
Mr. F.E. D'itre, Senior Advocate, a/w. Ms.Rajani Iyer, Senior Advocate, and Mr. Birendra Saraf i/b Y.N. Adhia for Respondent No.7.
Ms.Geeta Shastri, Assistant Government Pleader, for the State. Mr. Sanjay Jain i/b Nityoah Sunil for the Applicant. 3
WRIT PETITION NO.3123 OF 2007
M/s. Goolamally Hasanjee ) a Partnership firm registered under the provisions ) of Indian Partnership Act, carrying on business ) from 76/78, Chakala Street, Patel Building ) Mumbai 400 003. ).. Petitioner Versus
1) The Municipal Corporation of Greater ) Mumbai, a statutory body having its ) Head Office at Mahapalika Marg ) Mumbai 400 001. ) 2) Executive Engineer, Building Proposals ) (South), having his office at "E" Ward ) Byculla, Mumbai 400 008. ) 3) State of Maharashtra ) through Urban Development Dept. ) Mantralaya, Mumbai 400 032. )..Respondents Mr. S.U. Kamdar a/w Mr. N.M. Shah for the Petitioner. Mr. Shekhar Ingavale, Assistant Government Pleader, for the State. Mr. K.K. Singhvi, Senior Advocate, a/w Mrs.V.S. Gharapure for the Mumbai Municipal Corporation.
WRIT PETITION NO.1124 OF 2007
Rameshchand S. Dhanesha ) an Adult of Mumbai, residing at 29, Second ) Floor, Girgaum Adarsh Co-operative Housing ) Society Ltd., Goregaonkar Lane, Girgaon ) Mumbai 400 004. )..Petitioner Versus
1) Municipal Corporation of Greater Mumbai ) a Local Statutory Body through its )
Commissioner of Municipal Corporation of )
Greater Mumbai, having its office at )
Mahapalika Marg, Fort, Mumbai 400 001 )
and having its Branch Office through )
Asstt. Commissioner of Municipal )
Corporation at P/North Ward Office )
1st Floor, Liberty Garden, Malad (West) )
Mumbai 400 064. )
2) Smt. Hema Anil Shah ) Legal heir/wife of deceased Shri Anil K.Shah)
an Adult of Mumbai, residing at Sonabai )
Chawl, Room No.__, Shivaji Chowk )
144 Daftary Road, Malad (West) )
Mumbai 400 097. )
3) Anilkumar Manilal Prajapati ) an Adult of Mumbai, residing at )
Rameshchand S. Dhanesha Chawl, )
144, Daftary Road, Malad (East) )
Mumbai 400 097. )..Respondents Mr. M.B. Jadhav for the Petitioner.
Mr. K.K. Singhvi, Senior Advocate, a/w Ms.Aruna Savla for the Mumbai Municipal Corporation.
WRIT PETITION NO.1130 OF 2007
Bhupendra Rajaram Gupta alias Shah ) aged 24 years, having address at Rajaram ) Gupta Chawl, Sainath Anmol Nagar, Cutting ) No.10, Appapada Kurar Village, Malad (E) ) Mumbai 400 097. )..Petitioner Versus
1) Municipal Corporation of Greater Mumbai ) a Municipal Corporation duty constituted ) under Mumbai Municipal Corporation ) Act, 1888 having its address at Mahapalika ) Marg, Opp. CST Railway Station, Fort ) Mumbai 400 001. ) 2) Asst. Commissioner ) P/North Ward Office, Liberty Garden ) Malad (West), Mumbai 400 064. ) 3) Vijay Bhagvansing Chauhan alias Vijay ) Marwadi, an adult having address at ) Shivkrupa Welfare Society, Azaz Nagar ) Op. Sir D.S. High School, R.S. Marg ) Malad (East), Mumbai 400 097. ) 4) Koushlendra Prabhunath Dubey ) An adult of Bombay having address at )
Rajaram Gupta Chawl, Anand Nagar )
Appa Pada, Malad (East), Mumbai 400 097. )..Respondents Mr. V.S. Deokar for the Petitioner.
Mr. K.K. Singhvi, Senior Advocate, a/w Mrs.V.S. Gharapure for the Mumbai Municipal Corporation.
WRIT PETITION NO.1190 OF 2007
Ramprasad Soni ) of Mumbai Indian Inhabitant residing at ) 1/1, Satyam Building, Kalina-Kurla Road ) Santacruz (East), Mumbai 400 098. )..Petitioner Versus
1) Subhash Satyapal Singh ) Indian Inhabitant of Mumbai having ) address at Makhija Building, Church Road ) Kalina, Mumbai 400 029. ) 6
2) Municipal Corporation of Greater Mumbai ) having their head office at Mahapalika )
Building, Mahapalika Marg, Fort )
Mumbai 400 001. )..Respondents Mr. A.C. Singh a/w Mr. D.R. Shah for the Petitioner. Mr. K.K. Singhvi, Senior Advocate, a/w Mrs.V.S. Gharapure for the Mumbai Municipal Corporation.
WRIT PETITION (LODGING) NO.1280 OF 2007
1) Tulsi Tower Co-operative Housing Society ) Limited, a registered society having its )
office at Tulsi Tower Building, P.F. 188, )
51th Road, TPS III, Borivali (West) )
Mumbai 400 092. )
2) Bharat J. Patel ) Flat No.1001, 10th Floor )
3) Alpesh P Patel ) Flat No.102, 10th Floor )
4) Kalpesh B. Dhamalia ) Flat No. 1003, 10th Floor )
5) Manji R. Sawani ) Flat No.1101, 11th Floor )
6) Surekha Devichand Rawal ) Flat No.1102, 11th Floor )
7) Navin Ramjibhai Patel ) Flat No.1103, 11th Floor )
8) Mahendra A. Patel ) Flat No.1201, 12th Floor )
9) L.K. Sukhadia ) Flat No.1202, 12th Floor )
10) Alpesh Lakhubhai Patel ) Flat No.1203, 12th Floor ) Flat Nos.1301, 1302, 1303 and 1401, 13th ) & 14th Floors, All adults, Indian Inhabitants ) residing in their respective flats as above ) situated at Tulsi Tower Bldg., Tulsi Tower ) Co-op. Hsg. Society Ltd., 51th Road, ) T.P.S. III, Borivali (West), Mumbai 400 092 )..Petitioners Versus
1) Municipal Corporation of Greater Mumbai ) Body Corporate incorporated under BMC ) Act, 1888, having its head office at ) Mahapalika Building, Mahapalika Marg ) Opp. C.S.T., Mumbai 400 001. ) 2) Municipal Commissioner ) Mumbai Mahanagar Palika having office ) at Mahapalika Building, Mahapalika Marg ) Opp.C.S.T., Mumbai 400 001. ) 3) Assistant Engineer (B.P) W.S. "R" Ward ) Mumbai Mahanagar Palika having office ) at W.S. "R" Ward, Dr.Babasaheb Ambedkar ) Market Bldg., Kandivali (West) ) Mumbai 400 067. ) 4) Jyotsna Construction Pvt. Ltd. ) a Company incorporated under Companies )
Act and carrying on business of building )
construction as Developers/Builders )
having office at 1, Hormestead, 16, )
Dattatray Road, S.V. Road, Santacruz (West))
Mumbai 400 054 and also office at Benzer )
Tower, 2nd Floor, Behind Bhor Industries )
Borivali (E), Mumbai 400 066. )
5) Dhirubhai Nagarjibhai Mehta ) 6) Nitinkumar Nagarjibhai Mehta ) 7) Manikumar Nagarbhai Mehta ) 8
8) Vinaykumar Nagarjibhai Mehta ) 9) Pradeep Nagarjibhai Mehta ) 10) Deepak Nagarji Vashi ) 11) Jyotsnaben Nagarjibhai Mehta ) 12) Rashmikant Ranchhodji Desai ) 13) Shobhna Rashmikant Desai ) All adults, Indian Inhabitants, Nos.5 to 13 ) being Directors and officials of Jyotsna ) Construction Pvt. Ltd. having office at ) 1, Hormestead, 16, Dattatray Road, S.V. ) Road, Santacruz (West), Mumbai 400 054. )..Respondents Mr. O.P. Pande i/b Pande & Co. for the Petitioners. Mr. K.K. Singhvi, Senior Advocate, a/w Ms.S. Ajithkumar and Mrs.V.S. Gharapure for
the Mumbai Municipal Corporation.
Mr. R.S. Mishra for Respondent Nos.4 and 7.
WRIT PETITION NO.1428 OF 2007
1) Dr. Renu Dilip Agarwal ) Age 33 years, Occupation : Doctor ) 2) Dr. Jyoti Rajiv Agarwal ) Age 37 years, Occupation : Doctor ) Both having their address at ½, Ground ) Floor, Divya Stuti, Wing B, Survey No. 261 ) CTS No.620 (Part), Gen. A.K. Vaidya Marg ) Film City Road, Goregaon (East) ) Mumbai 400 063. )..Petitoners Versus
1) State of Maharashtra ) (Summons to be served on the learned )
Government Pleader, High Court, O.S. )
2) The Secretary ) Urban Development Department )
Government of Maharashtra, Mantralaya )
Mumbai 400 032 )
(Summons to be served on the learned )
Government Pleader, High Court (O.S.) )
3) The Additional Collector and the Competent) Authority, [Urban Area Land Holding] )
(Summons to be served on the learned )
Government Pleader, High Court [O.S.] )
4) The Chief Executive Officer ) Slum Rehabilitation Authority )
Griya Nirman Bhavan, Bandra (E) )
Mumbai 400 051. )
[Summons to be served on the learned )
Government Pleader High Court [O.S.] )
5) Municipal Corporation of Greater Mumbai ) A Statutory Authority established under )
the provisions of Bombay Municipal )
Corporation Act, 1888 having its head )
office at Mahanagarpalika Bhavan, CST )
Mumbai Pin 400 001. )
6) The Municipal Commissioner of Greater ) Mumbai, having his office at Mahanagar- )
-palika Bhavan, C.S.T., Mumbai Pin 400001 )
7) The Sub Registrar, Borivali ) Borivali, Mumbai )
[Summons to be served on the learned )
Government Pleader High Court [O.S.] )
8) The Sub Registrar, Goregaon Mumbai ) [Summons to be served on the learned )
Government Pleader High Court [O.S.] )
9) The Sub-Registrar, Malad, Malad, Mumbai ) [Summons to be served on the learned )
Government Pleader, High Court [O.S.] )
10) M/s Ravi Ashish Estate Land Developers ) Ltd. (formerly known as M/s. Aashis Land ) Developers Ltd.) A Company registered ) under the Companies Act, 1956 having its ) office at 76 Laxmi Palace, Mathuradas ) Bhavan, Kandivali (W), Mumbai 400067. ) 11) Shri Jayesh Tokershi Shah ) in his capacity as Director of ) a) M/s.Ravi Real Estate Developers Limited ) b) M/s.Ravi Ashish Land Developer Limited ) and in capacity as Partner of )
a) M/s. Monarch & Qureshi Builders ) b) M/s. Ravi Foundation ) c) M/s New Monarch Builders ) d) M/s. Ravi Developers ) e) M/s. Yash Developments ) having office at 76, Laxmi Palace ) Mathuradas Lane, Kandivali (West) ) Mumbai 400 067. ) 12) Divya Stuti Co-operative Housing Society ) Ltd., A co-operative society registered under ) Maharashtra Co-operative Socieities Act ) having its registered office at Divya Stuti ) Building, Kannyachapada, Gen. A.K. Vaidya )
Marg, Goregaon (East), Mumbai 400 063 )
through its Secretary, Anil Tiwari, Adult ) Occupation : Business, residing at 202-A ) Divya Stuti, Kannyachapada, Gen. A.K. ) Vaidya Marg, Goregaon (East), ) Mumbai 400 063. )..Respondents Mr.P.J. Thorat for the Petitioner.
Ms.Geeta Shastri, Assistant Government Pleader, for the State. Mr. K.K. Singhvi, Senior Advocate, a/w Mrs.V.S. Gharapure for the Mumbai Municipal Corporation.
Mr. R.N. Narula a/w Mr.Anuj Narula i/b J.Narula & Associates for Respondent Nos.10 and 11.
Mr. J.G. Reddy for Respondent No.4.
WRIT PETITION (LODGING) NO.1467 OF 2007
Zarar Qureshi (Zoro) ) residing at ALJ Residency, Flat No. 201 ) 2nd Floor, ALJ Residency, 49/C, Pali Naka ) Bandra (West), Mumbai 400 050. )..Petitioner Versus
1) Municipal Corporation of Greater Mumbai ) A body Corporate, incorporated under the )
provisions of Mumbai Municipal )
Corporation Act, 1888 having its head )
office at Mahapalika Bhavan, Mahapalika )
Marg, Fort, Mumbai 400 001. )
2) Bhati Homes Pvt. Ltd. ) Builders & Developers having their office )
at 151, Accost Building, Ground Floor )
Opp. Memon Bank, Pali Road, Bandra )
(West), Mumbai 400 050. )
3) Iqbal Bhati ) Director of Defendant No.2 having office )
at 151, Accost Building, Ground Floor )
Opp. Memon Bank, Pali Road )
Bandra (West), Mumbai 400 050. )
4) Shamima Khatoon ) An adult, Indian Inhabitant of Mumbai )
Residing at Flat No. 601 )
5) Oscar Pereira ) An adult, Indian Inhabitant of Mumbai )
Residing at Flat No. 602 )
6) Qashim Shaikh ) An adult, Indian Inhabitant of Mumbai )
Residing at Flat No. 603 )
7) Zulekha Ghori ) An adult, Indian Inhabitant of Mumbai ) Residing at Flat No. 701 ) 8) M/s Volga Spices Pvt. Ltd. ) a Company incorporated under the ) provisions of Companies Act, 1956 ) through its Director Mr.Tufail Ahmed ) Shaikh, Residing at Flat No.702 ) Nos.4 to 8 all having their respective flats ) ALJ Residency, 49/C, Pali Naka ) Bandra (West), Mumbai 400 050. ) 9) M/s. H.M. Jhaveri & Sons ) C/o Mr. Ashwin Jhaveri ) Madhav Apartment, 2nd Floor, S.V. Road ) Andheri (West), Mumbai 400 058. )..Respondents Mr. R.R. Sharma for the Petitioner.
Mr. K.K. Singhvi, Senior Advocate, a/w Mrs.V.S. Gharapure for the Mumbai Municipal Corporation.
Mr. D.H. Mehta a/w Mr. D.D. Mehta i/b Divya Shah Associates for Respondent No.2.
