Full Judgment Text
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PETITIONER:
PRATIBHA CO-OPERATIVE HOUSING SOCIETY LTD.AND ANR.
Vs.
RESPONDENT:
STATE OF MAHARASHTRA AND ORS.
DATE OF JUDGMENT09/05/1991
BENCH:
KASLIWAL, N.M. (J)
BENCH:
KASLIWAL, N.M. (J)
PUNCHHI, M.M.
CITATION:
1991 AIR 1453 1991 SCR (2) 745
1991 SCC (3) 341 JT 1991 (2) 543
1991 SCALE (1)920
ACT:
Bombay Municipal Corporation Act-Housing Society-
Violation of building laws-Rule 51 violation-Demolition
ordered-Whether valid.
HEADNOTE:
The appellant Co-operative Housing Society Ltd. made
some unauthorised constructions in a 36 storeyed building.
The Bombay Municipal Corporation issued a show cause notice
calling upon the society to show cause as to why the upper
eight floors of the building should not be demolished so as
to limit the development to the permissible Floor Space
Index (F.S.I.) since the additional Floor Space Index to the
extent of 2773 sq. mts. was gained by the appellant. The
appellants submitted a reply to the show-cause notice. The
Administrator of the Municipal Corporation made an order on
21st Septmber, 1984 requiring the appellant to demolish
24,000 sq. ft. on the eight upper floors of the building on
the basis of 3000 sq. ft. on each floor. The Administrator
as well as the State Government dismissed the representation
and appeal by the appellant. So the appellant filed a writ
petition in the High Court which also dismissed with the
observation that the appellant be given a choice to reduce
the construction upto permissible limit by any alternative
proposal within the four corners of the rules and
regulations within one month from 28th October 1985 the
Municipality may consider.
The appellant made application to the Municipal
Corporation giving several alternative proposals on 21st
November 1985. But it also preferred a special leave
petition before this court against the High Court Judgment.
The special leave petition leave petition was dismissed on
January 17, 1986. The appellants alleged that they
submitted another proposal to the Municipal Corporation on
17th February, 1986 and a meeting for hearing alternative
proposals was fixed up by the Municipal commissioner and put
forward its case in support of the new proposals and the
Municipal Commissioner said he would consider the proposals
and take decision. On 27th December 1988 the appellant
wrote a letter to the Municipal Commissioner to consider the
alternative proposal i.e. of
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vertical demolition of the building instead of demolishing
the eight upper floors. In January, 1989 the officers of
the corporation agreed that demolition can be made
vertically so as to bring the entire construction within the
permissible Floor Space Index where as the work of
demolition of upper eight floors of the building were
entrusted to a company by the Municipal Commissioner. So
the appellant again filed a writ in the High Court. It was
dismissed by the Single Judge as well as by the Division
Bench dated 5th March, 1990.
The appellants came by Special Leave Petition in this
Court; The main grievance of the appellant being that
vertical demolition proposal was not considered. Inspite of
orders of this Court in this regard to the Municipal
Corporation no agreeable solution could fructify. The
proposal was examined by the Municipal Commissioner but
rejected on 13th November, 1990 and submitted the detailed
report to this Court.
Dismissing the petition the Court
HELD: The appellant had made illegal constructions in
violation of Floor Space Index to the extent of more than
24000 sq. ft. The decision taken by the Municipal
Commissioner does not suffer from any want of jurisdiction
nor is violative of any law or rules. It is well settled
that the High Court under Article 226 of the Constitution is
not an appellate Court on the administrative decision taken
by the authorities. Since the tendency of raising unlawful
constructions and unauthorised encroachments is increasing
in the entire country and such activities are required to be
dealt with by firm hands. Such unlawful constructions are
against public interest and hazardous to the safety of
occupiers and residents of the multistoreyed buildings.
[749F, 750B, E-F]
This case should be a pointer to all the builders that
making of unauthorised construction never pays and is
against the interest of the society at large. The rules,
regulations and by laws are made by the corporations or
development authorities taking in view the larger public
interest of the society and it is the bounden duty of the
citizens of obey and follow such rules which are made for
their own benefits. [750H-715B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Special Leave Petition
(Civil) No. 5383 of 1990.
From the Judgment and Order dated 9.3.1990 of the
Bombay High Court in Appeal No. 231 of 1990 in W.P. No. 3016
of 1989.
747
K.K. Venugopal, G.L. Sanghi, Sudhir Shah and P.N. Misra
for the Petitioners.
