Full Judgment Text
2023:BHC-OS:1366-DB
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rrpillai
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO. 40 OF 2021
Asif Abdul Sattar
of Mumbai, adult, age 41 years, Indian
Inhabitant, Occupation-Business
Income about 4.90 lacs p.a. residing at
th
Room No. 32, 5 Floor, 29/31 Jainab
Manzil, Narayan Dhuru Marg,
Pydhonie, Mumbai-400 003
Pan Card No. AMFPM0313F
AADHAR Card No. 3280 1022 8263 … Petitioners
Versus
1. State of Maharashtra,
Urban Development Dept.
through Government Pleader,
Original Side, High Court, Bombay
2. Maharashtra Housing & Area
Development Authority,
having address at Griha Nirman
Bhavan, Bandra (E),
Mumbai-400 051
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3. The Chief Officer
Mumbai Building Repairs and
Reconstruction Board
having address at Griha Nirman
Bhavan, Bandra (E),
Mumbai-400 051
4. Municipal Corporation of Gr.
Mumbai, Established under
Mumbai Municipal Corporation
Act, 1888 and having address at
Mahapalika Bhawan, Fort,
Mumbai-400 001
5 Iqbal Singh Chahal
The Hon’ble Municipal
Commissioner of Municipal
Corporation of Gr. Bombay having
his Office at Mahapalika Bhawan,
Mahapalika Marg, Fort,
Mumbai-400 001
6 Vinod Chithore of Mumbai
Indian inhabitant & employee of
MCGM as Chief Engineer
(Development Plan) having his
office at Mahapalika Bhawan,
Mahapalika Marg, Fort,
Mumbai-400 001
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7 Rajendra Jadhav of Mumbai
Indian inhabitant & employee of
MCGM as Executive Engineer
(Buildings & Proposal) having his
office at Mahapalika Marg, Fort,
Mumbai-400 001
8 Nasir Adam Patel of Mumbai
Indian inhabitant & employee of
MCGM as Senior Engineer
(Buildings & Proposal)having his
office at Mahapalika Marg, Fort,
Mumbai-400 001
9 Abhay Bagayatkar of Mumbai
Indian inhabitant & employee of
MCGM as Assistant Engineer
(Buildings & Proposal) having
his office at Mahapalika Marg,
Fort, Mumbai-400 001
10. M/s. Rubberwala Housing &
Infrastructure Ltd.
a Company incorporated under
the Companies Act, 1956 having
its address at 382/B, Pavwala
Building, Ground Floor, Room No.
4, Grant Road, Mumbai-400 007
and
Rubberwala House, Dr. Nair Road,
Agripada, Mumbai-400 011 … Respondents
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Mr. Shishir Joshi a/w. Mr. Chetan Mhatre i/b. Ms. Priti Joshi
for the Petitioner.
Mr. Aspi Chinoy, Senior Advocate a/w. Mr. Joel Carlos and Ms.
Rupali Adhate for MCGM.
Mr. Anil Anturkar, Senior Counsel a/w. Mr. Ashish Kamat, Mr.
Ankit Lohia, Ms. Kausar Banatwala, Mr. Pratik Shah, Ms.
Neuty N. Thakkar, Ms. Paluck Bengali and Ms. Vanati Sadh i/b.
Mr. Tushar Goradia for Respondent no. 10.
Mr. P. G. Lad a/w. Ms. Sayali Apte and Ms. Shreya Shah for
Respondent nos. 2 and 3 – MHADA.
Mr. Himanshu Takke, AGP for the State of Maharashtra.
Mr. Ganesh Harne- Executive Engineer.
Mr. Jayant Walwatkar, Asstt. Engineer, DP, ‘D’ Ward.
Mr. Nasir Patel, Sub-Engineer, DP, ‘D’ Ward.
CORAM : S.V. GANGAPURWALA, ACJ. &
SANDEEP V. MARNE, J.