Mr. M.D. Pol i/b Auroma Law for Respondent Nos.4-8. ALONG WITH
PUBLIC INTEREST LITIGATION NO. 100 OF 2008
1) Sudhir M Khandwala ) Age 52, Adult, Occ. Business ) residing at 2nd Lane, Khetwadi Sahkari ) Bhawan, Mumbai 04. ) 2) Dhananjay M Pandey ) Anand Apartment, B/105, Thakur )
Complex, Kandivali (East), Mumbai 400101 )..Petitioners Versus
1) The State of Maharashtra through the ) Education Department and the Urban )
Development Department (through the )
learned Government Pleader, High Court )
[O.S.], Bombay. )
2) The Additional Collector and the Competent) Authority (Learned Government Pleader )
High Court [O.S.], Bombay )
3) The Municipal Corporation of Greater ) Mumbai, a Statutory Authority established )
under the provisions of Bombay Municipal )
Corporation Act, 1888 having its head )
office at Mahanagarpalika Bhavan, C.S.T. )
Mumbai 400 001. )
4) The Municipal Commissioner having office ) at Mahanagarpalika Bhavan, C.S.T. )
Mumbai 400 001. )
5) The Chief Engineer (DP) ) having ofice at Mahanagarpalika Bhavan )
C.S.T., Mumbai 400 001. )
6) The Education Officer having office at ) Mahanagarpalika Bhavan, C.S.T., )
Mumbai 400 001. )
7) The Executive Engineer, Building ) Proposal, R Ward, having office at )
Kandivali (W), Mumbai 400 067. )
8) Jayesh T. Shah in his capacity as ) a) Constituted Attorney of Bai Motibai )
Education Trust and others )
b) Partner of M/s Yash Developments )
having office at 76, Laxmi Palace )
Mathuradas Lane, Kandivali (West) )
Mumbai 400 067. )
9) Pradeep Damji Shah ) Constituted Attorney of Mr. Jayesh T. Shah ) & Ors. Partner of M/s.Neha Developer ) having office at 6, Shyam Bhuvan ) Kandivali (West), Mumbai 400 067. )..Respondents Mr. U.P. Warunjikar i/b Mr.A.G. Purohit for the Petitioners. Mr. K.K. Singhvi, Senior Advocate, a/w Mrs.V.S. Gharapure for the Mumbai Municipal Corporation.
Mr. R.N. Narula i/b Mr.J. Narula & Associates for Respondent No.8. Mr.S.U. Kamdar a/w Mr. D.H. Mehta i/b D.M. Legal Associates for Respondent No.9.
Mr. N.P. Pandit, Assistant Government Pleader, for the State. ALONG WITH
WRIT PETITION NO. 1572 OF 2009
1) Mrs. Asha wife of Govind Garg ) Age 52 years ) 2) Mr. Govind G. Garg, age 55 years ) presently residing at Flat No.2603 ) situate in the building known as ) Maharaja Retreat, Film City Road ) Goregaon (E), Mumbai 400 063. )..Petitioners Versus
1) The State of Maharashtra ) to be served through Government Pleader ) High Court, Bombay. ) 2) Mr. Sajjan Bajoria, of Bombay, Indian ) Inhabitant, residing at Flat No.B/1701 ) Aster Tower, Mhada, Vasant Valley Phase ) II, Film City Road, Goregaon (E) ) Mumbai 400 063. ) 15
3) Ravi Ashish Land Developers Ltd. ) a Company incorporated under the )
provisions of Companies Act having )
their office situate at Laxmi Palace )
76, Mathuradas Road, Kandivali (W) )
Mumbai 400 067. )..Respondents Mr. A.M. Saraogi for the Petitioners.
Ms.S.M. Dandekar, Assistant Government Pleader, for the State. Mr.R.N. Narula i/b J.Narula & Associates for Respondent No.3. ALONG WITH
WRIT PETITION NO. 1379 OF 2008 (APPELLATE SIDE) 1) Sudhir M. Khandwala, age 58 years ) Adult, Occ.: Business, having address )
at 2nd Lane, Sangli, 1st Floor, )
Sahakari Bhavan, Mumbai 400004 )
2) Mr. Rajesh Mehta ) Srushti-C Building, 1st Floor )
Gaurav Gardens, Kandivali (W) )
Mumbai 400 067. )..Petitioners Versus
1) The State of Maharashtra through ) Principal Secretary, Urban Development )
Department, Mantralaya, Mumbai 400032 )
2) The Konkan Housing and Area Development) Board, Griha Nirman Bhavan )
3) The Mira Bhayander Municipal Corporation ) Main Bulding, Shivaji Marg, )
Bhayander (East), District Thane. )
4) Additional Collector and Competent ) Authority, (Urban Area Land Holding) ) Collectorate, Thane. ) 5) Slum Rehabilitation Authority ) Griha Nirman Bhavan, Bandra (East) ) Mumbai. ) 6) Municipal Corporation for Greater Mumbai ) a statutory authority constituted under the ) Bombay Municipal Corporation Act, 1888 ) and having its head office at Mahanagar ) Palika Building, CTS, Mumbai 400 001. ) 7) Shri Jayesh Tokershi Shah ) in capacity as Partner of ) a) M/s.Ravi Developments ) b) M/s.Monarch & Quereshi Builders ) c) M/s.Ravi Foundation ) d) M/s.New Monarch Builders ) e) M/s.Yash Developments ) and in his capacity as Director of ) a) M/s.Ravi Real Estate Developers Limited ) b) M/s.Ravi Ashish Land Developer Limited ) c) M/s.Ravi Infrastructure & Leasing ) d) M/s.Ravi Jyot Finance & Leasing P. Ltd. ) e) M/s.Ravi Nirman Nigam Ltd. ) f) M/s.Ravi Gruh Nirman Ltd. ) g) M/s.Vijay Kamal Properties Pvt. Ltd. ) having office at 76, Laxmi Palace ) Mathuradas Lane, Kandivali (West) ) Mumbai 400 067. )..Respondents Mr.A.V. Anturkar, Senior Advocate, a/w Mr. P.J. Thorat for the Petitioners.
Mr.S.D. Rairkar, Assistant Government Pleader, a/w Mr. S.R. Nargolkar, Assistant Government Pleader, for the State. Mr. K.K. Singhvi, Senior Advocate, a/w Mrs.V.S. Gharapure for the Mumbai Municipal Corporation.
Mr. R.S. Apte, Senior Advocate, for Respondent No.3. Mr. G.D. Utangale a/w Mr.Suresh Patil i/b M/s.Utangale & Co. for Respondent No.5.
Mr.R.Narula a/w Mr.Anuj Narula i/b J.Narula & Associates for Respondent No.7.
WRIT PETITION NO.1364 OF 2009 (ORIGINAL SIDE)
1) Mr.Jayesh Thakrashi Shah, Age 47 years ) of Mumbai, Indian Inhabitant, Partner of ) the Petitioner No.2 having his office at ) 76, Laxmi Palace, Mathuradas Lane ) Kandivali (W), Mumbai 400 067. ) 2) M/s.Ravi Developments ) duly registered partnership firm carrying ) on business at 76, Laxmi Palace, ) Mathuradas Lane, Kandivali (E) ) Mumbai 400 067. )..Petitioners Versus
1) The State of Maharashtra ) through its Secretary, the Urban ) Development Department, Mantralaya ) Mumbai 400 032. ) 2) Mira Bhayander Municipal Corporation ) Mody Building, Chhatrapati Shivaji Marg ) Bhayander (East), District Thane. )..Respondents Mr. R.N. Narula i/b J.Narula & Associates for the Petitioners. Mrs. M. Kajale, Assistant Government Pleader, for the State. Mr. M.S. Lagu for Respondent No.2.
CORAM : SWATANTER KUMAR, C.J.,
S.C. DHARMADHIKARI, J.
JUDGMENT RESERVED ON : 8TH DECEMBER 2009 JUDGMENT PRONOUNCED ON : 16TH DECEMBER 2009
JUDGMENT : (PER DHARMADHIKARI, J.)
Rule in all the Writ Petitions. Rule made returnable forthwith. By consent of parties, petitions are heard finally.
2. These Writ Petitions and Public Interest Litigations were heard together. Although, some of the points in them are common, it would be necessary to refer to the facts in each of these Writ Petitions. However, majority of them involve the common issue, namely, unauthorized works, irregularities and illegalities in construction of buildings and the power of the Planning and Municipal authorities to regularize such acts of Builders and Developers.
I) WRIT PETITION NO. 1077 OF 2007
3. In this Writ Petition, the Petitioner Sudhir Khandwala has approached this Court on the basis that he is residing presently in South Bombay but he is a purchaser of Flat Nos.1004A and 1004B, 10th Floor, Gaurav Gagan Building constructed in Kandivali (West), Mumbai 400067.
4. It is his case that the Respondent No.1 is the Mumbai Municipal Corporation which is a body corporate incorporated under 19
the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to for short as "MMC Act, 1888"). Respondent Nos.2 and 3 are its Officers. Respondent No.4 is the Slum Rehabilitation authority constituted under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (hereinafter referred to for short as "the Slum Act"). It is common ground that Respondent Nos. 1 to 3 are also the authorities under the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to for short as "MRTP Act").
5. Respondent No.5 is a Private Limited Company carrying on business as builder and developer. Respondent No.6 is the Director of this Company.
6. In this Writ Petition, an order was made after hearing both sides that Respondent No.7 be impleaded as party Respondent. It is a proprietary concern of one Arun Damji Gada. Since it was stated that Respondent No.7 is also responsible for construction of the building in question that the impleadment was ordered by us.
7. The Petitioner states that he is aggrieved by an order dated 14th May 2007 passed by the Municipal Commissioner (Respondent No.2) directing the builder and developer to demolish 20
all floors above the 7th floor of Gaurav Gagan building. The Petitioner states that he and the other flat purchasers in this building are aggrieved by the order of the Municipal Commissioner.
8. It is the case of the Petitioner that he purchased two flats from Respondent No.6 under two registered Agreements for Sale dated 4th March 2002. He has paid the major/substantial portion of the consideration by obtaining loans from Standard Chartered Bank and by mortgaging these flats. It is the case of the Petitioner that the Respondent No.5 made an application for development permission through Respondent No.6. The permission for development was granted by Respondent Nos.1 to 3. The plans were initially sanctioned for a building consisting of stilt plus seven upper floors on 11th January 1992. The Commencement Certificate was granted on 15th September 1992. It is stated that at the time of inspection of Respondent No.3, it was noticed that the building was constructed upto 24th floors and therefore a stop work notice under Section 354 of the MMC Act, 1888 was issued on 2nd December 1992. Similarly, action under Section 53(1) of the MRTP Act was also initiated on 24th October 2002. In response to these notices, Respondent No.5 through an Architect applied for regularization of the work as in his opinion the work was capable of being regularized. 21
9. It is the case of the Petitioner that in the meanwhile, two Public Interest Litigations were filed in this Court and one of them was PIL No. 379 of 2003. That was filed by one Rajendra Thakkar. There was another PIL being Writ Petition No. 2822 of 2007 that was filed by Bhrastachar Nirmulan Sanghatana. Both PILs were disposed of by a common judgment and order of this Court dated 5th May 2004. The Division Bench issued certain directions pursuant to which objections/ suggestions from affected persons were submitted to the Municipal Commissioner. Accordingly, the Petitioner and other flat purchasers made various submissions to Respondent Nos.1 to 3 from time to time that included a written submission dated 29th March 2007.
10. It is in pursuance of these directions that the Respondent No.2 passed the order impugned in this Writ Petition directing demolition of the floors above 7th floors within 60 days from the date of this order. Resultantly, the flats which are agreed to be sold by the Respondent No.5 to the Petitioner are directed to be demolished. Those flats are on the 10th floor. Therefore, it is clear that the Petitioner is an aggrieved and affected party.
11. This Writ Petition was placed before a Single Judge of this Court in the Summer Vacation i.e. 25th May 2007. After hearing 22
the learned Senior Counsel appearing for the Petitioner, this Court directed issuance of notice and further ordered all parties to maintain status quo as of that date in so far as the 8th to 24th floors of the said building.
12. When the matter appeared on 5th June 2007 before the Division Bench, this Court directed filing of affidavit in reply and rejoinder and production of original records. The status quo orders were continued and the Respondents-developers were restrained from selling their rights on the basis of the Transfer Development Right (hereinafter referred to for short as "TDR").
13. The matter appeared on 29th June 2007 and the Court noticed that the Municipal Corporation has not filed a complete affidavit. The Municipal Commissioner was directed to file an affidavit particularly dealing with the source of the power of regularization, use of the said power and explaining how 24 storied structure came up in this case, so also what action the Municipal Commissioner proposes to take against the Officers incharge of the area. In the meanwhile, this Court directed Respondent Nos.5 and 6 to file a list of their properties as well as projects which they were developing in the city of Mumbai and the projects for which they have submitted plans to the Corporation. The interim order was 23
directed to be continued and the builders in these cases were restrained from selling, utilizing the TDR available to them or loading it against the structure.
14. The matter appeared on 20th July 2007 along with other Writ Petitions as it was stated that several Petitions involving more or less identical questions are filed in this Court. Clubbing them all, this Court directed filing of affidavits in all matters and thereafter impleading Respondent No.7 in this Petition as well.
15. On 29th April 2008, the Court heard the arguments of the Petitioners in this matter and thereafter directed production of original files and more particularly sanctioned plans. Thereafter, the matter was argued again. After the arguments of the Petitioner were completed, the matter was adjourned on 20th June 2008 on which date the Corporation argued and concluded its arguments. The other parties did not get sufficient time on that day and it was brought to our notice that their replies were also not filed . Hence, the Court directed that replies should be filed or else their right to file replies would be forfeited. Matters were adjourned to 10th July 2008.
16. It must be noticed that from April 2007 to July 2007, this Bench was available. Later on, on account of the matters being 24
part-heard, they were retained by this Bench. As and when the Bench could assemble, they have been heard. It is in these circumstances, that the arguments have been spread over.
17. The impugned order proceeds on the basis that in the afore-mentioned Public Interest Litigations, the Court directed that tentative orders for regularization in 128 cases are not approved and the Municipal Commissioner to reconsider them in accordance with the directions issued. The directions were that the power and duty to decide the question of retention/regularization of any unauthorized development or grant of any modification/relaxation by special permission, will not be delegated by the Municipal Commissioner to any other officer. The Commissioner was to take the opinion of the concerned Engineers but the final decision must be of the Commissioner and he is obliged to record reasons, though in brief. The next direction was while deciding the issue/question of regularization/retention, the Municipal Commissioner will consider all representations of affected parties including the issue of hardship or loss caused to them. The Municipal Commissioner was directed to hear the affected residents/proposed buyers and affected residents at least in the immediate neighbourhood.
18. The next direction is that if any unauthorized development is in violation of any dimensions pertaining to Floor Space Index (hereinafter referred to for short as "FSI") (unless where permitted by the Development control Regulation) as on the date of decision, the same will not be regularized.
19. If on the date of the decision, the unauthorized development is found to be in violation of any Rule, Regulation or law, which violation cannot be waived/relaxed, then the said development should not be regularized The Transferable Development Right (TDR) will not be permitted to reduce the amenities under the DC Regulations without adequately and fully compensating the residents/purchasers of the regular part of the structure for good reasons to be recorded in writing by the Commissioner. The final order allowing retention must reflect application of mind as regards "demonstrable hardship" for which the retention of that unauthorized development have been permitted. Similarly, the final order allowing retention must indicate that the relaxation/concessions granted will not affect the health, safety, fire safety, structural safety and public safety of the inhabitants of the building and the neighbourhood. Where a plan of structural modification involving a further burdening of a structure is involved, the structural safety will be certified by a Structural 26
Engineer of Mumbai Municipal Corporation who will grant such certificate after inspecting the premises. If there is any loss of a facility, requirement or amenity suffered by any person/persons having interest in the authorized part of any further unauthorized development which is sought to be retained/regularized, then such loss should be assessed at the market value of the concession granted and must form an ingredient computing premium. The losses then have to be computed by directions to add to the premium any amount which may be reasonably required for putting up additional infra-structure, if any, in or around the regularized structure.
