Full Judgment Text
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CASE NO.:
Appeal (civil) 6057-6058 of 2001
Special Leave Petition (civil) 20494-95 of 2000
PETITIONER:
M/S. LIVE OAK RESORT P. LTD. & ANR.
Vs.
RESPONDENT:
PANCHGANI HILL STATION MUNICIPAL
DATE OF JUDGMENT: 31/08/2001
BENCH:
A.P.Misra, U.C.Banerjee
JUDGMENT:
BANERJEE,J.
Leave granted.
The appellants herein, moved this Court under Article 136 of
the Constitution of India seeking special leave to appeal against the
orders of the Division Bench of the High Court of Judicature at
Bombay in the matter of dismissal of the writ petition being No.
2226 of 1999 dated 10th July, 2000 as also an order of dismissal of
the Review Petition dated 6th November, 2000. By the impugned
order of dismissal, the High Court did lend its concurrence to an
order of demolition of an additional floor constructed by the
appellants in Panchgani said to be in violation of the Municipal
Rules as also of the direction contained in an earlier judgment of the
same High Court in a public interest litigation being No. 2754 of
1997 wherein the High Court has dealt with a circular issued by
Urban Development, Public Health and Housing Department in
1971. Incidentally, be it noted that various public interest petitions
have been filed before the High Court seeking to prevent
construction and/or regular constructions in the Mahabaleshwar-
Panchgani area in the State of Maharashtra being an ecologically
sensitive belt. In the writ petition filed by the Bombay
Environmental Action Group the bone of contention of the
appellants had been that there was large scale illegal construction
and deforestation in the Mahabaleshwar-Panchgani region resulting
in wide spread environmental and ecological degradation to these
two hill stations in the State of Maharashtra. The High Court upon
consideration of the pleadings and the facts on record passed various
orders from time to time and finally dealt with the matter in its
judgment dated 18th November, 1998 containing certain directions
in order to put an embargo to the constant exploitation of nature
resulting in ecological imbalance in the area and thus to avoid the
bio-diversity crisis. The appellants herein were also parties therein
as respondent No.17.
Ecological imbalance and non-conformity of the Municipal
Rules are however two independent and separate factors to invoke
the jurisdiction of the law courts and either of the two factors
however would prompt the law courts to pass necessary orders by
reason therefor to protect the environment.
Before adverting to the contextual facts in the present appeals
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under Article 136 of the Constitution, the earlier order of the
Bombay High Court spoken of hereinbefore in this judgment dated
18th November, 1998 ought to be adverted to so as to appreciate the
resultant culmination on to the issuance of an order of demolition by
the Panchgani Municipal Council and subsequent concurrence
thereof by the High Court in a writ petition filed by the appellants
herein.
Incidentally, be it noted that the two hill stations of Panchgani
and Mahabaleshwar recently have been acclaimed to be very
popular tourist resorts and tourism has thus turned out to be a great
economic benefactor to the State - and it is this possible improved
economic situation that the State Government in the year 1971
issued a circular (more fully dealt with hereinafter in this judgment)
under which an additional FSI was made available to the luxury
hotels (with 3 star facilities and above) - obviously the State
Government at the time of issuance of the circular had in its mind
the long catena of cases of this Court as also that of various High
Courts that while ecology cannot be given a go by, in the same vein
development process cannot be ignored: As a matter of fact the law
courts thus evoked the factum of striking of a balance between the
development and ecology since in a developing economy there
cannot be either development or ecology but both must exist and
thus a balance shall have to be struck between the two, as otherwise
the society will perish in the absence of either of the two elements
noticed above.