RESERVED ON : 10 FEBRUARY 2023
PRONOUNCED ON : 20 FEBRUARY 2023
JUDGMENT (Per Sandeep V. Marne, J) :-
A. T HE C HALLENGE
1. Petitioner, claiming to be a public spirited person, has
instituted the present Public Interest Litigation challenging
decision of Municipal Commissioner dated November 12, 2020
approving proposal for grant of FSI 3.00 under Regulation
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33(7) on gross plot area and FSI 1.00 under Regulation 33(18)
on net plot area, as well as all subsequent approvals including
approval dated August 8, 2021, in respect of redevelopment of
the property ‘Pila House-Platinum’ CS No. 990, Patthe Bapurao
Marg, Girgaum Division, Mumbai 400 007 (‘Project’). He
further seeks directions to the Municipal Corporation of
Greater Mumbai (‘MCGM’) to demolish part of the structure
which is in excess of cap/limit on the maximum permissible
FSI @ 4 on net plot area as per Regulation 33(18)(III) & (IV)
read with Regulation 30A(12) of Development Control and
Promotion Regulations for Greater Mumbai, 2034 (‘DCPR
2034’). He further seeks direction to MHADA to acquire and
possess the surplus built-up area of 664.31 sq.mtrs and
fungible FSI thereon for appropriation thereof to the dis-
housed occupants of cessed buildings. He further seeks action
against respondent nos. 5 to 9 (Municipal Commissioner, Chief
Engineer & other officials) under the provisions of the Indian
Penal Code 1860 and the Prevention of Corruption Act 1988
and initiation of disciplinary proceedings for allotting FSI in
excess of cap/limit on maximum permissible FSI @ 4.00 on net
plot area.
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B. F ACTS
A brief narration of facts, as a prologue to our judgment, would
be necessary. For better understanding of facts, it would also
be necessary to briefly explain some of the concepts by making
reference to few provisions of DCPR, which we have done.
B.1 B ACKGROUND F OR F ILING PIL
2. Petitioner carries on business of selling sweets as a
partner in the shop ‘Suleman Usman Mithaiwala’ and stays in
the vicinity of the project and is a regular passer-by of the area
for his business. He noticed an old building popularly known as
‘Pila House’ being demolished in the year 2013–14 for
redevelopment. As redevelopment was taking several years, he
made enquiries with MCGM when he came across the fact of
several occupants not being certified as eligible for
rehabilitation and not being paid transit rent- compensation
for a long period. He therefore sought recourse under the Right
to Information Act, 2005 and procured various records
relating to the project from offices of MCGM in August 2021.
Some of the documents were also available from the website of
MCGM. He then consulted an architect, who on promise of
anonymity, provided information to about the relevant laws,
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sanctions, approvals and concessions sought and/or granted in
respect of the project.
B.2 C ESSED B UILDINGS
3. The building ‘Pila House’ was a cessed building. Category
A cessed buildings are those which are constructed prior to
1940 and have outlived their life. Chapter VIII of Maharashtra
Housing and Area Development Act, 1976 (‘Act of 1976’),
provides for repairs, reconstruction, etc of cessed buildings
through Mumbai Repairs & Reconstruction Board (MBRRB).
Under the Act of 1976, certain area in a reconstructed building
is required to be provided to MBRRB for housing of occupiers of
cessed buildings which cannot be reconstructed. In the present
case, MBRRB has issued No Objection Certificate (NOC) dated
April 23, 2010 to the project inter alia stating that the exact
surplus area shall be determined after receipt of plans
approved by MCGM. The NOC was revised by MBRRB on
September 24, 2012 directing that surplus area of 664.31 Sq.
mtrs shall have to be surrendered to MHADA, after
ascertainment from approved plans.
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B.3 R ELEVANT P ROVISIONS O F D EVELOPMENT C ONTROL
R EGULATIONS
4. Regulation 32 of the Development Control Regulations of
the Greater Mumbai, 1991 (DCR 1991) permitted zonal FSI of
1.33 for Island City of Mumbai. Regulation 33 (7) provided for
redevelopment of cessed buildings and permitted higher FSI
for rehousing of occupiers of cessed buildings than the zonal
FSI. As per amendment effected on May 21, 2011, FSI of 3.0 is
permissible under DCR 33(7). Regulation 33 (24) provided for
additional incentive FSI for multi-storey Public Parking Lot
(‘PPL’) to be used on the same plot within the overall cap/limit
of total maximum permissible FSI.