20. Therefore the Respondent No.1 in order to comply with these directions, issued public notices in local newspapers. The public at large was informed that while considering the issue of regularization of unauthorized construction of 154 buildings, this Court issued the afore-mentioned directions. The list of the buildings was made available in the office of the respective Wards of Mumbai Municipal Corporation. Thereafter, the affected parties were requested to put forth their representations, addressed to the Municipal Commissioner, before a stipulated date. The list of 128 affected buildings was set out in the public notice. It is stated that there was a corrigendum issued extending the date of filing representation. It is stated by the Mumbai Municipal Corporation 27
that the present case is at Serial No.103 of the public notice. In addition, general notices were pasted on the buildings under reference as also on the adjoining buildings in the same lay out. However, no objections were received from the flat purchasers or occupants of the neighbouring buildings.
21. Thereafter, the Municipal Commissioner heard the parties from time to time. It was pointed out to him that in this case, the area of sub-plot `F' is 31753.66 sq.mtrs. The Commissioner was concerned with an application made by Shri B.S. Barot for regularization of Building No.7 situtate on plot bearing CTS Nos.178, 179, 262 to 263, 265 to 271, 273 to 282, 186 to 187, 138, 141, 143 to 146, 148, 156, 157, 159 to 161, 195 to 198, 172 (Part), 272 (Part), 203, 215 of Village Kandivali at Bundar Pakhadi Road, Kandivali (West). It is observed by the Municipal Commissioner that plans were approved and Commencement Certificate was granted upto 7th floor. However, work was carried out upto 24th floor. Therefore, the action was taken and Developer and the Architect applied for regularization. It was stated on behalf of the Developer that he had in good faith carried out the construction in anticipation of the TDR and balance potential after approval of the plans and with a view that the same could be regularized as per the past practice of the Corporation. He has further contended that he sold 28
the flats in anticipation that the plans would be approved. The purchasers of the flat have invested substantial part of their life savings to acquire all these flats and if the same are demolished, the flat purchasers would be put to tremendous loss, hardship and mental trauma which cannot be compensated in monetary terms. He argued that the additional construction will not come in the way of any public project and that no such project is held up because of the same. Therefore, if there is no regularization by charging penalty/premium and/or fine, the flat purchasers will be rendered homeless.
22. Several Officers of the Mumbai Municipal Corporation remained present at the hearing with record and details. They are referred to by the Municipal Commissioner. He also referred to the fact that the Architect proposed to regularize 24 storied building and five other buildings, in plot potential of other three buildings, in lieu of TDR. The Architect and the Constituted Attorney of the owner prayed that they would get the necessary clearance including No Objection Certificate from the ULC. At the hearing, these persons including the Advocates and representatives of flat purchasers and occupants were present. The Commissioner refers to several aspects of the development in the subsequent paragraphs. 29
23. In paragraph 16 of the order, the Municipal Commissioner observed thus :
"14] On 13th April 2007 all parties remained present with Officers. Developer requested not to insist on high rise committee's NOC as it will take some more time and agreed to give registered undertaking to demolish the floor on his own if NOC is denied, which could not be accepted and the developer was asked to come for regularization after reducing height of the building to 70 m. Hearing was adjourned to 27th April, 2007.
15] On 27th April 2007 all parties and officers remained present. Mr. Nilesh Vora, Mr. Arun Gada, both the developers , Mr. Kirit Gada, Mrs. Sunderben Vora the occupants also remained present. The developer stated that the demolition of 24th floor could not be taken up as police protection was not granted for want of written orders from Corporation. The Architect reiterated the requests for giving more time for producing NOCs and in the meantime to regularize the buildings.
16] In case of this building plans were approved for Ground + 4 floors of wing 'A' to 'D' and IOD was issued on 5th December, 1990. Later, plans were approved for wings 'A' to 'E' for stilt + 7 floors on 11th January 1992. Commencement Certificate up to top of stilts was granted on 15th September, 1992. Lastly plans were approved for Stilt + 7 floors of one wing. Commencement Certificate was not endorsed as per amended plans. During routine inspection, work was found completed up to 24th part floor. Hence Stop Work notice under section 354A of MMC Act, 1888 was issued on 2nd December, 1997 and action under section 53(1) of MR & TP Act 1966 was initiated on 24th October 2002. In response, Architect applied for regularization. The proposal requires relaxations in joint open spaces. The proposal 30
requires approval of High Rise Committee as height of the building exceeds 70m. There are elevations constructed which can not be regularized free of FSI but can be permitted by counting in FSI. Adequate TDR for the same is not yet purchased. The stair case area is required to be exempted from FSI by M.C. The registered structural Engineer has certified the safety of foundations and columns for Stilt + 24 upper floors and C.F.O. Has also issued No Objections for Stilt + 23 upper floors. In addition, Dy. City Engineer of B.M.C. Has certified the stability and checked the design & calculations for the foundations and columns for stilt + 24 upper floors."
24. Based upon the above reproduced findings that he passed the final order as under :
I have perused the file papers that were produced before me by the concerned officer of M.C.G.M. and have heard submission of the developers, Architect, occupants & Dy. Ch.E.[B.P.] W.S.
It is admitted fact that plans are not approved for 8th to 24th part floor. The party has already purchased some T.D.R. To regularize the unauthorized construction but the same is not deducted from DRCs. The documents are also not valid. The quantum of TDR purchased is also not adequate to regularize the work. As per the directives of ULC Authorities, it was necessary to obtain prior approval of Government for utilization of TDR, which is not obtained in spite of time granted. After considering the facts presented to me by the officers of MCGM, occupants and submission of the developer Shri Jayesh Shah, I pass the following orders.
1. Party shall demolish floors of the building above 7th floor within 60 days from the date of this order.
2. Compound walls in between the buildings shall be demolished within 30 days from the date of this order.
Failing to comply above, I direct EE (BP)R wards to pursue the action.
3. I approve the request to grant area covered by staircase, lift, lift lobby area free of F.S.I. by charging premium of Rs.15,54,800/- and that of lift machine room, staircase room, top most staircase, elevated water tank free of F.S.I. Without charging premium as per provisions of clause 35(2)(c) of D.C. Regulations, 1991 and as per policy in force.
4. Under the provisions of sections 53(3) read with section 44 of M.R. & T.P. Act 1966 and having been convinced that there will be no violation of F.S.I. in this case after demolition as above, I pass the orders for regularization of the work carried out beyond Commencement
Certificate from Stilt to 7th floor and that of elevation features in this case by recovering the penalty as per details in paragraph 5(iii) below.
5. In view of above, as per the paragraph 19(h) of Hon. High Court order, the three ingredients of the premium are worked out and I pass the following order.
i. There is no loss of facility as there is no condonation / concession.
ii. I pass the order that an amount of Rs. 3,26,000/- shall be paid to M.C.G.M. Towards infrastructure development.
iii. An amount of Rs.11,96,350/- which is an enhanced fine for carrying out work beyond approval.
The developer shall pay aforesaid amount stated at Sr.No. 3 and 5 within 30 days from receipt of this order failing which I direct E.E. (B.P.) R wards to pursue the action by following due process of law."
25. In the Petition, the Petitioner has naturally not disputed these facts but contended that the directions to demolish have been given because the necessary FSI/TDR has not been made available by Respondent Nos.5 and 6. A proposal was given for the purpose of making available the TDR. However, the Municipal Commissioner has observed that adequate TDR for the same is not yet purchased. The Petitioner argued that if adequate TDR would have been made available by Respondent Nos.5 and 6, then the misfortune of demolition of the building above 7th floor would not have arise at all.
26. The Petitioner states that by his Advocate's letter dated 20th April 2007 the particulars of Development Registration Certificate (DRC) numbers and the FSI which was available with Respondent No.6 have been forwarded to Respondent No.2. The Petitioner argued that atleast three DRCs being (i) SRA/637, (ii) SRA/379 and (iii) SRA/245 dated 22nd September 2006, 27th April 2004 and 12th February 2003 from the total credited FSI 5620.00 sq.mtrs, deducting the FSI which is already utilized, namely, 2390.00 33
sq.mtrs, still as of today, to the best of knowledge of the Petitioner 3230.00 sq.mtrs. FSI is still available with Respondent No.4. He states that Respondent No.6 has 22805 sq.mtrs. available in the form of DRCs with him. Thus, when this FSI was already available, how Respondent No.5 is not making the same available so that the required deficiency is met in this case. If this deficiency is met, then the entire building can be saved. Respondent No.5 could very well utilize this FSI to save the disputed floors.
27. Our attention is invited to a communication of the Municipal Corporation in response to the query under Right to Information Act. Therein, it is supposedly stated that FSI to a large extent is sold in the open market by Respondent No.6. This substantial FSI was available with Respondent Nos.5 and 6 and that could have been utilized for the purpose of regularizing the disputed floors. The attention of the Municipal Commissioner was invited to all these aspects but the same have not been adverted to by the Municipal Commissioner. Despite these communications being forwarded and the facts incorporated therein duly mentioned in the written representation dated 20th April 2007, Respondent Nos.1 and 2 did not take any steps and instead issued the impugned directions. The Petitioner states that he had filed another representation 34
objecting to the manner in which the hearing was conducted by Respondent No.2.
28. The grievance is that the Respondent No.2 failed to take into consideration the detailed representation of the Petitioner as referred in the Writ Petition. The Petitioner has submitted that there is a great hardship caused to him and to similarly situated flat purchasers because of the inaction of the Municipal Commissioner. The Corporation ought to have prevented Respondent Nos.5 and 6 from selling the FSI in open market and/or protecting that FSI so that it could have been utilized for the regularization of the subject project. It is also stated in the Petition that Respondent No.5 was black listed by the State Government in pursuance of the Government Resolution dated 9th March 2005 for non-compliance of various permissions obtained under the Urban Land (Ceiling and Regulation) Act, 1976. In such circumstances being aggrieved by the order, the instant Petition has been moved by the Petitioner-flat purchaser. It is his case that even the Structural Engineer had certified that the structure in this case is safe. The foundation and columns are meeting the safety requirements including that of the Fire Department. The petitioner therefore prays for a declaration that the order under challenge is illegal, mala fide and should be quashed and set aside and the Building No.7, Gaurav Gagan, Gaurav 35
Garden Complex, Kandivali (West) be held to be a regular, authorized construction not requiring any demolition, if compliances, as prayed, are made by Respondent Nos.5 and 6.
29. In the affidavit filed by the Municipal Corporation, with which we were not satisfied, the order of demolition has been justified. Further, it is pointed out that stop-work notice had already been issued for the construction at site. The Architect submitted documents proposing to amalgamate the adjoining plots to regularize the building. His proposal was for amalgamating the adjoining plots in lieu of additional FSI generated and after amalgamation of these plots for FSI benefit of the road and set back and proposed TDR. The Architect submitted documents for deducting TDR and therefore the lay out was amended to amalgamate the plots. However, the Corporation says that it was necessary to revalidate the documents submitted for utilization of TDR and to purchase additional TDR. It was also necessary to get clearance of the ULC authority for utilization of the TDR as per the directives received from the authority. Further, clearance from High Rise Committee for regularization in cases where the height of the building exceeds 70 meters was also not obtained by the Developer. Even the Petitioner did not produce the documents demonstrating clearance by the ULC authority for utilization of TDR. It was the 36
duty of the Developer to demolish the unauthorized structure within the open space of the building and further demolish the temple, compound walls unauthorizedly constructed for sub-dividing the plots. The Corporation gave opportunity to the Developer to produce NOC from High Rise Committee and NOC from ULC authorities. The specific complaint of the Corporation is that there are elevations constructed which could not be regularized free of FSI but can be permitted by counting in FSI. The computation of the Developer for deducting the TDR admeasuring 3547.05 sq.mtrs. is not adequate inasmuch as the TDR required for regularization of the unauthorized building is 5635.85 sq.mtrs. thereby it falls short by 2085.35 sq.mtrs. It is in these circumstances that the Corporation denies that the order is bad in law or violative of principles of natural justice leave alone mala fide. This is the affidavit filed on 16th June 2007.
30. In the affidavit filed by the Constituted Attorney of Respondent No.5 in reply, it is stated that against the order passed by the Municipal Commissioner, the remedy of the Petitioner is to file an appeal under Section 47 read with Section 56(2) of the MRTP Act. The Petitioner has not availed of this remedy. Further, the Respondent No.5 has filed the appeal challenging the order before the State Government and had applied for stay of the impugned 37
order. The proceedings, namely, the application for stay and the appeal are pending.
31. It is the case of the Respondent No.5 that by removal of one floor i.e. 24th floor of the building and besides the removal of elevation features illegally constructed by co-Developer (Respondent No.7) the imbalance of FSI of the entire building can be cured and the building is capable of being regularized The elevation features are constructed from 18th floor onwards and therefore the Petitioner's flat situated on 10th floor is not affected. Respondent No. 5 is contemplating removal and demolition of 24th floor besides the elevated illegal construction from 18th floor onwards. That is an aspect mentioned in the letter dated 22nd May 2005 addressed to M/s.Nova Nirman Nigam-Respondent No.7. Thus, it is accused by Respondent No.5 that the Petitioner has personal and private grievance against Respondent Nos.5 and 6, for which he is required to file a Suit. The Petition proceeds on the wrong premise that necessary details have not been supplied by Respondent Nos.5 and 6 to the parties. Instead, in paragraph 8 it is stated that the building is a part of a big lay out/project of approximately 15 buildings. Respondent No.5 owns or has acquired development rights in respect of large property. The lay out was sanctioned by Respondent No.3 on 3rd July 1995. The scheme was progressing in a phasewise 38
manner. During the course of the development, Respondent No.5 had available FSI of 1,29,000 sq.ft. from CTS numbers mentioned in paragraph 8(b) of the affidavit affirmed on 26th June 2007.
32. It is stated that in or around 2001, one Arun Damji Gada and Nilesh Vora approached Respondent No.5 with a request to grant them development rights in respect of the 1,29,000 sq.ft. of FSI. The negotiations were held and ultimately development rights were granted by a document dated 25th March 2001 executed between Respondent No.5 and the said Arun Damji Gada whose proprietary concern is M/s.Nova Nirman Nigam. A copy of this agreement is annexed as Exhibit `1' to the affidavit. In response to this agreement, M/s.Nova Nirman Nigam commenced construction of the building Gaurav Gagan and have proceeded to complete the same without waiting for any approvals and sanctions from MMC.
33. In paragraph 8(e) of the affidavit of Respondent No.5 affirmed on the above-mentioned date, this is what is stated :- "8. The true and correct facts are either suppressed and/or distorted by the Petitioner are as follows:-
(e) The said M/s. Nova Nirman Nigam inter alia committed following illegalities in the said building "Gaurav Gagan":-
(i) though plans of the building were approved only up to stilt + 7 upper floors, they executed work of the construction up to 24th floor.
(ii) Executed work of the construction above 7th floors without availability of FSI and without TDR having been provided for the same.
(iii) Executed work of the construction of the building up to 24th floors though AOP was only up to 20 floors."
It was, therefore, necessary to submit proposals for regularization which came to be submitted and reference is made to the several proposals and letters of Architect in that behalf. It is stated that Respondent Nos.5 and 6 were ready and willing to demolish the 24th floor so that the height of the building comes within the required limits. However, M/s.Nova Nirman Nigam were obstructing such demolition. Therefore, the agreement between them has been terminated vide letter dated 9th March 2007. Even after termination, M/s.Nova Nirman Nigam are not allowing demolition of 24th floor.
34. Respondent No.5, therefore, holds the Corporation and the Municipal Commissioner responsible for not allowing the plot potential to be utilized. If that had been allowed to be utilized, there 40
was no question of submission of any TDR. The observations of the Municipal Commissioner to the contrary are illegal. There is enough FSI for regularization. In fact, this building is regularized on the basis of plot potential and there was no question of submitting any TDR and in any event when the appeal is pending, these issues can be gone into by the appellate authority, namely, the State Government. For all these reasons, Respondent Nos.5 and 6 pray that the Petition be dismissed.