In this context, two decisions ought to be adverted to briefly:
one from the Calcutta High Court and the other of this Court. In the
Calcutta High Court, People United for Better Living in Calcutta -
Public & Anr. V. State of West Bengal & Ors.[AIR 1993 Calcutta
215] the Single Judge in paragraph 2 of the Report observed:
"2. While it is true that in a developing
country there shall have to be developments
but that development shall have to be in
closest possible harmony with the
environment, as otherwise there would be
development but no environment, which
would result in total devastation, though
however, may not be felt in presenti but at
some future point of time, but then it would
be too late in the day, however, to control and
improve the environment. Nature will not
tolerate us after a certain degree of its
destruction and it will in any event, have its
toll on the lives of the people: Can the present
day society afford to have such a state and
allow the nature to have its toll in future - the
answer shall have to be in the negative: the
present day society has a responsibility
towards the posterity for their proper growth
and development so as to allow the posterity
to breathe normally and live in a cleaner
environment and have a consequent fuller
development : time has now come therefore,
to check and control the degradation of the
environment and since the Law Courts also
have a duty towards the society for its proper
growth and further development and more so
by reason of definite legislations in regard
thereto as noted hereinafter, it is a plain
exercise of the judicial power to see that there
is no such degradation of the society and there
ought not to be any hesitation in regard
thereto - but does that mean and imply
stoppage of every developmental programme
- the answer is again ’no’ : There shall have
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to be a proper balance between the
development and the environment so that both
can co-exist without affecting the other. On
the wake of the 21st century, in my view, it is
neither feasible nor practicable to have a
negative approach to the development process
of the country or of the society, but that does
not mean, without any consideration for the
environment. As noted above, there should
be a proper balance between the protection of
environment and the development process:
the society shall have to prosper, but not at
the cost of the environment and in the similar
vein, the environment shall have to be
protected but not at the cost of the
development of the society - there shall have
to be both development and proper
environment and as such, a balance has tobe
found out and administrative actions ought to
proceed in accordance therewith and not de
hors the same."
This Court, however, in Goa Foundation’s decision [Goa
Foundation, Goa v. Diksha Holdings Pvt. Ltd. & Ors.: 2001 (2) SCC
97] affirmatively approved the approach as stated in the Calcutta
High Court judgment.
Be it noted that on this factual backdrop and by reason of the
notification in 1971 there was a wide spread violation of the
regional plan for Mahabaleshwar-Panchgani area wherein
agricultural land was being extensively used for non-agricultural
purposes such as hotels, holiday homes, luxurious private
bungalows - it has been the contention of the Bombay
Environmental Action Group that forestry in the Mahabaleshwar-
Panchgani region being depleted at an alarming rate thus requiring
protection and resultant intervention of the Court. The records
further depict that the rule-nisi in the earlier matter was issued on
23rd June, 1997 and while issuing the said rule-nisi the State
Government was directed to form a high level committee to find out
as regards the illegal construction and user of land in violation of the
Regional Town Plan for the area or the Building Bye-laws and
Development Control Rules. The committee in terms of the order
did submit its report on 17th November, 1997, wherein about 1060
buildings in Mahabaleshwar- Panchgani region were found to be in
contravention of statutory protection and suggested various remedial
measures and in terms therewith apart from the directions on to the
Pollution Board, Mahabaleshwar Municipal Council were also
directed to take immediate action against erring parties and it is in
course of hearing that some of the persons who had received notice
submitted that they were prepared to give undertakings to the High
Court that basement of the construction could only be used for
parking, storage, air-conditioned plants and not for any other
purpose. The High Court while dealing with the matter observed:
"In our view, on such undertakings being
given by the parties to whom notices were
issued, no further action would be required to
be taken on the ground that the basement area
is to be included for built-up area
calculations. It was directed that such
undertakings be given to this Court and to the
Chief Officer of the Municipal Council on or
before 15th September, 1998. As regards the
interpretation of the Bye-law, the learned
counsel for the respondent sought time.
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On 15th September, 1998 the parties were
heard at length. With regard to the Building
Bye-laws and Development Control Rules for
Mahabaleshwar and Panchgani Municipal
Councils, the statements made by the learned
Advocate General were recorded, viz.,
(a) For deciding the permissible maximum
height, the council is taking into consideration
the height of average of the four corners of
the surrounding ground level;
(b) The lower storey of the building, if
constructed below or partly below the ground
level, is considered as basement and if
basement is used for the purpose specified in
the Rules such as parking space, store room
or air-conditioning plant room, then it is not
included for calculation of total built-up area
and it is also not considered as one storey or
floor;
(c) The council is following Bye-law 20.6.
which provides that the overall height of any
building shall not be more than 9 mtrs. In
Sector 1, S. No.52 and area selected for
MIG/LIG/EWS housing with approval of
Government and shall not be more than 11
mtrs. in all other areas.
...............................................
In this view of the matter, the Municipal
Councils were directed to exclude the
basement area from built up area calculations
if the owners of the building filed necessary
undertakings before this Court...............