K.K. Singhavi, N.B. Shetye, D.N. Mishra and A.S. Bhasme
for the Respondents.
The Judgment of the Court was delivered by
KASLIWAL, J. This petition under Article 136 the
Constitution of India is directed against the order of
Bombay High Court dated 9th March, 1990.
Facts necessary and shorn of details are given as
under. Pratibha Cooperative Housing Society Ltd.
(hereinafter referred to as ‘the Housing Society’) made some
unauthorised constructions in a 36 storeyed building in a
posh and important locality of the city of Bombay. The
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Bombay Municipal Corporation issued a showcause notice dated
7th August, 1984 calling upon the Housing Society to
showcause within 7 days as to why the upper right floors of
the building should not be demolished so as to limit the
development to the permissible Floor Space Index (F.S.I.).
In the notice it was gained by the Housing Society and that
the construction work had already reached 36 floors and that
on the basis of the actual area of the building, the upper
eight floors were beyond the permissible F.S.I. limit and as
such were required to be removed. The Housing Society
submitted a reply to the showcause notice by their letter
13th August, 1984. The Administrator of the Bombay
Municipal Corporation made an order on 21st September, 1984
requiring the Housing Society to demolish 24,000 sq. ft. on
the eight upper floors of the building on the basis of 3000
Sq. ft. on each floor. The Housing Society made a
representation but the same was dismissed by the
Administrator by order dated 31st October, 1984. An appeal
submitted by the Housing Society was also dismissed by the
State Government on 7th October, 1985. The Housing Society
then filed a writ petition No. 4500 of 1985 in the High
Court. A Division Bench of the High Court dismissed the
writ petition on 28th October, 1985. However, the High Court
while dismissing the writ petition also observed as under:
"It would, however, be fair and just in the
circumstances of the case to give a choice to the
society to reduce the construction up to
permissible limit or whatever other method they can
think of. It is of course for the society to come
748
forward with a proposal in that behalf. We
therefore direct that in case the society comes
with any such alternative proposal within the four
corners of the rules and regulations within one
month from today the Municipality may consider."
The case of the Housing Society is that in pursuance to the
said order it submitted application to the Municipal
Corporation giving several alternative proposals on 21st
November, 1985. It may be noted at this stage that the
Housing Society had preferred a special leave petition No.
17351 of 1985 before this Court against the judgment of the
High Court dated 28th October, 1985 and the said special
leave petition was dismissed by this Court on 17th january,
1986. Further allegation of the Housing Society was that it
submitted another proposal to the Municipal Corporation on
17th February, 1986 and thereafter wrote to the Municipal
Council on 14th August, 1986 to consider their alternative
proposals. A similar letter was also written to the Chief
Minister of Maharashtra. On 29th August, 1986 the Municipal
Commissioner fixed up a meeting for hearing the alternative
proposals of the Housing Society. It has been alleged that
in the said meeting the Housing Society had put forward its
case in support of the new proposals and the Municipal
commissioner had thereafter informed the Housing Society
that he would consider the said proposals and take decision.
However, no decision was taken till the filing of the
present special leave petition before this Court. it has
been further alleged that on 27th December, 1988 the Housing
Society wrote a letter to the Municipal Commissioner to
consider the alternative proposals mainly of vertical
demolition of the building instead of demolishing the eight
upper floors. It had been alleged that a meeting took place
between the architects of the Housing Society as well as the
officers of the Municipal Corporation in January, 1989
wherein the officers of the Corporation agreed that instead
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of demolishing eight upper floors, demolition can be made
vertically so as to bring the entire construction within the
permissible F.S.I. It has been further alleged that
immediately thereafter the Housing Society was informed that
henceforth it should contact the Municipal Commissioner
directly and not any officers of the Corporation. It has
been further alleged that the Corporation without
considering the proposals of the Housing Society entrusted
the work of demolition of the upper eight floors of the
building to a company. In these circumstances the Housing
Society filed writ petition No. 3016 of 1989 in the High
Court. Learned Single Judge dismissed the writ petition by
order dated 19th December, 1989 and the appeal preferred
against the said order was dismissed by the Division Bench
of the High
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Court by order dated 9th March, 1990.