35. It is after this affidavit that we directed impleadment of Respondent No.7.
36. The Petitioner filed a rejoinder affidavit reiterating the contents of the Writ Petition and also pointing out that Respondent Nos.5 and 6 are accepting or having TDR/FSI and/or able to generate TDR/FSI through several properties, details of which are mentioned in paragraphs 5 and 6 of the affidavit affirmed on 11th June 2007.
37. In the affidavit in rejoinder to the reply filed by Respondent No.2, the Petitioner contended that the construction can be regularized and the modalities for the same have been suggested. At the same time it is urged that Respondent No.6 does not want to 41
purchase TDR or utilize its own TDR as the same is presently valued not less than Rs.2200/- per sq.ft. Thus, in aggregate the cost of regularization and purchase of TDR is higher than the price at which the flats have been sold. The present situation has arisen because Respondent No.6 did not purchase the TDR at the right time. However, the TDR documents are on file which ought to have been considered by the Municipal Commissioner. The Petitioner has placed details of this availability in this affidavit in rejoinder dated 26th June 2007. The Petitioner also rejoined to the affidavit of Respondent Nos.5 and 6 by pointing out that complete details are not being set out in the affidavits of Respondent Nos.5 and 6. There is suppression. Further, the Writ Petition raises several contentious issues including the power of the authorities and, therefore, there is no question of the same not being maintainable. The appellate remedy is not equally efficacious.
38. In the affidavit that we directed the Corporation to file on the point of the source of the power to regularize, the Municipal Commissioner has stated as under :
"3. I say that the exercise of power for regularization should ordinarily be in conformity with the Development Regulations and Building Bye-Laws and Planning Standard except in case of hardship where the Municipal Commissioner has
been empowered under Rule 64(b) to relax the rigour of the provisions of certain D.C. Regulations 42
in conformity with the observations and guidelines spelt out by the aforesaid judgment passed by Division Bench of this Hon'ble Court.
4. D.C. Regulation 34 provides that in certain circumstances, the development of potential of plot of land may be separated from itself and may be made available to owner of the land in the form of Transfer of Development Rights (T.D.R.). Those rights may be made available and be subject to regularization in Appendix VII-A of the D.C. Regulation. Under Appendix VII-A regulates grant of T.D.R. To Owners/Developers and provides conditions for grant of such rights.
5. Under clause 13 of Appendix-VII-B, it is provided that any T.D.R. Residential plot shall not be eligible for more than 100% additional F.S.I. in whichever combination T.D.R. received provided 20% of F.S.I. shall be kept mandatorily for use of T.D.R. generated as surplus from Slum Rehabilitation Scheme, though the source of T.D.R. could be from Road/Reservation, Slum improvements, Reconstructions of cess buildings or from Heritage Building."
39. The Municipal Commissioner has pointed out the scheme under the Act and the DC Rules for obtaining and utilizing the TDR. He states that in the present case even the original construction of stilt plus seven upper floors was regularized in accordance with the policy. That was a construction made in accordance with the sanctioned plan but without obtaining the Commencement Certificate. The Commissioner points out that whatever could be regularized under the permissible norms has been 43
done, but the excess construction of 8th to 24th floors could not have been regularized The Municipal Commissioner's affidavit, if read in isolation and more particularly going by contents of paragraph 12 seems to suggest, that even this construction of 8th to 24th floors will not put an extra load on the infra-structure such as sewage, water supply, etc. since the designed infrastructure provided in the locality is based on the permissible tenement density per hectare. However, upon a reading of the entire affidavit, it is clear that he is supporting his reasoning in the impugned order. He has also set out the details of the charge-sheet issued pursuant to the preliminary inquiry held by the Deputy Chief Engineer (Road) and has stated that 11 Officers have been indicted. They were working in the Building Proposal Department. A full fledged departmental inquiry was conducted by the Chief Engineer (Vigilance) against them and 4 Officers were found guilty and they were given various punishments against which their appeals are pending. In response to the order passed by this Court on 29th June 2007 in this Petition, Respondent Nos.5 and 6 have submitted a list of projects for which plans have been submitted to the Corporation. The list is submitted on 12th July 2007. The list shows 16 building proposals, out of which 13 have been completed and two are upto plinth level and one building is Gaurav Gagan which is subject matter of this Petition.
40. The Respondent No.5 filed a further affidavit setting out details regarding additional FSI consumed in the entire lay out. Respondent No.5 has submitted excess TDR of 184.62 sq. mtrs. in the entire lay out. The Writ Petition is nothing but a battle initiated by Arun Damji Gada and Nilesh Vora to settle personal scores. It is at the instance of the business rivals of Respondent No.5 that the Petitioner has been set up and that is how he has filed the Petition. The Respondent Nos.5 and 6 seem to suggest that the details in the affidavit of the Corporation are not accurate and all allegations made with regard to other projects are false and incorrect.
41. The Corporation has filed a further affidavit with regard to the details of the projects of Respondent Nos.5 and 6. That affidavit is filed on 1st October 2007. The Petitioner deals with all these affidavits. He points out as to how NOC from the High Rise Committee is not necessary. In the affidavit, the Petitioner acuses the Developer and the authorities of pre-planning the demolition, although the construction is capable of being regularized
42. Such affidavits continued to be filed until we issued final directions. The parties also filed compilation of documents. 45
43. There was a Chamber Summons by two persons seeking intervention. They stated that they are flat purchasers of 18th and 19th floors of the subject building. However, they did not obtain any orders in furtherance of this Chamber Summons.
44. Another Chamber Summons being Chamber Summons No.389 of 2008 was moved by one more intervenor Lalita Vinod Avlani. She states that she is a prospective purchaser of Flat No.402, 4th floor and she sought to intervene in the proceedings, but even her Chamber Summons does not seem to have been pursued further.
45. Notice of Motion No.444 of 2007 was moved by the Petitioner praying for a direction to Respondent Nos.1 to 3 to disclose the details with respect of certain lay out in the Village Kandivali. This Notice of Motion was filed on 29th August 2007. However, since we issued directions and called for detailed affidavit, this Notice of Motion was not pursued.
II) WRIT PETITION NO. 3123 OF 2006
46. Writ Petition No.3123 of 2006 is filed by M/s.Goolamally Hasanjee, a Partnership firm which owns a plot of land along with a building at Mandvi within the limits of "B" Ward of the Municipal Corporation of Greater Bombay. The building is 46
known as "Patel Building". It consists of ground plus three floors including mezzanine floor. The premises/building is tenanted.
47. The Petitioners in this Petition are challenging an order dated 8th September 2006 passed by the Municipal Commissioner directing them to pay regularization penalty at the rate of 1.5 times more than what is prescribed under the law. They are thus directed to pay Rs.46,99,335/- premium towards condoning deficiency in open space of Rs.4,46,700/- and costs incurred for demolition at Rs. 6,00,705/-. The Petitioners state that they had applied for regularization of mezzanine floor in accordance with the policy Circular dated 8th August 2005. The regularization was applied and sought for after demolition of 50% of the mezzanine floor area. The Petitioners have been directed by this order to pay the afore- mentioned sums within one month failing which the Corporation threatened to demolish the structure of ground plus mezzanine plus one to three upper floors. It is the case of the Petitioners that this order is totally illegal and violates the mandate of Article 14 of the Constitution of India as well.
48. The Petitioners' case is that this building was constructed prior to 1940. It was a cessed building classified as Category "A" under the Maharashtra Housing and Area Development 47
Act, 1976. The building was in dilapidated condition and required an urgent repairs. A notice under Section 354 of the MMC Act was issued on 21st April 1992 directing the Petitioners to undertake repairs pursuant to which an application seeking repair permission was sought and granted. However, there was an unauthorized construction of building of the higher floors i.e. 4, 5 and 6 on the plot of land. In view of the dispute, the Corporation issued notice under Section 351 of the MMC Act and thereupon carried out demolition. Since the entire building was demolished, it was reconstructed and not repaired. The case of the Corporation is that the entire structure is illegal and unlawful and liable to be demolished. Therefore, the notice under Section 351 was issued. There were Suits filed in the City Civil Court and from the interim orders therein matters were carried to this Court and this Court directed that if any application for regularization is made, the same should be dealt with in accordance with law. Therefore, the demolition was stayed. Thereafter, the proposal for regularization of entire building was submitted but it appears that it was not acceptable and hence it was rejected on the ground that there is no balance FSI in respect of the building. Against the rejection orders, matters were carried in appeal to the State Government, but during the pendency of the appeal, the three upper floors were demolished in May 2001. Therefore, the structure remained ground plus three 48
floors and the matter proceeded on the basis that the remaining construction could be regularized by levying penalty. However, even that stand of the Petitioners was not acceptable to the Corporation and once again demolition of the third floor was directed but which action came to be challenged by way of a Writ Petition in this Court which Writ Petition was disposed of by a final order remanding the matter to the Municipal Commissioner. The Municipal Commissioner thereafter passed the impugned order.
49. This order has been challenged on the ground that the Circular does not permit charge of such exhorbitant penalty. The double the rate of penalty which is provided in the Circular dated 2 nd February 2002 is not applicable to the Petitioners' case. The regularization proposal was forwarded much prior to this date. Thereafter, the penalty prevailing as on 24th January 2001 ought to have been levied. There is no basis for levying penalty as per the Circular of 2002. Even otherwise and in the garb of any policy, it is not open to the Corporation to levy penalty as there is a proposal to protect mezzanine floor. Thus, the challenge is to the levy of the penalty for regularization.
50. This matter was tagged together with Writ Petition No. 1077 of 2007 as it involved the question of power to regularize the 49
unauthorized construction and/or retention of the same. In the affidavit in reply filed in this Petition, the Corporation has justified its stand and in paragraphs 11 and 12, it states thus :- "11. I say that with regard to the levy of penalty for regularization, the Municipal Commissioner has decided the penalty amount to be charged at 1.5 times the rate of regularization at that time and not at double the rate of regularization. I say that the Municipal Commissioner has used his discretionary power under D.C.R. 64 of D.C. Regulations and have decided the said penalty for regularization of unauthorized work. I say that the Municipal Commissioner has rightly levied the penalty of Rs.46,99,335/- at 1.5 times for regularization of unauthorized work of ground plus 3 floors. I say that the petitioner has agreed to pay Rs.4,46,700/- for condonation of deficiency of open space. I say that as unauthorized floors of 4th to 6th floors are demolished by the Corporation and which were constructed unauthorizedly, the Corporation has empowered to recover the cost of demolition under the provisions of M.M.C. Act and therefore, Rs.6,06,705/- are rightly charged as demolition charges.
12. I say that it has been seen from the records that mezzanine floor was assessed in the year 1994-95, 1995-96, 1996-97. I say that U.D. Department in Govt. of Maharashtra has issued notification under Section 37(2) of the M.R.T.P. Act, 1966 dtd. 31.5.2005 under No.
4397/1287/CR-89/97/U.D.-11 modifying the text
of the D.C. Regulations No. 38 (b)(1) and accordingly Corporation has issued policy circular under No. CHE/Gen/283/111/DPC/Gen dtd.
8.8.2005 for grant of permission for regularization of loft/mezzanine floor constructed prior to 15.8.1997. I say that in the instant case as the existence of mezzanine floor prior to 15.8.1997 is established, the said mezzanine floor can be considered for regularization as per the policy of 50
these respondents by removing/demolishing 50%
of the mezzanine floor are as per requirement of Reg.38(b)(1) of D.C.R. 1991. I say that the petitioner can get the mezzanine floor regularized by making application to the Competent Authority in required manner, through Licensed Architect, as per provisions, forms and conditions of guidelines, circular dtd. 8.8.2005, issued by the M.C.G.M. I say that Eng (B.P.) City has rightly issued demand letter dt. 26.10.06."
51. The Petitioners filed a rejoinder to deal with these statements by observing that the premises were in existence prior to 1962 and, therefore, were tolerable. They could not have been demolished. The approval to the plan for repairs and renovation for ground plus three upper floors came to be duly sanctioned. This ground plus three upper floors were already in existence and the FSI was available. There was no illegality in this construction. The three additional floors have already been demolished. Therefore, the only question was left of reasonable penalty and fine and not applying the Circulars with their rigour and strictness which are in any event inapplicable. Assuming that they are applicable, they are wholly arbitrary in so far as they permit levy of such penalty and, therefore, required to be struck down.
III) WRIT PETITION NO. 1124 OF 2007
52. This Writ Petition is filed by the Petitioner challenging the inaction of the Corporation in not demolishing the unauthorized 51
and illegal structure of Dhanesha Chawl despite communicating to the Petitioner that no permission is granted for upper floors of Room Nos.5, 6 and 7 of this Chawl. The Petitioner, therefore, prays for a Writ of Mandamus directing the Respondent No.1 to demolish the unauthorized and illegal construction (upper floors) and extension of 100 sq.ft. carried out by the deceased husband of Respondent No.2 and Respondent No.3 in Dhanesha Chawl, 144, Daftary Road, Malad (E), Mumbai 400 097.
53. The Corporation has filed an affidavit stating that the unauthorized construction has been demolished on 26th June 2006 and the Corporation produced photographs evidencing the same.
54. In the light of this affidavit and the Petitioner not coming forward to further press the Petition, this Writ Petition is dismissed as infructuous.
IV. WRIT PETITION NO. 1130 OF 2007
55. This Writ Petition is filed by the Petitioner praying for a Mandamus to demolish entire illegal and unauthorized construction (360 huts/shops) carried on by Respondent Nos.3 and 4 in this Petition on Survey No. 239 (Part), CTS No. 70 situated at Kurar 52
Village, Malad (East), Mumbai 400097. On this Petition, notice was directed to be issued on 27th July 2007.
56. In response to the aforesaid notice, the Corporation has filed an affidavit stating that the Corporation has taken action against the unauthorized structures under Section 351 of the MMC Act. The demolition action in respect of unauthorized structures has been referred to in paragraph 7 of the affidavit. This being a private property, according to the Respondents, he should have taken steps to protect the property after demolition.
57. The prayer in the Writ Petition is that the unauthorized construction be removed. The private Respondent has filed an affidavit in reply pointing out that the Petition is an abuse of process of law inasmuch as the Petitioner has no direct or remote interest. The Petitioner and his predecessor are indulging in acts of unauthorized encroachment and illegal structures posing themselves to be the owners of the land. They had filed Suit but the land is claimed by the Adivasis as well as by the Forest Department/State Government. The interim application in the Suit has been rejected. There are directions to clear all encroachments in a Public Interest Litigation. It is stated that the structures unauthorizedly and illegally 53
constructed by the Petitioner and his family members came to be demolished.
58. The Petitioner's Advocate has not pursued the matter after filing of this affidavit in reply. There are no rejoinder affidavits filed by the Petitioner dealing with the statements made by the Corporation on affidavit so also dealing with the affidavit of the private Respondent. We are of the opinion that this Writ Petition raises a completely private dispute and has no connection with the issue of regularization/retention of unauthorized structures. We dispose of this Writ Petition by observing that the Petitioner is free to adopt such other proceedings as are permissible in law for redressal of the grievances relating to his right in the said immovable property. V. WRIT PETITION NO. 1190 OF 2007
59. This Writ Petition is filed praying for action against the unauthorized structure made by Respondent No.1 in the property involved in this Petition.