5. DCPR 2034 were notified w.e.f. May 8, 2018. Regulation
9(6)(b) permits applicability of DCPR 2034 to ongoing
partially completed works. The scheme of incentive FSI for
redevelopment of cessed building is continued under the DCPR-
2034 as Regulation 33 (7). The scheme of incentive FSI for
PPL is also continued with change in the number of Regulation
as 33 (18). Under Regulation 30 (A)(12), development of plots
under a combination of various schemes is permissible
provided that the FSI does not exceed the total permissible FSI
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under Regulations. The cap/limit of total permissible FSI of
4.00 is retained in DCPR 2034.
B.4 C ONCEPT OF G ROSS P LOT A REA & N ET P LOT A REA
6. The gross plot area is the actual size of the plot taken up
for development, in the present case, the area on which the
cessed building was situated. Net plot area is the reduced area
on account of mandatory handing over of some of the areas to
MCGM. So far as present case is concerned, the gross plot area
is reduced on account of two mandatory provisions relating to
road set back area and amenity open space area. Without
delving further into the exact provisions for handing over of
set-back area and amenity area (since there is no dispute on
this), suffice it to state that the figures of gross and net plot
area in the present case are as under:
Gross Plot Area 4675.62 sq.mtr
(Less) Set Back Area 390.18 sq. mtr
(Less) Amenity Open Space Area 74.99 sq.mtr
Net Plot Area 4210.45 sq.mtr
B.5 P ROCESSING O F P ROPOSALS O F R ESPONDENT N O . 10
7. Respondent No. 10 is a developer, who submitted
proposal for redevelopment of ‘Pila House Plot’ under
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Regulation 33(7) of DCR 1991 sometime in 2010. As stated
above, MBRRB issued NOCs from time to time for such
redevelopment. Intimation of Disapproval and Commencement
Certificate were issued by the MCGM in 2013 approving the
proposal for redevelopment under Regulation 33(7) of DCR,
1991. In the year 2017, Respondent No. 10 applied for
amendment of development permission for the purpose of
availing benefit of additional incentive FSI by proposing to
construct multi-storied PPL under Regulation 33 (24) of DCR
1991. By letter dated April 7, 2017, Respondent No. 10
informed MCGM that as per the then prevailing practice, FSI
cap @ 4.00 was being applied on net plot area and that the
same needed to be applied on gross plot area so that MCGM can
get more public parking spaces. As per the details given in
Petition and various file notings attached, it appears that
various hierarchical officers of MCGM approved file notings for
permitting FSI @ 4.00 on gross plot area. The then Municipal
Commissioner (Mr. Ajoy Mehta) however returned the
proposal vide decision dated May 26, 2017. Though he did not
comment specifically on permissibility of computing maximum
FSI on gross plot area, he remarked that set back area needed
to be deducted from calculation of 4 FSI cap.
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8. After coming into effect of DCPR 2034, Respondent No.
10 submitted fresh proposal for availing FSI 3.00 under
Regulation 33(7) on gross plot area and FSI 1.00 under
Regulation 33(18) on net plot area. When the proposal reached
succeeding Municipal Commissioner (Mr. Pravin Pardeshi), it
was returned on June 6, 2019 on various counts with a specific
remark that ‘FSI permissible shall be on Net Plot Area’.
9. Respondent No. 10 thereafter addressed letter dated
August 10, 2019 to MCGM clarifying that while computing FSI
3.00 on gross plot area under Regulation 33(7) and FSI 1.00
on net plot area under Regulation 33(18), the set-back area is
already deducted and the same was already approved by the
then Municipal Commissioner. The file was again put up before
the then Municipal Commissioner (Mr. Pravin Pardeshi) who
once again returned it vide his decision dated November 12,
2019 directing Chief Engineer (Vigilance) to examine lapses in
processing the proposal. This is how, according to Petitioner,
the proposal for permitting FSI 3.00 under Regulation 33(7)
on gross plot area was thrice rejected by the Municipal
Commissioner on June 26, 2017, June 6, 2019 and November
12, 2019.