...........As regards the violation of height
restrictions, the Planning Authority was
directed, at its discretion, to condone violation
of 1 or 2 feet wherever such violation was
there and that it was not to be treated as a
license to grant permission to violate the
height limit. Further height should be
counted by taking average height of the four
corners of the plot. The applications for
condonation of such height violations were
required to be filed on or before 30th
September, 1998. Such condonation was
directed to be granted on recovering a penalty
of Rs.1,000/- to Rs. 25,000/-. It was also
clarified that this would not give the authority
to the Councils to sanction plans in violation
of the height regulation.
.........................
...........However, it is clarified that if the
benefit of the Government Resolution of the
year 1971 is already given then those cases
are not to be disturbed and are not to be
reviewed. Henceforth, the benefit of the said
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Resolution is not to be given." (Emphasis
supplied)
It would be convenient to note the true scope and effect of
1971 circular spoken of earlier at this juncture. The circular
incidentally pertains to higher floor space index to luxury hotels
within the jurisdiction of the Municipal Corporations and Municipal
Council in the State of Maharashtra. Relevant extract of the circular
however is noticed herein below. The circular reads:
"Government has been receiving requests from
several Hotels in Maharashtra that they should be
allowed higher F.S.I. for their buildings than is
normally permissible. Government decided that all
the Municipal Corporations - Municipal Councils
in the State of Maharashtra should be advised to
allow higher FSI for luxury hotels with a grading of
3 star and above within their jurisdiction provided
the request is recommended by the Department of
Tourism. Government is also pleased to advise
that the additional FSI to be allowed should not
exceed 50 per cent of the normal FSI allowed in
such cases. Government is further pleased to direct
that the minimum area of the plot should not be less
than 1/4 acre or 1000 sq. meters in respect of hotels
having 10 rooms and where the number of rooms is
more than 10, the plot size should be larger as may
be required by the Department of Tourism.
Government is further pleased to advise the
Municipal Corporations (other than Bombay),
Municipal Councils that if any Development
Control Rules, Town Planning Regulations,
Building regulations applicable in their area do not
permit a higher FSI for luxury hotels as indicated
above, the higher FSI may be allowed in
anticipation of suitable modifications in the
rules/regulations etc."
Admittedly, the appellants herein had commenced the
construction of an additional floor in the existing hotel premises
after conferment of a 3 Star status. Mr. Ganguly, learned senior
counsel, appearing in support of the petition for special leave
contended that the commencement of the construction of the
additional floor in the hotel was on bonafide belief since the plan
furnished by them had in fact being sanctioned by the Director,
Town Planning and as such question of issuance of the order of
demolition would not arise and it is the issuance of this order of
demolition, the appellants herein moved the High Court at Bombay
in a petition under Article 226 of the Constitution which however
was negatived by the High Court with an order of dismissal of the
same and hence the special leave petition before this Court as
noticed earlier.
Mr. Ganguly addressed this Court in detail on two specific
counts challenging the dismissal of the order of the writ petition by
the High Court: the first count being that the High Court’s refusal to
entertain the writ petition has been totally on a misreading of the
earlier judgment of the High Court and on the second it has been
contended by Mr. Ganguly that the finding of violation of the
Municipal Rules warranting a demolition in the contextual facts
have been totally unjustified.
Needless to record that Panchgani, a hill station in Satara
district of the State of Maharashtra has recently been facing a
tremendous influx of people as noticed herein above: a virgin land
having all round beauties of nature thus turned out to be a
tremendously popular tourist centre. Admittedly the High Court,
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however, in order to stop further exploitation of nature directed a
restraint order effective from the date of the order viz., 18th
November, 1998 in regard thereto. It is only a prospective order and
not a retrospective one.
Incidentally, Mr. Dushyant Dave, learned senior counsel
appearing for the intervenor in the matter with his usual felicity of
expression very strongly objected to the submissions of Mr.
Ganguly, upon reliance on the earlier judgment of the High Court as
noticed herein before. Equally forceful however have been the
submissions of Mr. Deshpande appearing for the Government and
Mr. Singh for the Municipal Council.
Before going into the main thrust of submissions of the parties,
a brief look to the order impugned would be convenient at this stage:
the relevant extracts are as below:
"3. We have gone through the original files of the
Municipal Council and the record of the case with
the assistance of the learned counsel for the parties.