60. The Petitioner's Advocate was specifically called upon by this Court to satisfy as to how the Petition would be maintainable in the light of the pendency of a Civil Suit as disclosed by the Petitioner 54
himself in paragraph 13 of the Petition. In any event, if the Petitioner himself is stating that there is no protection against the unauthorized construction, then all that can be directed is that the Respondent No.2 shall treat the Petition as a representation of the Petitioner and deal with it in accordance with law. If Respondent No.2 has not taken any action against the alleged unauthorized construction, then it should take the same as expeditiously as possible. The Writ Petition is disposed of accordingly. VI. WRIT PETITION (LODGING) NO.1280 OF 2007
61. By this Writ Petition, the Petitioners pray that the notice dated 12th June 2007 be quashed and set aside.
62. It is the case of the Petitioners that an agreement for sale was executed between Respondent No.4 and Petitioner Nos.2 to 10 which is duly registered in respect of the flats of the Petitioners situate on 10th to 14th floors of Tulsi Tower, Tulsi Tower Co-operative Housing Society Ltd., CTS No.5262A, O.P. 137, F.P. 188, 51 st Road, TPS III, Borivali (West), Mumbai 400092 and the Respondent No.4 has put the flat purchasers in possession of the flats. The Petitioner No.1 is a registered Co-operative Society of such flat purchasers. The brochure was supplied by Respondent No.4 showing location and basic amenities to be provided. However, there were certain 55
irregularities in the construction and the Corporation brought that to the notice of the Developer who through an Architect forwarded a proposal for regularization of "A" wing from 10th to 14th floors and of "B" wing first part floor. The Corporation was convinced that there was no violation of FSI but while regularizing the construction imposed penalty upon the Developers. It issued notice for demolition action as the builder/developer failed to comply with the order of regularization on payment of premium/fine therein.
63. The Corporation has filed an affidavit and has stated that the Architect or the Developer has represented to the Municipal Commissioner for grant of relaxation in time period for payment. The Municipal Commissioner has directed the exact payment with interest to be paid without delay. The Developer has made application along with Demand Draft with interest on 11th July 2007. It is accepted but not deposited in the account of the Municipal Corporation of Greater Bombay. It is stated in the affidavit that the amount will be deposited till the utilization of of TDR is received by the Executive Engineer, Building Proposal (W.S.) "R" office. It is kept in custody. They have justified the issuance of the notice in respect of the construction.
64. The Petitioners have filed a rejoinder and have highlighted the grievances and the consequences of the Developer not complying with the conditions imposed on him.
65. It appears that one M/s Jain & Jain, Applicants, filed a Chamber Summons being Chamber Summons No. 314 of 2007 praying that they should be made party Respondents to the Writ Petition as they are the original owners of the property. They have referred to some Suit filed against the Developer-Respondent No.4 to the Writ Petition, being Suit No. 1781 of 1993 and have stated that the Suit is pending for hearing and final disposal. However, there is an interim relief therein. They state that they have deposited a sum of Rs.49,05,000/- in this Court as a condition for the injunction which amount is still lying in this Court. The amount is invested. It stated that Respondent No.4 has committed a fraud on the flat purchasers and, therefore, they should be impleaded as party Respondents.
VII. WRIT PETITION NO. 1428 OF 2007
66. In this Writ Petition, the Petitioners claim to be Doctors by profession. They are purchasers of flats in a building called "Divya Stuti". They alleged that the building is constructed by 57
Respondent Nos.10 to 11. However, the authorities Respondent Nos. 1 to 6 had issued certain directions, which permission having not been complied with, Occupancy Certificate is not granted to this building. Consequently, the Petitioners who are desirous of establishing medical clinic are unable to do so. They have stated that they have purchased flat Nos.1 and 2 on the ground floor of "B" Wing of Divya Stuti building by two registered documents dated 23 rd August 2002. These agreements were entered into by and between the Petitioners and Respondent Nos.10 and 11. The Petitioners purchased the flats for the purposes of starting Nursing Home. Therefore they claimed a Writ of Mandamus directing Respondent Nos.1 to 6 to take stringent action against Respondent Nos.10 and 11 on account of their failure to comply with the directions issued by the ULC authorities. At the same time they prayed that these Respondent Nos.1 to 6 should not take any action against the flat purchasers. They also should not take any action which will adversely affect the flat purchasers.
67. It is stated that the Developers have failed to comply primarily with the condition imposed of surrendering certain percentage of tenements to the State Government for transfer thereof in favour of Government nominees. Their failure to surrender these tenements, although undertaken has resulted in the building not 58
getting the necessary Occupation Certificate. Although, the affidavits filed by parties indicate that the condition is now altered and instead of surrendering the flats, the State Government has directed the Respondent Nos.10 and 11 to pay compensation/monies in lieu thereof. The amounts are paid only after the filing of this Writ Petition. However, there are other compliances which have to be made and unless the compliances are done, the Occupation Certificate will not be granted. We will advert to the further details when we deal with the contentions of parties in this Writ Petition. VIII. WRIT PETITION (LODGING) NO.1467 OF 2007
68. This Writ Petition is by a Petitioner who seeks a direction to Respondent No.1 to demolish illegal and unauthorized 6th and 7th floors constructed on property involved in the Petition. When the matter was placed before this Court on 2nd August 2007, Respondent No.2 made a statement that they are not planning to raise any construction in the basement of the building as of today.
69. The Petitioner filed an additional affidavit on 9th August 2007 and pointed out certain more details.
70. Respondent No.2 has filed an affidavit and stated that the nature of construction carried out by the Respondent is of approvable nature and can be permitted to be regularized with concession. The Respondents have purchased the requisite TDR for loading on the building for regularization of the structure. The proposals for regularization forwarded in August 2007 are pending and it is the Competent Authority which will decide it. Therefore, during the pendency of these proposals, no demolition can be carried out.
71. The Petitioner in this Petition claims to be the owner of Flat No.201, 2nd Floor of the building more particularly described in paragraph 1 of the Writ Petition which is stated to be constructed by Respondent No.2. Respondent Nos.4 to 8 are the occupants of flats on 6th and 7th floors, which floors have been illegally and unauthorizedly constructed in connivance of the authorities.
72. The Petitioner has pointed out that a Suit was filed by the Respondent No.2. in respect of these very floors in the City Civil Court at Bombay being City Civil Court Stamp No.45 of 2004. The Suit was filed by the Respondent No.2 against the Municipal Corporation and others. There was an affidavit filed by the Bombay Municipal Corporation, based upon which the City Civil Court 60
refused ad-interim reliefs to the Respondent No.2. The Petitioner has referred to several queries which were made under the Right to Information Act by the residents. He has also referred to one of the letters wherein police assistance was sought for carrying out the demolition. In these circumstances, this is a clear case of an unauthorized and wholly illegal construction. In these circumstances, he prays that action in furtherance of the notices under Section 53(1) of the MRTP Act be taken.
73. As has been pointed out above, the Corporation has not filed any affidavit in this Writ Petition.
IX. PUBLIC INTEREST LITIGATION NO.100 OF 2008
74. Another matter which is listed in this group is Public Interest Litigation No. 100 of 2008. The prayers in this Petition and more particularly prayers (a) and (b) read as under :- "(a) That this Hon'ble Court be pleased to issue of Writ of Mandamus or Writ in the nature
of Mandamus or any other appropriate Writ, order or direction under Article 226
of the Constitution of India that this Hon'ble Court may deem fit and proper to
direct Respondent No.8 to hand over the said plot bearing CTS No.15-F, 15-I and 15-
G or the Respondent No.3 be directed to acquire if the Respondent No.8 fail to handover CTS No.15-F (which is reserved
for Municipal Primary School), CTS No.15-I
(reserved for Play Ground) and CTS No.15-
G (reserved from Recreation Ground) in the given layout to Respondent No. within
such time as this Hon'ble Court deemed fit
to pass and the Respondent No.1 be further
directed to construct a Municipal Primary School on the said plot No.15 F for the benefit of the students in the area;
(b) That this Hon'ble Court be pleased to issue of Writ of Mandamus or Writ in the nature
of Mandamus or any other appropriate Writ, order or direction under Article 226
of the Constitution of India that this Hon'ble Court may deem fit and proper to
direct Respondent No.1 to 7 to initiate and
complete acquisition procedure to acquire the said plot bearing (i) CTS No.15-F (Municipal Primary School) as per MCGM
letters dated 04.11.2006 & 14.12.2006, (ii)
CTS No. 15-I (Play Ground) and (iii) CTS
No.15-G (Recreation Ground) in the given
layout within such time as this Hon'ble Court deemed fit to pass;"
75. On perusal of the Petition, both sides agree that this Petition being a Public Interest Litigation can be dealt with separately as the issue involved is not common to the other matters in this group. It is, therefore, directed that this Public Interest Litigation be placed before the appropriate Bench. X. WRIT PETITION NO.1572 OF 2009
76. The prayer in this Writ Petition is to direct Respondent No.1 State to forthwith register an Agreement for Sale of a flat. 62
77. It is stated that Respondent No.3 in this Petition constructed a building known as "Maharaja Retreat". The construction is stated to be in accordance with the plans approved by the Corporation. The Respondent No.3 sold a flat in question to Respondent No.2 under the registered Agreement for Sale dated 26th June 2007. The Petitioners in turn have purchased this flat from Respondent No.2. However, the document has not been registered. It is stated that the document is not registered on account of a communication dated 28th November 2008. In pursuance of that communication, the Sub-Registrar, Goregaon, Mumbai has informed the Petitioners in this Petition that on account of the direction of this Court to maintain status quo passed in Writ Petition No.1428 of 2007, the Additional Collector and Competent Authority, ULC by letter dated 19th July 2008 informed the Sub-Registrar that CTS No. 620, Village Malad (Goregaon) is covered by the order of the status quo and, therefore the Sub-Registrar cannot register any document in respect of this property until further orders of this Court. It is in such circumstances that the Writ Petition was directed to be listed along with Writ Petition No.1428 of 2007.
XI. WRIT PETITION NO. 1379 OF 2008 (APPELLATE SIDE)
78. This Writ Petition filed on the Appellate Side of this Court prays for a Writ of Mandamus or any other writ, order or 63
direction directing Respondent Nos.1 to 6 to blacklist the Respondent No.7 and his group concerns for all purposes for construction or sell or utilize of TDR, FSI.
79. This prayer is sought on the basis that Petitioner No.1 is a flat purchaser of building No.7 and Petitioner No.2 is purchase of a flat in building No.7A constructed in layout belonging to the Respondent No.7. It is stated that Respondent No.1 is the State having the control over Respondent Nos.1 to 7. It is stated that Respondent No.2 is the unit of the MHADA and is the authority functioning under the MHADA Act, 1976. Respondent No.4 is the Additional Collector and Competent Authority functioning under the Urban Land Ceiling Act, 1976. Respondent Nos.3 and 6 are the Municipal Corporations of Mira Bhayander and Greater Mumbai respectively whereas Respondent No.4 is the Slum Rehabilitation Authority.
80. The Respondent No.7 is a Developer and Builder and has carried out construction within the Municipal limits of Mira Bhayander Municipal Corporation. It is stated that the Petitioner had recently been informed that Respondent Nos.1 and 2 have received proposals in respect of several lands for developing them in joint venture with private Developers. Further, he has learnt that 64
Respondent Nos.3 and 4 decided to allot prime Government land bearing Survey No. 150(Pt), 151(Pt) and 226 to 230, Mira Road. This land is allotted at a throw away price to Respondent No.7. It is stated that the track record of Respondent No.7 is not good and he has been accused of carrying out several unauthorized and illegal constructions. It is then alleged that the letters have been addressed complaining about these acts of the Respondent No.7 but no response has been given by the authorities. The attention of the authorities was invited to the pending proceedings in this Court including Writ Petition No.1077 of 2007 and Writ Petition No.1428 of 2007. It is urged that these orders deserve to be extended to the entire State and more particularly to the prejudice of Respondent no.
7. It is stated that the Respondent No.3 communicated to the Petitioners that Occupation Certificate of several buildings of Respondent No.7 is still pending.
81. In paragraph 11(i) it is alleged as under :- "11. The Petitioners state that following information reveals track record and other details of the Respondent No. 7 that:
i. The Respondent No. 7 has intentionally neglected and failed to reserve, handover or allot the flats to the Government as per ULC conditions in MAJORITY of the buildings in Mumbai & Mira
Road within stipulated period. In majority of the cases, the Respondent No. 7 has sold out flats in buildings which were originally required to be handed over to the Government and indirectly compelled the Government to accept money in lieu of flats or compelled to accepts flats in his other buildings at different location and at comparatively under developed area. The Government could not recover the Government dues even after issuance of several reminders and notices and could recover some dues only after initiating criminal proceedings\compulsory revenue recovery or upon filing of Writ Petitions by affected parties. At the instance of the Chief Minister, the name of the Respondent No. 7 was BLACKLISTED by circulars the copy of which is annexed as internal annexure at last in the EXH NO.4 hereto. The name of the Respondent No. 7 appears at Sr.No.3 & 22 and name of the architect appears at Sr. No.1, 22, 24, 33, 41, 42, 58 as well as at Sr.No.5 of another list."
82. Thus, this Petition is filed purportedly as a Public Interest Litigation inviting the attention of this Court to several illegalities in the construction projects and more particularly those undertaken by Respondent No.7. It is stated that the Respondent No.7 has been protected and shielded by the authorities. It is necessary that appropriate action including blacklisting the Respondent No.7 needs to be initiated.
83. What is highlighted before us is a project of the Respondent No.7 (Type E and F buildings) on the land bearing Survey No.437/1, 2, 3, 5 to 11, 438/1, 2, 3, 6 and 439/1, 6, 8, 440/1, 3 to 8 and 11 to 13 at Mauje Navghar within the limits of the Mira Bhayander Municipal Corporation.
84. It is highlighted that the buildings type A, B, C, D have been constructed on this land. For that purpose, plans have been revised and sanctioned on 7th August 2006. For building types A, B, C, D, Row Houses, A-1, the revised sanctioned plans are dated 2 nd December 2006. Thereafter, on 19th May 2007 there are further revised development permissions for building type A, B, C, D and lastly, on 30th November 2007, for building type E, F, Q, K, Row Houses, J and site services. It is stated that as far as type Q, K, Row Houses and J is concerned, construction has not been done and the land to that extent is vacant. However, the Architect has by a letter dated 26th December 2007 applied for FSI to the extent of the land affected by CRZ-III and FSI for the portion not so affected. Thus, construction and development permission was sought in these terms. On 27th December 2007, this proposal/application of the Architect was forwarded by the Municipal Corporation to the Urban Development Department of the Government of Maharashtra. The Urban Development Department has by a letter dated 8th May 2008 67
communicated that as far as the land which is not affected by CRZ- III, development/construction permission can be granted. Thereafter, on 26th May 2008 the Architect once again forwarded an application for permission to utilize and exploit the FSI of the non- CRZ affected portion of the land. However, the Developer has contravened development permissions granted on 30th November 2007 and instead of constructing building type E and F to the extent of stilt plus one floor has constructed building of stilt plus 13 (part) floors. This construction is without any permission.
85. It is stated that now the Developer has forwarded a proposal for regularization of this construction. Prior to that the Municipal Corporation had issued stop work notice dated 4th March 2009 and a notice under Section 53 of the MRTP Act.