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10. Petitioner alleges that after appointment of Respondent
No. 5 (Mr. Iqbal Chahal) as the Municipal Commissioner on
May 8, 2020, Respondent No. 10 once again addressed letter
dated July 17, 2020 claiming FSI 3.00 on gross plot area and
FSI of 1.00 on Net plot area, this time by deducting the set-back
area and amenity area. Petitioner further alleges that the new
Municipal Commissioner, by disregarding the earlier refusals
by his predecessors, approved the proposal on November 12,
2020 without assigning any reasons. On the basis of the
approval granted by Respondent No. 5 on November 12, 2020,
Respondent No. 10 sought full amendment of plans with FSI
3.00 on gross plot area under Regulation 33(7) and FSI 1.00
on net plot area under Regulation 33 (18) and further
requested for fungible FSI for rehabilitation component and
also for sale component. Such amended plans came to be
approved on August 8, 2021. The decision of Municipal
Commissioner dated November 12, 2020 and approval of plans
on August 8, 2021 are subject matter of challenge in the
present petition.
B.6 Allegation of Excess FSI
11. In the manner indicated above, petitioner alleges grant
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of excess FSI by MCGM in favour of respondent no. 10 for the
project. Allegation is premised on an assertion that the total
FSI for combination of various incentive schemes can never
exceed the cap/limit of 4.00 on net plot area. However on
account of grant of incentive FSI of 3.00 under DCPR 33(7) for
redevelopment of cessed building on gross plot area and
incentive FSI of 1.00 for multi-storied PPL on net plot area
under DCPR 33 (18), the total FSI granted exceeds the
cap/limit of maximum permissible FSI of 4.00 under
Regulation 33(18)(III) & (IV) read with Regulation 30A(12). It
is Petitioner’s contention that both incentive FSI for
redevelopment of cessed building [33(7)] and PPL [33(18)]
must be calculated on net plot area so that the total
permissible FSI does not exceed 4.00. Petitioner alleges that on
multiple occasions in the past, the successive Municipal
Commissioners had issued specific directions to restrict the
combined incentive FSI on net plot area. However Respondent
No. 5 (incumbent Municipal Commissioner), in connivance of
Respondent Nos. 6 (City Engineer), 7 (Executive Engineer-
Buildings & Proposal), 8 (Senior Engineer- Buildings &
Proposal) and 9 (Assistant Engineer- Buildings & Proposal)
overruled the decisions of earlier Municipal Commissioners
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and illegally approved proposal on November 12, 2020 for
grant of FSI under Regulation 33 (7) on gross plot area and
FSI under Regulation 33 (18) on net plot area, resulting in a
situation where the total FSI for the project has crossed the
limit of maximum permissible FSI 4.00. That as against
permissible FSI of 22,736.43 sq. mts, Respondent No. 10 has
illegally been granted FSI of 24,620.37 sq. mts. This is how
additional FSI of 1883.94 sq mts is alleged to have been
illegally offered to Respondent No. 10. That after adding
fungible FSI @ 35%, illegality is further compounded.
Petitioner has levelled serious allegations of corrupt practices
against Respondent Nos. 5 to 9.
B.7 I SSUE OF S URPLUS A REA
12. As observed above, the exact surplus area to be
surrendered to MHADA was to be ascertained after approval of
final plans by MCGM and the NOCs issued by MBRRB were thus
conditional. Serious allegations are levelled by Petitioner in
Para 72 to 87 of the Petition alleging that Respondent No. 10
was in the process of wriggling out of its obligation to hand
over surplus area to MHADA by engineering various methods.