We have also perused the photographs of the
structure constructed by the petitioners. The
respondent No.1 has sanctioned for construction of
only ground plus one storey and basement.
However, it appears that the petitioners have
constructed a building of ground plus 3 stories.
The so-called basement is actually a ground floor
which is being used for the purpose of residence
contrary to the Development Control Rules. It is
also seen that the petitioners have violated high
restriction and there is excess construction to the
extent of 107 sq. meters. It seems that this
construction was carried out inspite of stop work
notice given by the respondent no.1 and when the
writ petition No.2754 of 1997 was pending before
this Court.
4. Mr. Reis the learned counsel for the
petitioners strenuously contended that the
petitioners constructed an additional floor in view
of the no objection granted to the Director of Town
Planning. He contended that although technically
there was no sanction from the Municipal Council,
keeping in mind the fact that no objection was
granted by the Director of town Planning and also
the fact that the petitioners had invested additional
funds for the construction of the extra floor and
having regard to the observations made by the
division bench in para 27 of the order dated
18.11.1998, the construction of the extra floor by
the petitioners should be regularised. We do not
find any merit in the submission of the learned
counsel. In the first place petitioners had
constructed extra floors and not one as
contemplated by the circular dated 7.10.1971. As
indicated above petitioners have not constructed
basement and instead they have constructed a
ground floor. Secondly the observation of the
division bench in para 27 of the order are of no help
to the petitioners. The division bench has
categorically held that the benefit of the additional
FSI could not have been given to any 3 Star hotels
after the commencement of the Development
Control Rules. The division bench has merely
clarified that if the benefit of the circular of
7.10.1971 was already given then those
constructions were not be disturbed. In the instant
case it is an admitted position that the plans for
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additional floors were not sanctioned by the
respondent No.1. In the circumstances the
observations made by the Division Bench are not
applicable to the present case and the petitioners
are not entitled to claim any benefit of the said
Government Circular. The construction of
additional two stories is totally unauthorised and
contrary to the Development Control Rules. We do
not find any infirmity in the impugned orders
passed by the respondent No.1."
It is this order which is under challenge in this petition under
Article 136. Incidentally, upon issuance of notice and the interim
order passed in the presence of the parties, all the parties agreed
that the matter under consideration ought to be disposed of at the
notice stage itself and hence the final disposal in terms of this
judgment.
Turning on to the factual score it appears that the rejection of
the plan by the letter dated 20.3.1997 emanating from Panchgani Hill
Station Municipal Council has had four specific grounds and the
same are set out hereinbelow:
"1. The present F.S.I. of the present building’s Ground Floor
and First Floor is more than the F.S.I. given by Hon’ble
Director, Town Planning, Maharashtra State, Pune.
2. It is not correct to grant permission/permissible for
Health Club and Sanitation House.
3. Alongwith the annexed Plan of the construction some
measurements are shown in feet. The feet measurements
must be shown in Metric.
4. Sanitation House is not permissible in Kitchen."
A plain look at the grounds mentioned however, depict that the
principal objection centres round the first of the four grounds. It is in
this respect that one ought to fall back upon relevant correspondence
either inter-departmental or intra parties. First of the series however
is a letter dated 8/13th June, 1995 from the Director, Town Planning
to the Assistant Director, Town Planning, Satara, the letter though
inter-departmental stands disclosed in the proceedings and pertains to
the circular dated 7th October, 1971 spoken of earlier since Mr
Ganguly’s principal defence against so-called violation of Municipal
Act is dependant on this document. Let us have a clear view of the
matter in a broader perspective - A letter dated 6th April, 1995 was
sent by the Municipal Council to the Town Planning Department
expecting guidance whether additional FSI can be granted for the
construction of a three Star hotel at a final plot No.414-E - Town
Planning Scheme No.3 Panchagani by Director, Town Planning,
Maharashtra State, Pune. The same in turn was placed before the
Director, Town Planning, Pune for his opinion and guidance by the
Assistant Director, Town Planning, Satara and which was in turn
replied to by the Director by the letter noticed above dated 8/13th
June, 1995, wherein the issue of grant of additional FSI was
considered and an opinion expressed therein by way of a sanction.
The relevant extract of the letter dated 8/13th June, 1995 are set out
hereinbelow for appreciation of the submissions and being the main
plank of defence against the order of demolition as noticed above.