86. These aspects were highlighted before us. When these aspects were highlighted and it was alleged that despite the Court notices being issued on 17th October 2008 and the Court clarifying that further construction and sale permission shall be at the risk and consequences and responsibility of Respondent No.7 and that he would not be permitted to raise any pleas of equity, the Corporation is considering his proposal for regularization favourably. We had passed certain interim orders but on noticing the afore-mentioned 68
facts and further finding that during the pendency of the Petition the Corporation passed an order of regularization on 17th March 2009 in respect of building (stilt plus seven floors) in Wing E and (stilt plus 13 floors (part)) in Wing F constructed on the subject plot of land, we directed that the order of regularization should not be given effect to by the authorities. The Municipal Commissioner and Assistant Director of Town Planning of Respondent No.3 Corporation were directed to remain present in Court with records. They were directed to file affidavits giving details of the regularization and the matter stood adjourned. In response to all this we noticed that affidavits were filed on record. As far as the first affidavit is concerned, that came to be filed in the year 2008 by the Additional Collector and Competent Authority. In that affidavit, what has been pointed out to us by the authorities is as under :- "25. With reference to sub para 12(xii) of the Writ Petition, I state that by letter dated 12.5.2003, the Respondent No. 4 has informed the Collector, Thane about the conversion of component A to B for Scheme Nos.SR 757, SR 62, SR 752, SR 748. I state that the said conversion amount was calculated alongwith interest prior to the letter dated 12.5.2003. Accordingly, on 8.5.2001, the Respondent No. 4 had issued a letter to the scheme holders of the abovementioned Schemes and directed to deposit the conversion amount. Accordingly, the Tahsildar, Thane had issued notices to the Respondent No. 7 to pay the said conversion amount, but the Respondent No. 7 has not paid the said amount. The Respondent 69
No. 7 had filed an appeal before the Divisional Commissioner, Konkan Division, Mumbai and challenged the said Notices. I state that by Order dated 27.1.2004, the Additional Commissioner had cancelled the said notices issued by the Tahsildar, Thane and directed the Respondent No. 4 to decide 8(4) Order as per the return filed by the Appellant under Section 6(1) and decide the surplus land."
It is pertinent to note that this authority has enlisted several schemes of Respondent No.7 and the undertakings therein to handover the flats/tenements reserved for Government nominees.
87. The Corporation has filed the affidavit of the Municipal Commissioner who stated that the Respondent No.3 approved the plans and issued the revised Commencement Certificate on 30th November 2007 for construction of building type E and F consisting of stilt plus one floor on the land more particularly referred to above and which is within the limits of Mira Bhayander Municipal Corporation. It referred to further permissions but did not give the other details. This affidavit was filed prior to our order of March 2009.
88. There has been a rejoinder affidavit filed but it is not necessary to advert to the same inasmuch as on 19th March 2009 the Additional Collector and Competent Authority, Thane Agglomeration 70
(Respondent No.4) has pointed out that from the 16 schemes which are being developed by Respondent No.7 in all 196 tenements admeasuring 7495.69 sq.mtrs. are required to be surrendered to Government as per the condition mentioned in the scheme order and corrigendum orders issued from time to time. This condition has been partly complied with by Respondent No.7 by surrendering 87 tenements admeasuring built-up area about 3985.72 sq.mtrs. However, in respect of eleven schemes out of sixteen schemes, the tenements were not surrendered even after extensions were given by the authorities. The details of each scheme, the exemption orders and the terms and conditions are set out in this affidavit and it is stated that now the Respondent No.4 has calculated penalty in each scheme and the approximated penalty will be Rs.3,99,15,468/-.
89. The Respondent No.3 Corporation filed its affidavit through the Municipal Commissioner and has admitted the factual position noticed by us including issuance of stop-work notice, etc. However, it justified the action of accepting the proposal for regularization by pointing out that the same was considered and recommended as acceptable in principle by Assistant Director of Town Planning of Respondent No.3. The proposal was accepted on condition of compliance of Development Control Rules, submission of NOC from Fire Fighting Department and Environment Department 71
of the Government and Respondent No.7 was accordingly intimated. However, the Municipal Commissioner states that the letter dated 17th March 2009 does not amount to final building permission as contemplated by Section 45 of the MRTP Act and Section 253 of the BPMC Act. Respondent No.7 is required to comply with conditions mentioned in the communication and only thereafter the proposal can be processed further. The Municipal Commissioner stated that when the matter was before the Court and when the Court observed that permission under Section 53(5) ought not to have been granted during the pendency of the Writ Petition that the Corporation has issued a letter dated 21st March 2009 `staying' its earlier communication/letter dated 17th March 2009 and all further action will be subject to orders passed in this Writ Petition. He stated that the approval was granted for the proposal for regularization prior to the Respondent No.3 assuming charge.
90. The Assistant Director of Town Planning of Respondent No.3 in his affidavit stated that the proposal was duly scrutinized as per the scrutiny proforma. The relevant details including permissible FSI etc have been sought and thereafter the Assistant Director of Town Planning (Incharge) of Respondent No.3 recommended further action. It is stated that the Surveyor, Junior Engineer and Assistant Town Planner jointly visited the site on 3rd March 2009. The site 72
inspection report was forwarded. The construction of building "E" has come upto the stilt plus eleven floors and construction of "F" building has come upto stilt plus thirteen floors. It was decided to issue the stop work notice. It is stated that the proposal was scrutinized in accordance with the prescribed procedure and necessary inspection was carried out. The acceptance of the proposal of regularization is in principle and on condition of compliance with DC Rules, submission of NOC from Fire Fighting Department and Environment Department, etc. Thus, all further action has been stayed.
91. The Petitioners have filed further affidavits and have alleged that Respondent No.7 is putting the approvals in different names so as to circumvent the orders which may be passed by the Court and is adopting the same tactics in the case of Bombay projects. Therefore, this Court should not countenance the request for favourable consideration of the proposals for regularization.
92. As far as the compliance with Urban Land Ceiling Act and exemption orders thereunder, what has been pointed out by the Petitioners in his further affidavit is that the same have not been complied with. It is stated that properties where the entire project is situated are sub-divided by four D.P. Roads. The balance area of 73
base land where "Gaurav Woods" is situated, after sub-division, is about 2926 sq. mtrs. only. Even if FSI of CRZ area is allowed to be utilized for Gaurav Woods, due to sub-division, the maximum FSI upto 1.8 FSI of 5267 sq. mtrs. can only be permitted whereas the area of Gaurav Woods including buildings to be regularized, is 24340 sq. mtrs. Thus, the CRZ FSI cannot be utilized in the entire lay out. It can be utilized only on portion of land where Gaurav Woods is situated but which again is restricted to 1.80. However, the regularization proposal is such that base land of Gaurav Woods is not big enough to consume entire 0.8 potential of the CRZ FSI due to sub-division. In such circumstances, what is alleged is total non- application of mind on the part of the Mira Bhayander Municipal Corporation.
XII. WRIT PETITION NO. 1364 OF 2009
93. This Writ Petition is filed by the Developer who is Respondent No.7 in Appellate Side Writ Petition No.1379 of 2008. The Developers/Petitioners in this Petition have challenged the order dated 21st March 2009 (Annexure "H") to this Writ Petition whereunder the decision earlier taken by the Mira Bhayander Municipal Corporation of regularizing the construction has been stayed. There, identical stand has been taken by parties and they rely primarily upon their affidavits filed in Writ Petition No.1379 of 2008. 74
94. In this background, the principal question for our consideration is whether unauthorized and illegal construction can be regularized and to what extent, so also what is the source of the power to do so. Before we advert to the rival contentions, it would be necessary to refer to relevant statutory provisions.
95. Chapter IV of the Maharashtra Regional and Town Planning Act, 1966 is titled thus :
"CONTROL OF DEVELOPMENT AND USE OF
LAND INCLUDED IN DEVELOPMENT PLANS".
In this Chapter, Section 43 provides for restriction on development of land. The same states that after the date on which declaration of intent of preparation of development plan for any area is published in the Official Gazette or after the date on which the notification specifying any undeveloped area as a notified area or any area designated for a new town is published in the Official Gazette, no person shall institute or change the use of any land or carry out any development of land without the permission in writing of the Planning Authority. The proviso need not be adverted to because that principally permits maintenance, improvement or other alteration of any building or carrying out of works by any authority 75
in exercise of its powers or carrying out of works by the Central or the State Government or any local authority but once again restricted to the proviso.
96. Section 44 of the MRTP Act reads thus : "44. Application for permission for
development.-(1) Except as otherwise provided by rules made in this behalf, any person not being Central or State Government or local authority intending to carry out any development on any land shall make in application writing to the Planning Authority for permission in such form and containing such particulars and accompanied by such documents, as may be prescribed.:
Provided that, save as otherwise provided in
any law, or any rules, regulations or bye-laws made under any law, for the time being in force, no such permission shall be necessary for demolition of any existing structure, erection or building or part thereof, in compliance of a statutory notice from a Planning Authority or a Housing and Area Development Board, the Bombay Repairs and Reconstruction Board or the Bombay Slum Improvement Board established under the Maharashtra Housing and Area Development Act, 1976.
(2) Without prejudice to the provisions of
sub-section (1) or any other provisions of this Act, any person intending to execute a Special Township Project on any land, may make an application to the State Government, and on receipt of such application the State Government may, after making such inquiry as it may deem fit in that behalf, grant such permission and declare such project to be a Special Township Project by 76
notification in the Official Gazette or, reject the application."
97. Section 45 provides for grant or refusal of permission. The application under Section 44 has to culminate into exercise of discretion by the Planning Authority eitherway. The discretion may be exercised subject to the provisions of the MRTP Act by order in writing. That order may grant the permission sought under Section 44 unconditionally, conditionally or it may contain the refusal of the permission. Any permission granted with or without conditions shall be contained in the Commencement Certificate in the prescribed form. Every order granting permission subject to conditions or refusing the permission shall state the grounds for imposing such conditions. Section 45 reads thus :
"45. Grant or refusal of permission.- (1) On receipt of an application under section 44 the Planning Authority may, subject to the provisions of this Act, by order in writing-
(i) grant the permission, unconditionally;
(ii) grant the permission, subject to such general or special conditions as it may impose with the previous approval of the State Government; or
(iii) refuse the permission.
(2) Any permission granted under sub-section (1) with or without conditions shall be contained in a commencement certificate in the prescribed form.
(3) Every order granting permission subject to conditions, or refusing permission shall state the grounds for imposing such conditions or for such refusal.
(4) Every order under sub-section (1) shall be communicated to the applicant in the manner prescribed by regulations.
(5) If the Planning Authority does not communicate its decision whether to grant or refuse permission to the applicant within sixty days from the receipt of his application, or within sixty days from the date of receipt of reply from the applicant in respect of any requisition made by the Planning Authority, whichever is latter, such permission shall be deemed to have been granted to the application on the date immediately following the date of expiry of sixty days.
Provided that, the development proposals, for which the permission was applied for, is strictly in conformity with the requirements of all the relevant Development Control Regulations framed under this Act or bye-laws or regulations framed in this behalf under any law for the time being in force and the same in no way violates either the provisions of any draft or final plan or proposals published by means of notice, submitted for sanction under this Act:
Provided further that, any development carried out in pursuance of such deemed permission which is in contravention of the provisions of the first proviso, shall be deemed to be an unauthorized development for the purposes of sections 52 to 57.
(6) The Planning Authority shall, within one month from the date of issue of commencement certificate, forward duly authenticated copies of such certificate and the sanctioned building or development plans to the Collector concerned." 78
98. Section 46 enacts a salutary provision inasmuch as the provisions of development plan shall be duly regarded to by the Planning Authority in considering application for permission. Section 47 provides for an appeal to the State Government against the order under Section 45 refusing or granting permission on conditions. The appeal lies to the State Government. Section 48 provides for lapsing of permission granted under Section 45 or under Section 47 and the period for which such permission remains in force.
99. Section 49 sets out the obligation to acquire land on refusal of permission or on grant of permission in certain cases. Section 50 deals with deletion of reservation for designated land for interim draft for final development plan. Section 51 confers powers of revocation and modification of permission to develop. Then comes Sections 52 and 53 which read as under : "52. Penalty for unauthorized development or
for use otherwise than in conformity with Development plan.-(1) 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; or
(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) after the permission for development has been duly revoked; or
(d) in contravention of any permission which has been duly modified shall, on conviction, be punished with imprisonment for a term which shall not be less than one month but which may extend to three years and with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees, and in the case of a continuing offence with a further daily fine which may extend to two hundred rupees for every day during which the offence continues after conviction for 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 or 47, or where the continuance of such use has been allowed under that section continues such use after the period for which the use has been allowed or without complying with the terms and conditions under which the continuance of such use is allowed, shall, on conviction be punished with fine which may extend to five thousand rupees; and in the case of continuing offence, with a further fine which may extend to one hundred rupees for every day during which such offence continues after conviction for the first commission of the offence.
53. Power to require removal of
unauthorized development.-(1) 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, being not less than one month, as may be specified, therein after 80
the service of the notice, to take such steps as may be specified in the notice,
(a) in cases specified in clause (a) or (c) of sub- section (1) of section 52, to restore the land to its condition existing before the said development took place.
(b) in cases prescribed in clauses (b) or (d) of sub-section (1) of section 52, to secure compliance with the conditions or with the permission as modified:
Provided that, where the notice requires the
discontinuance of any use of land, the Planning Authority shall serve a notice on the occupier also. (2) In particular, such notice may, for purposes of sub-section (1), require -
(a) the demolition or alteration of any building or works;
(b) the carrying out on land of any building or other operations; or
(c) the discontinuance of any use of land.
(3) Any person aggrieved by such notice may,
within the period specified in the notice and in the manner prescribed, apply for permission under section 44 for retention on the land of any building or works or for the continuance of any use of 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 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 (2).
(5) If the permission applied for is granted, the notice shall stand withdrawn; but if the permission applied for is not granted, the notice 81
shall stand; or if such permission is granted for the retention only of some buildings, or works, or for the continuance of use of only a part of the land, the notice shall stand withdrawn as respects such buildings or works or such part of the land, but shall stand as respects other buildings or works or other part of the land, as the case may be and thereupon, the owner shall be required to take steps specified in the notice under sub- section (1) as respects such other buildings, works or part of the land.
(6) If within the period specified in the notice or within the same period after the disposal of the application under sub-section (4), the notice or so much of it as stands is not complied with, the planning Authority may-
(a) prosecute the owner for not complying with the notice; and where the notice requires the discontinuance of any use of land any other person also who uses the land or causes or permits the land to be used in contravention of the notice; and
(b) where the notice requires the demolition or alteration of any building or works carrying out of any building or other operations, itself cause the restoration of the land to its conditions before the development took place and secure compliance with the conditions of the permission or with the permission as modified by taking 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.
(7) Any person prosecuted under clause (a) of
sub-section (6) shall, on conviction, be punished with imprisonment for a term which shall not be less than one month but which may extend to three years and with fine which shall not be less than two thousand rupees but which may extend
to five thousand rupees, and in the case of a continuing offence with a further daily fine which may extend to two hundred rupees for every day during which such offence continues after conviction for the first commission of the offence."
100. A bare perusal of the same would indicate that Section 52 provides for penalty for unauthorized development or for use otherwise than in conformity with the Development plan whereas Section 53 confers the powers to require removal of unauthorized development. Distinction between Sections 52 and 53 is obvious. The Legislature could not have intended that unauthorized development should be visited only with penal consequences. It enacted for the sake of completeness and in public interest Section 53 which empowers the Planning Authority to require removal of unauthorized development. Thus, punishing the wrong doer is not enough. The development also must be removed and for that purpose provision was necessary. The arguments before us centered around the interpretation of Section 53 and we will advert to this aspect later on.
