Full Judgment Text
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CASE NO.:
Appeal (civil) 6433 of 2005
PETITIONER:
Mass Holdings Pvt. Ltd.
RESPONDENT:
Municipal Corpn. of Greater Mumbai & Anr.
DATE OF JUDGMENT: 21/10/2005
BENCH:
Ruma Pal & Dr. AR. Lakshmanan
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C ) No. 19929 of 2005)
WITH
C.A. No. 6434 of 2005
@SLP(C ) No.19931/2005 &
C.A. No 6435 of 2005
@SLP (C) No.19933 of 2005
RUMA PAL, J.
Leave granted.
The appellant had filed a writ petition before the Bombay
High Court challenging a notice dated 26th May, 2004 issued by
the respondents, calling upon the appellant to remove its
hoarding as it was erected in a Heritage Precinct.
The impugned notice had been issued pursuant to an
order of the High Court dated 5th May, 2004 confirming a report
of the Maharashtra Heritage Conservation Committee (set up
by the State Government under the Heritage Regulations, 1995
and referred to hereafter as the ’MHCC’) filed in Writ Petition
No. 1132 of 2002. That writ petition had been filed by way of
public interest litigation by the added respondent herein. The
writ petition had inter alia sought for an order from the High
Court directing the removal of hoardings. The High Court had
referred the matter to an Expert Committee set up by the High
Court. The Expert Committee submitted two lists of hoardings
which, according to the Committee, violated the Heritage
Regulations for Greater Bombay, 1995. On 19th April, 2003, the
High Court granted liberty to the owners of the hoardings to file
representations before the MHCC raising any objections that
they might have to the removal of the hoardings. The MHCC
heard the objections of the hoarding owners and others
concerned with the hoardings, and ultimately submitted a report
to the High Court. The MHCC was of the opinion that various
hoardings including the appellant’s hoardings, violated the
guidelines formulated relating to heritage buildings/structures
and in heritage precincts. The High Court directed the
implementation of the report of the MHCC by the respondents
on 5th May, 2004. Consequently the impugned notice was
issued on 26th May, 2004.
In response to the notice the appellant filed a
representation before the MHCC contending that the
Mahalaxmi Precinct was not included in the heritage list. The
appellant did not wait for the outcome of the representation, but
filed a writ petition before the High Court impugning the notice
and obtained an interim order as we have already noted. In
the meanwhile, the MHCC rejected the representation of the
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appellant and also filed an affidavit in the pending writ petition
in which it reiterated inter alia that the appellant’s hoardings
should be removed. The High Court found that the reasoning
of the MHCC was neither perverse nor illegal. Although initially
the High Court had granted an interim order restraining the
respondents from taking any steps to demolish the appellant’s
hoarding, ultimately by an order dated 21st July, 2005, the High
Court dismissed the writ petition. The interim order was
continued till 15th October, 2005, in order to enable the
appellant to test the correctness of the order of the High Court
before this Court.
The special leave petition filed by the appellant was
entertained by us on 7th October, 2005 when we issued notice
and also stayed the demolition of the hoardings till 18th
October, 2005.
On 18th October, 2005, the matter was heard extensively.
The appellant contended that the hoarding was situated within
the Mahalaxmi Precinct, which was not a Heritage Precinct.
Our attention was drawn to the various entries in the Schedule
to the Resolution dated 24th April, 1995 of the Urban
Development Department from which, according to the
appellant, it was amply clear that the Mahalaxmi Precinct was
listed as a "location" and not as a Heritage Precinct. It was also
submitted that the MHCC had filed an affidavit before the High
Court incorrectly construing the schedule. It was submitted that
the interpretation put by MHCC, which was accepted by the
High Court, in fact amounted to an amendment of the schedule
for which there was a specific procedure and the procedure
could not be circumvented by a process of interpretation. It was
stated that the there were other hoardings in the precinct, which
had not been proceeded against by the respondents and in fact
in one of the Special Leave Petitions (SLP \005 CC
No.4817/2004); (M/s. Mittle Brothers and Anr. Vs. State of
Maharashtra ) this Court had issued an interim order staying
the operation of the judgment and order of the High Court in so
far as it pertained to that case.
As we have accepted the submissions of the
respondents, it is not necessary to note their submissions in
support of the High Court’s decision. Perhaps we could have
merely dismissed the Special Leave Petition. But having regard
to the number of matters filed we were of the view that we
should give our reasons in support of the dismissal.
The Maharashtra Regional and Town Planning Act, 1966
(referred hereinafter as the ’Act’) provides for preparation,
submission and sanction of a development plan. Section 22 of
the Act which provides for the contents of the plan states that
the development plan shall provide for specified matters
including "preservation of features, structures or places of
historical, natural, architectural and scientific interest and
educational value and all heritage buildings and heritage
precincts".
In exercise of powers under Section 31(1) of the Act, the
State Government by Resolution dated 21st April, 1995
sanctioned Development Control Regulation No.67 along with
appendix VII-A as specified in the schedule appended to the
resolution and fixed 1st June, 1995 as the date on which the
Regulation 67 would come into force.