The relevant extracts whereof, however are as below:
"Holder of the property consisting of the piece and
parcel of land bearing final Plot No.414-E, Town
Planning Scheme No.III situated within limits of
Panchgani Hill Station Municipal Council has been
granted permission for the Hotel by the Municipal
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council and he has submitted proposal for the
additional FSI for carrying out construction of star
Category Hotel and in that connection guidance has
been expected from this directorate.
In accordance with the Circular dated 7.10.71
of the Government, an additional FSI is permissible
for the Three Star and higher grade hotel and
applicant has submitted proposal in accordance
with this circular, there is no objection to sanction
the same. (Emphasis supplied)
In connection with this proposal as suggested
by the Deputy Director, Town Planning,
Maharashtra State, Pune Region, Pune it will be
appropriate to charge fees @ 50% of the existing
markets rate for the additional FSI.
As because of this permission of additional
FSI as one floor will be more than the sanction and
height of the building is more by 3.20 mtrs. than
sanction, it is unavoidable but to give relaxation.
In accordance with provision No.28.2 of the
Development Control Regulations and Certified
Construction Bye-laws which are applicable for
"B" and "C" Class Municipal Councils, relaxation
is being granted as of the special case. Enclose
herewith all papers of the branch office."
(Emphasis supplied)
This decision of the Director, Town Planning as above, was in
turn communicated to the Chief Officer, Panchgani Hill Station
Municipal Council by a letter from the Assistant Director, Town
Planning dated 23rd February, 1996 wherein it has been categorically
mentioned that the letter of the Director dated 13.6.1995 has
provided guidance and a copy whereof was also sent therewith. The
Assistant Director by the said intimation dated 23.2.1996 also
requested the Municipality to deposit a sum of Rs.7,442/- for the
additional FSI granted in the letter of the Director in terms of Section
360-B of the B.C.S.R fees. A further intimation has also been
effected to the effect that the aforesaid sum of Rs.7442/- being the
additional premium is to be recovered from the applicant - The
sanction thus stands acted upon by the parties. The record further
depicts that by letter dated 3rd June, 1996, the Assistant Director,
Town Planning did call for the construction plans of the existing
building and in terms therewith the Municipal Council, Panchgani
forwarded the same upon obtaining copies of the same from the
appellants herein. It is only thereafter however that the Town
Planning Department by a letter dated 31st December, 1996 informed
the Chief Officer of the Municipal Council that the permission for
construction ought not to be granted, the reason being the total area
of construction is more than the construction area which is
permissible and sanctioned by the Director, Town Planning,
Maharashtra State vide letter dated 8/13th June, 1995 and in terms
therewith Panchgani Hill Station Municipal Council wanted a further
clarificatory order from the town planning authority who in turn by
its letter dated 6th March, 1997 recorded the 4 point objection as
noticed hereinbefore and the subsequent application dated 9th
September, 1997 regarding the grant of permission for construction
of the 3 star hotel at the premises in question stood rejected.
Representation made by the appellants but to no effect and
subsequently order of demolition of the portion constructed said to
be unauthorisedly was issued which was brought to challenge before
the High Court and the factual score thereafter stands already noted
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in this judgment and as such we do not think it expedient to repeat
the same once again.