101. In the relevant Municipal statutes, namely, the Mumbai Municipal Corporation Act, 1888 and the Bombay Provincial Municipal Corporation Act, 1949 which is applicable to the Mira Bhayander Municipal Corporation, our attention has been invited to 83
Sections 351 and 353 of the MMC Act, 1888 and to Chapter XV of the Bombay Provincial Municipal Corporation Act, 1949 and in particular Section 267 thereof.
102. Our attention has also been invited to the Development Control Regulations for Greater Mumbai, 1991 which are traceable to Section 22(m) of the MRTP Act, 1966. These are the Regulations providing for grant of permission and regulating in general the construction and development activity.
103. Mr. Thorat, learned Senior Counsel appearing for the Petitioner in Writ Petition No.1077 of 2007 and in the Appellate Side Writ Petition No.1379 of 2008 made the lead argument on behalf of the Petitioners. He contended that the building activity in Mumbai is regulated by the MRTP Act, 1966, MMC Act, 1888, the Building Bye- laws and the DC Regulations which are traceable to Section 22(m) of the MRTP Act, 1966. He submits that the concept of Floor Space Index and Transferable Development Rights has been spelt out in the DC Regulations of 1991 and more particularly in Regulation 34 of Appendix VII. He submits that these concepts, when introduced, were very laudable. However, now market forces have taken over. Mr. Thorat submits that another statute which cannot be lost sight of in these matters is the Maharashtra Ownership Flats (Regulation of 84
the Promotion of Construction, Sale, Management and Transfer) Act, 1963, (hereinafter referred to for short as "MOFA Act"). Therein concept of promoter is outlined. He submits that this is necessary because a builder and developer is often engaged by owners of lands to undertake construction and development work on their behalf. They authorize him by executing appropriate documents. They confer upon him right not only to develop and construct on the land but to dispose of the constructed area in open market. Thus, Petitioners and several other purchasers of flats and tenements deal with the promoter builder. They are unaware of the extent of the authority conferred by the owner of the land in their favour. Further, the agreements are executed by the flat purchasers with the builders on the presumption that all statutory approvals and permission have been duly obtained by him. That is the representation frequently made to them. Such persons while executing the agreement are not shown complete set of documents and material and relevant particulars are also withheld from them. They proceed on the basis that when several projects in the vicinity have come up, the area is residential and the township is developed. That means constructions are permitted on these lands. Thus, believing the statements and by observing the actual development at site, that the flat purchasers invest their hard earned money. The flat purchasers are taken aback and surprised by sudden event of notices being issued to the owners 85
and very often the owners and developers suppress the fact of issuance of such notices. Therefore, even if the stop work notice is issued in the absence of appropriate public disclosure and display at site, the flat purchasers are not aware of the fact that the construction is not permissible or is stopped or halted for non- compliance with certain statutory provisions or terms and conditions of the development permission. Only the broad outline is revealed. That broad outline is nothing but a plan of the flat and tenement which is annexed to the agreement with the flat purchaser. There is list of specifications and amenities. Beyond this there is no information given of the statutory approvals save and except setting out certain dates and numbers in the recitals to the agreement. The flat purchaser is unaware of the extent of the development permission, the terms and conditions, the period for which it is in force, the details of FSI/TDR. Therefore, when it is pointed out to them that the construction is unauthorized and illegal that they have to rush to Court of law. There is a fear that if the construction which is alleged to be unauthorized and irregular, if demolished, the residential accommodation itself is lost for ever. Therefore, within the scheme of the Act and the Rules there is enough scope for condoning the deficiencies and lapses on the part of the builders and developers, regularizing and retaining the illegal and unauthorized construction. Demolition is the last resort and should be so. If the 86
construction is capable of being regularized, then, that must be the rule and demolition and removal should be the exception. He submits that in Writ Petition No.1077 of 2007, all these aspects have been highlighted and the Petitioner has stated before the Court that the Municipal Commissioner has failed to apply his mind before directing demolition of the construction. The construction of the 10th floor is admittedly coming within the ambit of the notice under Section 53(1) of the MRTP Act, 1966. However, the notice itself is dated 24th October 2002. There was a Public Interest Litigation pending which came to be disposed of by issuing the afore- mentioned directions in pursuance of which the Municipal Commissioner was obliged to go into the issue of whether the construction of 8 to 24 (part) floors can be regularized. Mr.Thorat submits that the Public Interest Litigation highlighted these aspect and the matter therefore is squarely covered by the orders and directions dated 5th May 2004 in these Public Interest Litigations. Mr.Thorat submits that for the acts and omissions of the builder and developer, the flat purchaser should not be penalised as he is the ultimate sufferer. Therefore, the order dated 14th May 2007 be quashed and set aside. While on the legal issue, Mr.Thorat was fair enough to assist the Court by pointing out that the Division Bench decision of this Court and the relevant statutory provisions enable retention of the unauthorized development provided the person who 87
is aggrieved by notice under Section 53(1) makes an application for permission under Section 44 for retention on the land of any building or works or for continuance of use of the land to which notice relates. He submits that pending final determination or withdrawal of the application, mere notice itself does not affect the retention of building or works or the continuance of such use, is the legal provision. He submits that if the permission applied for is granted, then the notice itself is withdrawn but if the permission is granted either in full or in part, then it stands to that extent and thereafter the Planning Authority is empowered to initiate prosecution for not complying with the notice and for demolition or alteration of the building or works. This is a provision in addition to the prosecution. Mr.Thorat submits that it is not necessary to once again go into the ambit and scope of the powers conferred on the Planning Authority in this behalf. Mr.Thorat submits that even the discretion conferred under the DC Rules and more particularly DC Regulations 63 and 64 is on a high powered officer and in this case the highest official, namely, the Municipal Commissioner. If that power is conferred on the Municipal Commissioner, then the presumption is that it would be exercised in good faith and for public good. That is the presumption in law and when even exercise of that power is circumscribed and restricted to condoning of deficiencies, then, what the law postulates as a whole is permission 88
to retain the unauthorized development. However, that is subject to making an application under Section 44. He submits that relevant statutory provisions therefore must be seen in their entirety and read together. These are provisions for planned development and regularization of construction activity within the jurisdiction of the respective Planning Authorities. While not over-looking the larger public interest and public good and not sacrificing the concept of planned and regulated development, in individual cases the Planning Authority/the Municipal Corporation can regularize the construction unauthorizedly done as in this case. In such circumstances, this Court must call upon these statutory authorities to exercise such powers and not allow them to resort to demolition of the construction at sites straightaway.
104. Mr.Anturkar who has appeared along with Mr.Thorat in another matter, namely, Appellate Side Writ Petition No.1379 of 2008, contended that MMC Act and Section 53(6) of the MRTP Act, 1966 are provisions which enable the Planning Authorities/ Municipal Corporation to call upon the person who has erected or executed the building for work at site to cause to do something by which the work or construction will not violate the provisions in the MMC Act or any bye law made under the Act. It is a provision which enables the Corporation to monitor the development and works even 89
when they are being executed. Even after they are complete as well, this provision enables the necessary amendments or rectification to be carried out so that the construction does not become illegal. The argument of Mr.Anturkar is that the solution is to be found in the statutory provisions themselves. The solution is that to call upon the person to restore the lands to its condition not necessarily by demolition. It enables securing compliance with the conditions of the permission originally granted or the permission as modified by taking such steps as the Planning Authority may consider necessary. He submits that Section 53(6) must be read so as to permit regularization of such works and recover the amount of expenses incurred from the owner as arrears of land revenue. In short, he submits that demolition is an option given to the Planning Authority. It is not the only step which the Planning Authority must take to tackle the problem of unauthorized development and construction. The Planning Authority cannot urge that if the retention permission is not sought or if the permission is not granted even if sought that the building has to be necessarily demolished. Mr.Anturkar submits that the Planning Authority must in the interest of the purchasers and innocent public resort to such powers as would penalize the wrong doer but at the same time protect the interest of the purchasers. The Planning Authority can recover monies from the wrong doer by imposing heavy costs and fines so as to deter him and 90
others from doing such acts. In his submission, there are several deterrent provisions and the authorities must resort to them instead of demolishing the unauthorized construction/Buildings. The demolition serve no purpose after flats are booked, entire consideration paid and purchasers are put in possession. In such circumstances, this Court must pass appropriate orders and directions in these cases and particularly bearing in mind the above.
105. During the course of arguments what we find was that save and except making allegations of illegalities, irregularities and wrong doing, the flat purchasers and the Developer and Builder is towing the same line. There is a theme in their arguments background, namely, that the illegal construction or unauthorized works should be regularized in the individual cases when they are capable of being regularized. Mr.Narula, learned Counsel appearing for the Developer, went a step ahead and stated that it has been pointed out to the authorities that there is FSI available. The FSI can be availed of by purchasing TDR from adjoining projects of the same Developer and by loading it on the subject projects/buildings. If such steps are taken then the construction is not at all illegal but is capable of being regularized. Mr.Narula submits that the details of the FSI and TDR available for exploitation by the Developer in these cases are already on the records and files of the Municipal 91
Corporations. Therefore, if the Municipal Corporation in one case resorts to demolition whereas in other case regularizes the construction, then, all the more this Court should not uphold the order of demolition but should direct authorities to take a consistent view in the public interest.
106. Mr.Narula has pointed out that in the garb of public Interest Litigation, the Petitioner Sudhir Khandwala has private interest of the business rival of the Developer-Ravi Developers. Mr.Narula points out that M/s.Nova Nirman Nigam is the rival of Respondent Nos.5-7 M/s.Ravi Developers. He has put up Sudhir Khandwala to file the Petition. The sole proprietor of M/s.Nova Nirman Nigam Shri Arun Damji Gada is interested in ensuring demolition of the building constructed by Respondent Nos.5/7 Developer. He is putting a spoke and obstacle in the projects. He is instrumental in forwarding complaints to the authorities and initiating action under Section 53(1) of the MRTP Act, 1966. Since he is acting mala fide and cannot be said to be a crusader against unauthorized and illegal construction in the city of Mumbai, equally, his stooge, the Petitioner cannot be said to be acting otherwise. The Petitioner is towing his line and this is nothing but a private interest and motivated litigation to harass the Developer. This Court therefore should not go into any larger issues. At the same time this 92
Court should not direct demolition of building but must issue appropriate writs so that the authority considers the proposals of regularization. In such circumstances, these Petitions to the extent they seek demolition should be dismissed. The learned Senior Counsel appearing for Respondent No.7 (M/s. Nova Nirman Nigam) during the course of arguments raised disputed issues on interse rights with which we are not really concerned. The Private Disputes have to be settled elsewhere.
107. We did not have benefit of the arguments on the larger issue from other Counsel save and except from Mr.K.K. Singhvi, the learned Senior Counsel appearing on behalf of the Municipal Corporation of Greater Mumbai, and Mr. R.S. Apte, the learned Senior Counsel appearing for Mira Bhayander Municipal Corporation. Mr.Singhvi pointed out that the source of power of regularization has been set out in the affidavit of Mr.Jairaj Phatak, Municipal Commissioner of the Municipal Corporation of Greater Mumbai. He submits that the Municipal Commissioner has the powers not only under the Municipal law but under the DC Regulations and it is that power which has been exercised in this case. Similarly, Mr.Apte submits that even the Municipal Commissioner of other Municipal Corporation has the same power although the building bye-laws or the regulations to control 93
development not containing identical provision. The other Counsel more or less adopted the afore-mentioned line of arguments.
108. Mr.Kamdar, learned Senior Counsel appearing for the Petitioners in Writ Petition No.3123 of 2006 questioned the order of the Municipal Commissioner in that case directing payment of penalty to the extent of 1.5 times by urging that it is exhorbitant, arbitrary and excessive. It has no nexus with the ultimate action of regularization. If regularization is to be permitted by the statutory provisions, then, that power must be exercised within the reasonable limits. The power should not be mis-used by imposing onerous conditions which are incapable of being complied with. If the penalty in this case is to be much more than the cost of construction and carrying out development and when there is no criteria, then, the levy of penalty as a condition precedent can also be challenged on the ground of unreasonableness. Therefore, the policy of regularization ought to be implemented uniformly and reasonably so also in a fair and just manner. If it is not so implemented and applied, then, the authorities will pick and choose works and constructions for demolition and regularization. The exercise would be completely arbitrary and unbridled. In such circumstances, the levy of penalty in this case should be set aside. 94
109. Mr.Singhvi, learned Senior Counsel appearing for the Municipal Corporation of Greater Mumbai in this case has justified the penalty and has stated that in the order itself so also in the affidavit the reasons have been pointed as to why the Circular has been issued is applied to this case. He submits that considering the extent of the construction and in the garb of repair permission, the same has been made, the quantum of penalty cannot be said to be exhorbitant nor the levy can be termed as arbitrary and unreasonable in any manner. Therefore, this Petition be dismissed. Ultimately, the wrong doer has been penalised and the penalty has a nexus with the illegality and wrong committed by the Petitioners. If the entire construction is unauthorized and illegal, but the Petitioner has been given an option to pay the amount of penalty and get atleast the retained portion regularized, then, in these circumstances, this is not a fit case for grant of any equitable and discretionary relief.
110. In the light of the above contentions, the principal issue that arises is whether the Planning Authority/Municipal Corporations has any power of regularization. We have while reproducing Section 53 made a brief comment on this aspect of the matter. To carry that discussion further, it would be necessary to note that this provision empowers the Corporation to issue a notice on the owner requiring him within such period, being not less than one month, as may be 95
specified, therein after the service of the notice to take such steps as may be set out in the notice. The cases covered by Section 53(1) are those specified in clause (a) to clause (c) of Section 52(1). In such cases the notice may be for restoring the land to its condition existing before the said development took place. Where the development or change in the use of the land is not in accordance with the permission granted or contravenes any condition subject to which that has been granted or contravenes any permission which has been duly notified, then, the notice may secure compliance with the conditions or with the permissions as modified. In cases where the notice require discontinuance of any use of the land, the Planning Authority shall serve a notice on the occupier also. The notice may require demolition or alteration of any building or works, the carrying out on land of any building or other operations or the discontinuance of any use of land.
111. Any person aggrieved by such notice may within the period specified in the notice and in the manner prescribed can apply for permission under Section 44 for retention on the land of any building or works or for the continuance of any use of 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 buildings or works or the continuance of such use. 96
112. Section 53(4) states that the foregoing provisions of the Chapter shall so far as as may be applicable apply to the application made. Further, Section 53(5) states that if the permission applied for is granted, the notice shall stand withdrawn but if the permission applied for is not granted, the notice shall stand or if such permission is granted for the retention of only of some buildings or works or for the continuance of use of only the part of the land, the notice shall stand withdrawn as respect to such buildings or works or such part of the land, but shall stand as respect to other buildings or works or other parts of the land, as the case may be and thereupon the owner shall be required to take steps specified in the notice under sub- section (1) as respect of such other buildings, works or part of the land. Sub-section (6) provides for prosecution of the owner for not complying with the notice and where the notice required discontinuance of any use of land any other person also who uses the land or causes or permits the land to be used in contravention of the notice.
113. Section 53(6)(b) states that where the notice requires the demolition or alteration of any buildings or works carrying out of any building or other operations, then, the Planning Authority may itself cause the restoration of the land to its conditions before the 97
development took place and secure compliance with the conditions of the permission or with the permission as modified by taking such steps as the Planning Authority may consider necessary including demotion or alteration of any buildings or works or carrying out any buildings or other operations and recover the amount of any expenses incurred by it in this behalf from the owner as arrears of land revenue.