Regulation 67 broadly deals with the Conservation of
listed buildings, areas, structures and precincts of historical
and/ or aesthetical and /or architectural and/or cultural value
(heritage buildings and heritage precincts). Regulation 67 (2)
inter alia forbids any addition or alteration of buildings which
were either listed as heritage building or as listed heritage
precincts except with the prior written permission of the
Commissioner. Sub-regulation (2) of Regulation 67 further
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provides that " the Commissioner shall act on the advice of/in a
consultation with the Heritage Conservation Committee to be
appointed by the Government" provided that "in exceptional
cases for reasons to be recorded in writing the Commissioner
may overrule the recommendations of the Heritage
Conservation Committee".
The list of buildings and precincts to which the Regulation
was to apply are classified into three grades namely; Grade-I,
II or III. Heritage Grade I buildings/ precincts are those which
are of National Heritage Importance and are the prime land
marks of the city of Mumbai. No intervention either external or
internal except absolutely essential and minimal changes can
be affected in respect of such building/or precincts. Grade-II
heritage buildings/ precincts are of lower historical value or
aesthetical merit than Grade-I building/ precincts. As far as the
Grade-II buildings are concerned, internal changes were
generally be permitted but external changes would be
subjected to scrutiny. Grade-III precincts however are of lower
historical, aesthetical or sociological interest. External and
internal changes could be permitted in accordance with the
guidelines.
By a second Resolution dated 24th April, 1995 the State
Government sanctioned a list of buildings and precincts of
historical, aesthetical, architectural or cultural value as per the
scheduled annexed to that resolution. The schedule contains in
all 633 items as Heritage buildings or precincts with their
"location" described in the next column. Many of the items are
overlapping. For example item 633 pertains to Fort Precinct
which includes 14 sub precincts. Within those precincts there
are several buildings which have been separately listed
including the Bombay High Court at item 77. Again item 107
mentions "all buildings at Dadabhai Naoroji Road with a special
focus on Fort House" This is followed by items 108 to 127 each
of which relate to building/structure on the Dada Bhai Naoroji
Road. There is apparently no consistency in the way that the
list has been prepared. Not only is there overlapping but there
are, at times, inaccuracies. For example against item 442
under the heading, ’location’ in respect of several buildings
within the Mahalaxmi Precinct, the word appearing is "deleted".
If one were to read the list as it is, one would have to come to
the absurd conclusion that the location of the several buildings
mentioned in 442 was "deleted". Therefore a strict or literal
construction of the list would be misplaced.
It is true as far as Mahalaxmi Precinct is concerned,
although there is a separate map indicating the precinct along
with all other precincts, it does not appear under the column
"Nature of Monuments Building, Precincts etc." but in the
column headed "Location", against serial Nos. 441 and 442.
But locations have generally been indicated in the list with
reference to roads. A precinct cannot be a "location" since it is
really an area. In such circumstances it is reasonable to
ascertain the intention of the State Government from the map
annexed to the list. The fact that no map of any other location
has been given coupled with the fact that only maps of heritage
precincts have been given in our opinion would certainly
indicate that Mahalaxmi precinct is indeed a listed heritage
precinct against serial No.442 as mentioned in the map.
The list also refers to five precincts, namely Banganga
Precincts mentioned against Sl. No. 384, Opera House
Precincts, Sl. No.401, Gamdevi Precinct, Sl. No.432,
Mahalaxmi Precinct, Sl. No.442, Khotachiwadi Precinct, Sl.
No.508, Matharpakhadi Precinct, Sl. No.522 and Bandra
Precinct, Sl. No. 612. There is no other precinct which is
mentioned as a location.
The MHCC has taken into consideration the nature of the
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list, particularly the maps annexed thereto, to come to the
conclusion that the mentioning of Mahalaxmi Precinct under the
heading of "location" was clearly not the intention of the State
Government, but the intention was to treat the precinct along
with all other precincts of which maps are given as heritage
precincts. The High Court endorsed this opinion. We see no
reason to take a different view. Additionally the High Court has
noted that the MHCC had said that ever since June, 1995 when
the Regulation 67 came into force, all Development proposals
relating to buildings and properties situated in the Mahalaxmi
Precincts had been submitted to it for clearance. This again
indicates that Mahalaxmi Precinct is a Grade-III Heritage site.
As far as the case of M/s. Mittle Brothers (relied upon by
the appellants), is concerned, it appears from the order issued
by us in that matter on 4.6.2004, that this Court had stayed the
operation of the order of the High Court to the extent that it had
directed hoardings which are contained in Precincts proposed
to be added to the list of heritage buildings/ structures to be
demolished. In the present case there is no question of a
proposed inclusion of buildings/precincts in the heritage list.
There is also no question of amendment of the list
appended to the Resolution dated 24th April, 1995. The
intention of the State Government as has been culled out by the
MHCC and affirmed by the Bombay High Court and as found by
us is that the list as it exists includes Mahalaxmi Precinct as a
heritage precinct.
In the circumstances aforesaid, the appeals are
dismissed and the interim order is vacated. However the
appellant is given the liberty to demolish the hoardings itself
within a period of 10 days from today. If it fails to do so, it will be
open to the respondents to take steps pursuant to the
impugned notice. No order as to costs.