It is in this factual matrix, the High Court dealt with the
matter. At the first stroke, it seems rather significant though the
High Court in the earlier judgment has categorically recorded that if
the benefit of the Government resolution of the year 1971 has
already been given, then and in that event, those cases are not to be
disturbed and thus not to be reviewed. The High Court while
incorporating the same recorded that it is an admitted position that
the plans for additional floors were not sanctioned by the respondent
No.1 and as such, the issue does not seem to have any benefit from
the order of the Division Bench - at the first sight, it seems no
exception can be taken on this but on a closer scrutiny of the record
displaces such an observation of the High Court. By the letter dated
8/13th June, 1995, the Director, Town Planning has categorically
recorded grant of permission of additional FSI and having regard to
an additional floor, it would obviously be more than the sanctioned
height of the building. The appellants were not only authorised to
construct an additional flour but the memo also contained a
relaxation on the height as well to the extent of 3.20 meters than the
permissible sanction limit The letter in question stands extensively
quoted in the earlier part of the judgment and the emphasised portion
would depict the conclusion as has been noticed hereinbefore. The
situation therefore, turns out to be that the Director, Town Planning
being the authority in terms of the provisions of law did grant
sanction of an additional floor with an additional height of 3.20
metres upon proper relaxation being granted. This aspect of the
matter, the High Court has not considered at all and thus clearly fell
into an error. It is to be placed on record that Director himself as a
matter of fact did place reliance on provision 28.2. of the bye-laws
applicable to ’B’ and ’C’ class municipalities in the State of
Maharashtra. The entire reference to the Director was by reason of
the above said provision and all the statutory agencies have acted
thereupon. The above noted provision 28.2 reads as below:
"28.2 The Director of Town Planning may permit
special relaxation to any of the bye-laws, provided the
relaxation sought does not violate the health safety, fire
safety, structural safety, public safety of the inhabitants
and the buildings and the neighbourhood" -
The proviso noticed above having the definite application in
the contextual facts, sanction from the Director, Town Planning in
terms of the Standardised Building Bye-laws for "B" and "C" Class
Municipal Council of Maharashtra supersedes any further power of
the council. As a matter of fact, the power conferred under 28.2
being supreme, the Council is under statutory obligation to abide by
the directions as contained in the Director’s letter as above, and
grant sanction in terms of Section 45 of the MRTP (for short) but in
accordance therewith : This power stands absolute and there is no
escape from that situation. We however, ought not to be understood
to record the unguided power of the Director - The powers of the
Director also stand circumscribed by and under the provision 28.2
itself and to the effect that exercise of such a power pertains to the
grant of additional FSI and correspondingly authority and
jurisdiction to grant relaxation as regard the height.
It is on this score, Mr. Ganguly, contended that the provision
as contained 28.2 of the bye-laws as noticed above does not
recognise any superior authority than the Director in the matter of
grant of additional FSI and since the Director has granted, the
Council has no other alternative or option but to follow the same and
grant sanction in accordance therewith and not de hors the same.
Additional FSI stands granted and the plan on the basis of such
grant, ought in the ordinary course of events to have been
sanctioned. It is on this score that Mr. Dave appearing for the
intervenor alongwith the learned Advocates appearing for the State
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of Maharashtra and the Municipal Council in one voice also very
strongly contended that since the Municipal Council is the ultimate
sanctioning authority in terms of the Maharashtra Regional and
Town Planning Act, 1966, the question of acting in excess of
jurisdiction so far as the Council is concerned would not arise -
obviously there is some confusion persists by reason wherefor the
High Court has also fallen into an error : the reason being failure to
distinguish between the grant of sanction of additional FSI and the
sanction of the building plan. The additional FSI stands granted and
in the event of such a grant, can the Council sit over the decision of
the Director and refuse permission - on an analysis of the different
statutory provisions, our answer cannot but be in the negative. Bye-
law 28.2 clearly recognised the power to grant such a sanction for
additional FSI and the decision of the Director is final on that score
and the Council is to implement such a decision and not act de hors
the same. In the event the respondents’ contentions are to be
accepted, then there exist no justifiable reason for forwarding the
application of the appellants to the Town Planning Department of
the State Government for guidance neither there was any
justification for the Council to deposit the regulation fee of
Rs.7,442/- in terms of the letter of the Town Planning Department as
additional levy for grant of additional FSI - These issues however
remain unanswered: Mere silence however will not provide a solace
to the appellants herein. It is in this aspect of the matter that the
High Court has also fallen to a great error. The High Court by its
earlier judgment has clarified that in the event of the benefit of the
Government resolution of 1971 has already been given, then those
cases are not to be disturbed and not to be reviewed - in fact, such a
benefit has been given by the Director who happened to be the
proper authority to confer such benefit, there ought not to have been
any confusion between the conferment of benefit of the additional
FSI and the grant of sanction of building plans - two issues are
separate in nature and the authorities are also separate - whereas the
Director, Town Planning happened to be the deciding factor in the
matter of grant of sanction of additional FSI and power to relax the
height issue, the Municipality in terms of section 45 of the Act
remained and still remains the authority to sanction or reject the plan
in the ordinary course of events. There is thus no conflict between
the provisions - Mr. Deshpande however significantly contended
that the Director, Town Planning being the authority who is
consulted by the Government before it finalises the draft
development plan of the Municipal Council has a very limited
function to discharge and only to provide technical guidance to the
local authority: the submission however runs counter to statutory
rules and as such we are unable to concur therewith.