In view of the fact that the main grievance of the
Housing Society was that its alternative proposal of
demolishing the building vertically instead of eight upper
floors was not considered on merits by the Corporation, a
serious effort was made by this Court to get the feasibility
of such proposal examined by the Corporation. Orders in
this regard were passed by this Court on several occasions
but ultimately no agreeable solution could fructify. The
proposal was got examined at the highest level by the
Municipal Corporation and ultimately the Commissioner
rejected the proposal on 13th November, 1990 and submitted a
detailed report in writing for the perusal of this Court.
In the above report it has been stated that in pursuance to
the order of this Court dated 22nd October, 1990, the
proposals submitted by the Housing Society on 27th October,
1990 and 29th October, 1990 in supersession of all
alternative proposals, to demolish vertically one bedroom
and servant quarters on all the floors to bring the building
in tune with the F.S.I. was considered but on the grounds
stated in the report the proposal submitted by the Housing
Society cannot be approved.
In the circumstances mentioned above on the request of
learned counsel for both the parties to decide the case on
merits, we heard the arguments in detail on 23.4.1991.
Thereafter, in order to clarify some points we directed the
Chief Engineer cum Architect and the Municipal Commissioner
to remain present on the next date namely, 1.5.1991 and to
keep the record of the case also ready for our perusal.
We have heard learned counsel for the parties at great
length and have thoroughly perused the record. It may be
noted that the Housing Society had made illegal
constructions in violation of F.S.I. to the extent of more
than 24,000 sq. ft. and as such an order for demolition or
eight floors was passed by the Administrator, Municipal
Council as back as 21st September, 1984. The writ petition
filed against the said order was dismissed by the High Court
on 28th October, 1985 and special leave petition against the
said order of the High Court was also dismissed by this
Court. The High Court in its order dated 28th October,
1985 had granted an indulgence to the Housing Society for
submitting an alternative proposal within the four corners
of the rules and regulations within one month and the
municipality to consider the same. The proposal was
submitted on 21st November, 1985 but in the said proposal
there was no mention of any vertical demolition of the
building. The proposal with regard to the demolition
vertically of one
750
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bedroom and servant quarters on all the floors was submitted
for the first time on 27th December, 1988. During the
pendency of the special leave petition before this Court,
this proposal was got examined by the Municipal corporation.
The Municipal commissioner submitted a report on 13th
November, 1990 giving detailed reasons for rejecting such
proposal. It is well settled that the High Court under
Article 226 of the Constitution is not an Appellate Court on
the administrative decisions taken by the authorities. It
cannot be said that the decision taken by the Municipal
Commissioner suffers from any want of jurisdiction or is
violative of any law or rules. The proposal submitted by
the Housing Society was got examined by the architects and
engineers and thereafter the order was passed by the
Municipal Commissioner. It cannot be said that the action
of the Municipal Corporation is tainted with mala fides. It
was submitted by the learned counsel for the Corporation
that the Corporation has entrusted the matter for
investigation by the CBI and suitable action is being
processed against the guilty officers of the Corporation
with whose connivance these illegal constructions were made
by the Housing Society.
It is an admitted position that six floors have been
completely demolished and a part of seventh floor has also
been demolished. It was pointed out by Mr. K.K. Sighvi,
learned counsel for the Corporation that the tendency of
raising unlawful constructions by the builders in violation
of the rules and regulations of the Corporation was rampant
in the city of Bombay and the Municipal Corporation with its
limited sources was finding it difficult to curb such
activities. We are also of the view that the tendency of
raising unlawful constructions and unauthorised
encroachments is increasing in the entire country and such
activities are required to be dealt with by firm hands.
Such unlawful constructions are against public interest and
hazardous to the safety of occupiers and residents of
multistoreyed buildings. The violation of F.S.I. in the
present case was not a minor one but was to an extent of
more than 24,000 sq. ft. Such unlawful construction was made
by the Housing Society in clear and flagrant violation and
disregard of F.S.I. and the order for demolition of eight
floors had attained finality right upto this Court. The
order for demolition of eight floors has been substantially
carried out and we find no justification to interfere in the
order passed by the High Court as well as in the order
passed by the Municipal Commissioner dated 13th November,
1990.
In the result we find no force in the petition and the
same is dismissed with no order as to costs. Before parting
with the case we would like to observe that this case should
be a pointer to all the
751
builders that making of unauthorised constructions never
pays and is against the interest of the society at large.
The rules, regulations and bylaws and made by the
Corporations or development authorities taking in view the
larger public interest of the society and it is the bounden
duty of the Citizens to obey and follow such rules which are
made for their own benefits.
S.B. Petition dismissed.
752