114. Thus, the scheme is that if the notice is served on the owner for the purposes aforesaid, then, any person aggrieved by such notice may within the period specified in the notice and in the manner prescribed apply for permission under Section 44 for retention of the land of any buildings or works or for the continuance of any use of the land to which the notice relates. The purpose is obvious because even if the notice is served on the owner by the Planning Authority, the person aggrieved by the notice may be anybody other than the owner, who has carried out the works or the operations including the construction of a building. When such a person applies under Section 53(3) he must seek permission contemplated under Section 44 of the MRTP Act, 1966. Section 44 provides for an application for permission for development. That provision enables any person who is not Central or State Government or a local authority intending to carry out any development on any 98
land, for permission in such form and containing such particulars and accompanied by such documents as may be prescribed. That is an application for development. Therefore, what Section 53(3) permits is to apply for permission under Section 44 of the MRTP Act, 1966 but that permission will be for retention on the land of any buildings or works or for the continuance of any use of the land as the case may be to which the notice relates. 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. Therefore, despite the notice being issued to the owner, that person or any other person can apply for retention and only that application is considered, until then, notice shall not affect the retention of the works or buildings or continuance of such use. If no application for permission under Section 44 of the MRTP Act, 1966 is made for retention, then, the notice will come into force.
115. In the instant case, we are dealing with construction of buildings. The factual backdrop in which the issue arises for our consideration is construction of additional floors in excess of the permission already granted for development. It is with regard to this excess portion that notices under Section 53(1) of the MRTP Act, 1966 have been issued and, therefore, the question is whether these 99
portions/works can be regularized by taking recourse to Section 53(3) of the MRTP Act, 1966 or otherwise.
116. For answering this question, we will have to first consider as to whether there is any provision permitting regularization of the works in the statutory scheme at all. We need not answer this question in the light of the authoritative pronouncement of the Hon'ble Supreme Court in the case of Mahendra Baburao Mahadik and others v Subhash Krishna Kanitkar and others, AIR 2005 SC 1794.
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 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 100
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
xxxxx xxxxx xxxxx
38. Once such a notice under Section 52 is served, the persons aggrieved within the 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 101
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.
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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 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 102
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, (8 SCC 733), in paragraph 47, it referred to the decision of the Supreme Court in M.I. Builders Pvt. Ltd. v Radhey Shyam Sahu and others, ( 6 SCC 464) and in paragraphs 48 and 49 held thus :-
"48. A discretionary power must be exercised having regard to the larger
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 103
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, 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 Commissioner in specific cases where 105
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 to be 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 106
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 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 107
compulsory open the 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 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 108
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 109
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 Regulations and Rules pertaining to FSI, open spaces, set backs, etc. It is nobody's case that these Rules 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.
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.
As observed by the Supreme Court in the case of Mahendra B Mahadik (supra), all powers are in the nature of Trust. The authorities and officers exercising powers under Building Regulations so also under planning laws, act as trustees of the public at large. The faith and trust that is reposed in them is in the belief and hope that they do not exercise the discretionary powers, without any adherence to the very laws, under which they are empowered to act and decide such cases. They cannot bye-pass their own rules and regulations and sacrifice public health and public safety. These are vital matters and they cannot be a casualty in the hands of the Municipal and Town Planning authorities. Therefore, before they take any decision they must not only consider the alleged hardship to individual flat purchasers/ holders/occupants but bear in the interest of those residing in the neighbourhood and the public at large. The city and town so also the area as a whole has a vital interest in such matters. Ultimately, planned and regulated development of a city or town is the object of enacting planning laws. Therefore, the interest of all residents is at stake. The Municipal and Town Planning authorities cannot adopt an attitude by which they further the interest and cause of developers and wrong-doers at the cost of the township as a whole. They must bear in mind the fact that essential and basic amenities like water and electricity are scarce. The pressure on land is immense. It is not possible to construct bridges, 112
roads all the time. Ultimately, a city or town is planned for a certain number of people and population. The infrastructure and basic amenities are provided considering the existing population and growth at a projected rate over a passage of time. If there is increasing pressure and burden on the existing facilities and amenities, then, the whole system would collapse resulting in large scale inconvenience. In every city or town certain number of schools, educational institutions, hospitals, public conveniences etc. are provided on the basis of population figures and by future projection. These matters must therefore have a bearing, when an application for retention is made and it is not possible to hold that the authorities should allow such applications only because the Builder/Developer manages to generate FSI in the form of TDR or otherwise. Similarly, the argument that these constructions be regularized by imposing fine and charging high fees as a matter of course is also difficult to accept, for the afore-mentioned reasons. If by imposition of fine and charging of compounding fees, large scale unauthorized constructions are regularized, then, that would encourage the Builders and Developers so also others having interest in the development activities, to violate laws openly. They will always proceed on the basis that the building regulations can be breached with impunity and all that they would be visited with, is high compounding fees. That is not the intention of the Legislature. 113
The penal provisions in Sections 52 and 53 of the MRTP Act, 1966, are enacted with a defined object and purpose. It is to discourage unauthorized and illegal development and also punish the wrong doers. In addition to punishment of wrong doers and offenders, the Legislature empowers the Planning Authority to pull down, remove or alter the unauthorized development or works. Therefore, there is a twin object and purpose in such provisions. That is to check and control unauthorized construction and development and at the same time penalise all those who are responsible for the same. Therefore, by merely charging compounding fees and imposing heavy fines such construction cannot be regularized. Ultimately, the exercise of this discretionary power must not result in a licence to break planning laws. Individual's interest in a property, his right to enjoy it is subject to larger public good and purpose. That right has to be balanced with the requirements of the society. It is not absolute. While dealing with request of retention and regularization, the deviation and deficiencies, the extent of irregularities, the damage and ill-effects thereof and the conduct of the parties, are all relevant considerations. What can be termed as a minor deviation or departure in a given case, may still have adverse affects and consequences on the overall development and planning of the city and town. Once the population is increasing, then what is a minor deviation and what could be termed to be a major infraction or 114
breach or violation of the planning laws, are matters which must be decided by the Planning Authorities in the facts and circumstances of each case bearing in mind the above objects and purpose. They cannot as a matter of rule regularize unauthorized constructions by allowing the Builder/Developer/wrong doer to compensate for the violation in terms of money or by permitting him to load TDR/FSI from adjoining plots and areas. If we lay down such a general rule, we would be going contrary to the judicial pronouncements in the field. That would be violating the law of the land. We are bound by the Supreme Court decisions and, therefore, cannot lay down any principle contrary to the same.
124. In this behalf, we would like to invite the attention of all concerned to the observations of the Supreme Court in paragraphs 46 and 47 of the decision in Mahendra B. Mahadik (supra).
125. In another decision in the case of Consumer Action Group and another v State of Tamil Nadu and others reported in AIR 2000 SC 3060, the Supreme Court observed thus :- "37. Mere reading of this reveals, administrative failure, regulatory inefficiency and laxity on the part of the concerned authorities being conceded which has led to the result, that half of the city buildings are unauthorized, violating the 115
town planning legislation and with staring eyes Government feels helpless to let it pass, as the period of limitation has gone, so no action could be taken. This mess is the creation out of the inefficiency, callousness and the failure of the statutory functionaries to perform their obligation under the Act. Because of the largeness of the illegalities it has placed the Government in a situation of helplessness as knowing illegalities, which is writ large no administratively action of demolition of such a large number of cases is feasible. The seriousness of the situation does not stay here when it further records, this is the pattern in other metropolitan cities of India. What is the reason? Does the Act and Rules not clearly lay down, what constructions are legal what not? Are consequences of such illegal constructions not laid down? Does the statute not provide for controlled development of cities and rural lands in the interest of the welfare of the people to cater to public conveniences, safety, health etc.? Why this inaction? The Government may have a gainful eye in this process of regularization to gain affluence by enriching coffers of the State resources but this gain is insignificant to the loss to the public, which is State concern also as it waters down all preceding developments. Before such pattern becoming cancerous to spread to all part of this country, it is high time that remedial measure is taken by the State to check this pattern. Unless the administration is toned up, the persons entrusted to implement the scheme of the Act are made answerable to the latches on their failure to perform their statutory obligations, it would continue to result with wrongful gains to the violators of the law at the cost of public, and instead of development bring back cities into the hazards of pollution, disorderly traffic, security risks etc. Such a pattern retards the development, jeopardises all purposeful plans of any city, and liquidates the expenditure incurred in such development process."
126. In the light of the above mentioned principles, we are of the view that the Municipal Commissioner was in no error in passing the order dated 14th May 2007 in Writ Petition No. 1077 of 2007 directing demolition of 8th to 24th floors and pulling down of the same by the Builder and Developer at his own costs. That order is passed bearing in mind the afore-mentioned principles and showing due concern for safety and health of the inhabitants of the buildings and of the neighbourhood. In all such cases, the flat purchasers are aggrieved but their interest cannot over-ride those of the members of the public at large. Their individual rights and interests are substantiate 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 also enactments such as Right to Information Act are in place, it is not unreasonable to accept 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 around and seek assistance of the Courts. Ultimately, the jurisdiction under Article 226 of the Constitution of India is extra-ordinary, discretionary and equitable. 117
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 unauthorized 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. Consequently, Writ Petition No.1077 of 2007 fails and is dismissed but without any order as to costs.
127. For the reasons afore-mentioned and finding that the levy of the penalty and fine in Writ Petition No.3123 of 2006 is commensurate with the illegality, we do not find that this is a fit case for interfering with the order passed by the Municipal Commissioner directing payment of penalty as a pre-condition for regularization of the unauthorized construction. That the Municipal Commissioner has allowed retention of the same is disturbing enough. The 118
Petitioner had repeatedly approached Courts of law for saving illegal and unauthorized constructions. Ultimately, the structure to the extent of 4th to 6th floors was ordered to be demolished. The rest of it was unauthorized and illegal. Now that has been regularized by imposing a heavy penalty. That penalty is imposed by taking into consideration all relevant factors including the conduct of the Petitioner. We do not find that the Circular applied in this case and levy of penalty at the rate of 1.5 times more than what is prescribed under the law is in any way arbitrary, onerous or excessive so also unreasonable and unfair. In the peculiar facts of this case and considering the large scale breaches and violations, we do not think that any wider controversy needs to be gone into and decided. Writ Petition No.3123 of 2006 must, therefore, fail and is accordingly dismissed.
128. As far as the Writ Petition No.1379 of 2008 filed on the Appellate Side of this Court is concerned, what is relevant from the record is that the order dated 17th March 2009 allowing retention of certain buildings and floors has been stayed by the Municipal Corporation itself on 21st March, 2009. If the order dated 17th March, 2009 is tested on the touchstone of the above mentioned principles, then, it is difficult to uphold it. The order dated 17 th March 2009 of the Mira Bhayander Municipal Corporation is, therefore, declared to be illegal and is accordingly quashed and set 119
aside. It is directed that the Mira Bhayander Municipal Corporation should consider the request made by the Developer in that case in the light of the law laid down by this Court and the Supreme Court and pass an order afresh as expeditiously as possible and within a period of twelve weeks from the date of receipt of copy of this judgment. The Municipal Corporation should pass an order without being influenced by any of its earlier observations and findings. It should pass such an order after hearing all affected parties including the Developer and inhabitants of the neighbourhood and the residents/occupants in the lay out.
129. In the light of this, Writ Petition No.1364 of 2009 does not survive and stands disposed of.
130. Writ Petition No.1428 of 2007 filed by a Doctor couple in which a request is that the Court should direct issuance of Occupation Certificate. The Petitioners have highlighted the breaches and violations of the terms and conditions of the IOD and Commencement Certificate. One of the condition imposed pertains to surrendering of tenements meant for Government nominees. That is in pursuance of the conditions imposed in the order of exemption passed by the Competent Authority and on a scheme presented under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976. Admittedly, the requisite number of tenements have not been surrendered. The authorities have now taken a decision that instead 120
of calling upon the Builder/Developer concerned with the project to surrender such tenements, he should compensate the State by paying the sums specified in the order in that behalf.
131. We had called upon the learned Assistant Government Pleader to produce the original records pertaining to the order imposing the penalty in lieu of surrender of flats. What we find from the record is that the Builder/Developer had given an undertaking to comply with the terms and surrender the flats/tenements for Government nominees. The Government instead of enforcing that undertaking by initiating stringent measures, has let off the Builder/ Developer by imposing monetary fine and penalty. The State should be aware that ULC Act was enacted for public good and in public interest. It was found to be constitutional and valid by the highest Court of the land. The whole object and purpose of granting exemption was to ensure construction of tenements for weaker sections of the society so as to solve their problem of housing accommodation. Such persons cannot afford houses and tenements at the rate prevailing in the market. Private entrepreneurs and builders are not interested in construction of mass tenements and flats and sell them at cheaper and reasonable rates to poor and needy persons in the society. Therefore, while granting exemption from the provisions of the ULC Act, conditions were imposed on the Builders and Developers to surrender flats for such persons, who are 121
Government nominees. It is the duty of the Government to ensure them housing accommodation and to fulfill that duty it imposed this condition. Now, it is wriggling out of this duty and obligation by letting off the builder. We are told that there are large scale violations in the city of Mumbai alone and elsewhere and a Public Interest Litigation in this behalf is pending in this Court. We refrain from passing any orders as that would affect the pending matter. Therefore, the facts disclosed in this Writ Petition should also be placed before the appropriate Division Bench dealing with this Public Interest Litigation and thereafter necessary steps be taken. For the present, we can only direct that this Writ Petition should be placed before the Division Bench dealing with the Public Interest Litigation and in the meanwhile the authorities should process the application for grant of Occupation Certificate but shall not pass any final orders thereon until that Public Interest Litigation and this Writ Petition are decided. Record and proceedings produced in this Writ Petition be retained in Court and be placed before the Court dealing with the Public Interest Litigation.
132. In view of this, Writ Petition Nos.1428 of 2007 and Writ Petition No. 1572 of 2009 be tagged with the Public Interest Litigation pending before the Division Bench.
133. In view of the above, we pass the following order :- (I) Writ Petition No. 1077 of 2007 is dismissed.
(II) Writ Petition No.3123 2006 is dismissed. (III) Writ Petition No.1124 of 2007 is dismissed.
(IV) Writ Petition No.1130 of 2007 is disposed of by observing that the Petitioner is free
to adopt such other proceedings as are permissible in law for redressal of the grievances relating to his right in the said
(V) In Writ Petition No.1190 of 2007, Respondent No.2 is directed to treat the
Petition as a representation of the
Petitioner and deal with it in accordance
with law. If Respondent No.2 has not taken any action against the alleged unauthorized construction, then it should
take the same as expeditiously as
(VI) Writ Petition (Lodging) No.1280 of 2007 is dismissed.
(VII) Writ Petition No.1428 of 2007 and Writ Petition No. 1572 of 2009 are directed to
be listed before the appropriate Bench dealing with the Public Interest Litigation.
(VIII) Writ Petition (Lodging) No.1467 of 2007 is disposed of with a direction to place it
before the Commissioner for passing
(IX) Public Interest Litigation No.100 of 2008 is directed to be placed before the appropriate Bench.
(X) Writ Petition No.1379 of 2008 on the Appellate Side is allowed in terms of the
directions in paragraph 128 above.
(XI) Writ Petition No.1364 of 2009 does not survive in the light of the directions in Writ Petition No.1379 of 2008. It is disposed of accordingly.
S.C. DHARMADHIKARI, J.