In this context a public notice No.VI/999-95-96 in terms of
resolution No.71 dated 28th November, 1995 ought to be noticed.
The public notice reads as below:
"PANCHGANI HILL STATION MUNICIPAL
COUNCIL, PANCHGANI
PUBLIC NOTICE
Under Section 37 of Maharashtra Regional and Town
Planning Act, 1966.:
No.VI/999-95-96. - All citizens residing in
Panchgani Hill Station Municipal Council’s limit are
informed by this public notice, that the Panchgani Hill
Station Municipal Council intends to suggest the
following addition to the development control and
Buildings Byelaws in Chapter XII-B after Law No.52.
In the sanctioned (Revised) Development Plan of
Panchgani Hill Station Municipal Council which has
been sanctioned by the Director of Town Planning,
Maharashtra State’s Notification No.DP/Panchgani
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(R) /49-88/TPV-II dated 12th May 1988 and came into
force with effect from 1st July, 1988.
Proposed addition in Byelaws is given below:
Particulars of Additional Bye-laws
For star category Luxury Hotels in independent
plots and under one establishment with a raling of 3
and above as approved by the Department of
Tourism, Government of India or the State
Government, additional F.S.I. to the maximum
extent of 50 per cent over and above the
permissible F.S.I. in the area in which such hotel
plot is situated may be permitted provided that such
extra F.S.I. shall be subject to payment of such
premium as may be fixed from time to time by the
Municipal Council in consultation with the Director
of Town Planning, Pune provided further that
permissible height of 9.15 m. may be relaxed if
necessary and only to facilitate use of extra F.S.I. in
consultation with the Director of Town Planning.
No condonation in the required open spaces,
parking spaces and any other requirements of the
Development Control Rules except the height as
provided above shall be allowed in case of grant of
such additional F.S.I."
Mr. Deshpande next contended that the letter dated 8/13th June,
1995 cannot but be read as a mere direction to consider the grant of
relaxation of height and not a sanction - we are however unable to
record our acceptance thereto by reason of the specific language of
the Director’s letter noted above.
Mr. Dave for the Intervenor further contended that Bye-law
28.2 of the Development Control Regulation as noted above does
not have any manner of application to Panchgani and contended that
even if it does so applied, the same cannot have any manner of
application by reason of Sections 45, 154 and 156 of the
Maharashtra Regional and Town Planning Act, 1966. Grant or
refusal of permission stands vested with the planning authority and
there cannot be any manner of dispute in regard thereto by reason of
the provisions of Section 45 of the Act of 1966 - This aspect of the
matter has already been dealt with herein before as such we need not
further dilate on the issue excepting recording that the Director did
not act on its own initiative but the ball has been set to roll by the
Municipal Council itself, since they wanted guidance and opinion
apropos the application for additional FSI: It is not that the
petitioner applied before the Town Planning authority but the
application was made to, as in the normal course of events it has to
be, to the Municipal Council and who in their turn sent it to the
Department of Town Planning which ultimately was placed before
the Director, Town Planning and the latter granted while expressing
opinion in regard thereto also granted sanction as also relaxation in
terms statutory conferment of power as noticed more fully
hereinbefore. Mr. Dave’s definite submission however has been that
the appellants are not entitled to get the additional FSI and thus
resultantly no relaxation on heights also is permissible. We are
however, unable to record our concurrence therewith by reason of
the factum of the issuance of the letter by the Director, Town
Planning Department in terms of provision of Rule 28.2 and the
entitlement follows therefrom.
The issue of res-judicata as urged by Mr. Dave need not detain
us for long since in our view, the doctrine or even constructive res
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judicata cannot possibly be have any application in the contextual
facts.
The other aspect of the matter requiring consideration pertains
to the letter dated 31.12.1996 addressed to the Chief Officer,
Municipal Council, Panchgani by the Assistant Director, Town
Planning, Satara wherein the latter intimated the Municipal Council
that sanction should not be granted taking into consideration the
sanctioned development plan of the Panchgani city. The reason for
such a refusal as available therefrom has been stated to be:
"Area of the construction of the building of the first
floor and ground floor carried out at the said
premises i.e. total area of construction is more than
the construction area which is permissible and
sanctioned by the Hon’ble Director, Town
Planning, Maharashtra State, Pune vide letter
No.DS/Panchgani/Star Hotel/final Plot No.414-E,
T.P.S.3/TPV-2/3060/dated 13.6.95."
Needless to record and as noticed hereinbefore that the
Council acting on the basis of such an intimation rejected the plan
and issued the impugned notice. Even a cursory look at the sanction
letter dated 8/13.6.1995 belies the contents of the letter under
reference dated 31.12.1996. The sanction pertains to the additional
FSI vis-a vis the circular issued by the Government dated 7th
October, 1971. The sanction letter dated 8/13.6.1995 did not speak
of construction or grant of sanction pertaining to the ground and first
floor at the said premises. The Director, Town Planning by the
letter dated 8/13.6.1995 never sanctioned any construction area in
the ground and first floor at the same premises. As a matter of fact,
the letter under reference dated 31.12.1996 seems to be overriding
the order of the Director. Significantly, however the letter dated
31.12.1996 corroborates the stand of the appellants that there was in
fact a sanction by the Director, Town Planning vide letter dated
8/13.6.1995. While it is true that sanction was granted for additional
FSI as also increased height but there was never any mention or any
sanction conveyed for ground and the first floor construction in the
letter. It cannot thus but be termed to be the brain child of the
Assistant Director who has, in fact, superseded the order of the
Director - is this a permissible state of affairs? Mr. Deshpande
offered us an answer in silence! Obviously he does not have
anything else at his disposal to justify the issuance of the letter.
Provision No.28.2 of the Development Control Regulation has been
taken recourse to and the Assistant Director not been able to avoid
the same, simply recorded the factum of construction area on the
ground and first floor being in excess of the sanction granted by the
Director, Town Planning. The act or acts on the part of the
Assistant Director by reason of the contents of the letter dated
8/13.6.1995 cannot but be said to be wholly without jurisdiction and
consequently the action on the basis thereof as taken by the
Municipal Council cannot also be sustained.
The observations as noticed hereinbefore thus stands
supported by the municipality’s own public notice This aspect of
the matter has also escaped the attention of the High court and as
such, the High Court fell into a clear error.
As regards the issue of deemed sanction, the High court
answered it in the negative recording therein that the appellants
were refused of any sanction though beyond the period as such
deemed sanction would not arise. Unfortunately, we cannot lend
our concurrence thereto. Panchgani Municipal Council being a
’C’ Class Municipal Council of Maharashtra in its Standardised
Buildings Bye-laws, in particular, bye-law 9.2 records that while
the authority may sanction or refuse a proposal, there stands an
obligation on the part of the authority to communicate the
decision and where no orders are communicated within 60 days
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from the date of submission of the plan either by way of a grant
or refusal thereto, the authority shall be deemed to have permitted
the proposed construction. In view of our observations noticed
hereinbefore, we are not inclined to go into this issue in any
detail suffice however to record that the submissions pertaining
to deemed sanction has substance and cannot be brushed aside in
a summary fashion. Eventual rejection does not have any manner
of correlation with deemed sanction - it is only that expiry of the
60 days that the sanction is deemed to be given, subsequent
rejection cannot thus affect any work of construction being
declared as unauthorised. The deeming provision saves such a
situation. As noticed above, we are not inclined to detain
ourselves any further on this score.
Incidentally, be it noted that even though at the initial stage
of hearing, environmental degradation was spoken of but the
same have not been adverted to at all at the time of final
submissions - the same were restricted to municipal violations.
Environmental Audit Report has not seen the light of the day.
Obviously, there would not be any such affectation and we also
thus do not feel it expedient to deal with that aspect of the matter.
In the view we have taken, we are unable to record our
concurrence with the submissions of both the Intervenors and
Municipal Council as well the State Government. The Appeals
are thus allowed. The order of the High Court stands set aside. It
is however made clear that in the event of there being any
infraction of the order of the Director pertaining to additional
F.S.I. and the height as relaxed by the Director and in the event of
there being any infraction of the Building Rules concerning the
ground and the first floor or the basement thereof, the
municipality would be at liberty to take appropriate steps in
accordance with law. We do feel it expedient to direct further
that the appellants should furnish a fresh undertaking as regards
the user of the basement in this Court within a period of four
weeks from the date of the availability of a copy of this judgment.
The Registry is directed to make available a copy of this
judgment to the appellants with utmost expedition.
No order however as to costs.