It is contended that handing over of such surplus area is
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mandatory for the purpose of rehousing of occupants of cessed
buildings which cannot be redeveloped. It is alleged that there
are as many as 29,723 occupants of cessed buildings who are
dis-housed due to collapse of/or unsafe buildings. We do not
find it necessary to record events and contentions relating to
handing over of surplus area in view of the readiness
expressed by Respondent No. 10 to hand over the requisite
surplus area and also in the light of the affidavit dated
February 10, 2023 tendered by MHADA confirming that 103
flats have been handed over by Respondent No. 10 to MHADA
and that the surplus built-up area to be handed over to MBRRB
is NIL.
C. O RDER P ASSED B Y T HIS C OURT O N D ECEMBER 5, 2022
13. Having briefly narrated the facts of the case and before
proceeding ahead, it would be apt to make a reference to the
Order passed by this Court on December 5, 2022 after taking
into consideration the preliminary objections raised by MCGM
and Respondent No. 10 about maintainability of the present
petition and lack of bonafides on his part. The Order reads
thus:
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1. Upon demolition of an old building, viz., ‘Pila Building’,
large-scale redevelopment took place upon obtaining
permission from the Municipal Corporation of Greater
Mumbai, so much so that construction up to the 17th floors of
three separate buildings had been completed. It is at that
stage, this PIL petition came to be instituted on 16th
November, 2021. The petitioner alleges that a decision dated
12th November, 2020 (Exhibit-T) was taken by the Municipal
Commissioner, Mr. Iqbal Singh Chahal (respondent no.5),
permitting 3 (three) FSI on Gross Plot Area under Regulation
33(7) of the Development Control & Promotion Regulations,
2034 (hereafter “the DCPR-2034”, for short) and 1 (one) FSI
on Net Plot Area under Regulation 33(18) thereof without
assigning any reason whatsoever and by completely ignoring
the earlier orders dated 26th May, 2017, 6th June, 2019 and
12th November, 2019 made by his predecessor Municipal
Commissioners. It is claimed that such decision is arbitrary,
perverse, illegal and mala fide.
2. In paragraphs 8 and 9 of the petition, the petitioner
describes himself as a regular passerby of the area for his
business purposes. While redevelopment was taking some
time, he came to learn from certain occupants of Pila Building
that they were not certified as eligible for rehabilitation by the
Chief Officer, Mumbai Building Repairs and Reconstruction
Board (respondent no.3) and also that certain occupants, not
declared eligible though eligible, were not even paid transit
rent compensation for a long period. This triggered inquiries
by the petitioner resulting in he obtaining information of
brazen violation of the provisions of the DCPR-2034 by the
respondent no.5 while granting permission for redevelopment
to the developer (respondent no.10).
3. In paragraph 69 of the PIL petition, serious allegations
have been levelled against the respondent no.5 by the
petitioner of accepting illegal gratification and that thereby he
has committed offence under the Prevention of Corruption
Act, 1988 and the Indian Penal Code. Despite being impleaded
as respondent no.5 by name, Mr. Iqbal Singh Chahal has not
countered such serious allegations levelled against him in
paragraph 69 of the PIL petition by filing a counter affidavit.
4. We have heard Mr. Chinoy, learned senior advocate
appearing for the Municipal Corporation of Greater Mumbai
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and Mr. Samdani, learned senior advocate appearing for the
respondent no.10, to raise multiple objections to the
maintainability of the PIL petition. Not only is the bona fide of
the petitioner questioned but also, gross delay and laches in
approaching the Court is raised as a ground for dismissing the
petition. Mr. Samdani by referring to a further affidavit filed by
the respondent no.10, indicates the manner in which
construction has progressed over the years since the
basement work started on 5th November, 2017. In addition, he
has raised the point of creation of third-party rights in favour
of interested buyers of the under- construction buildings.
However, we record Mr. Samdani’s statement that eventually if
it is found that the respondent no.10 has to give up certain
additional area in favour of the respondent no.3, it is willing to
do so.
5. In several decisions, the Supreme Court has cautioned the
High Courts not to entertain any petition styled as a public
interest litigation without testing the bona fides of the litigant
approaching the Court. The statements made in paragraphs 8
and 9 of the PIL petition give us reason to suspect that the
petitioner might have been set up by some of the occupants
who are aggrieved by reason of not being certified as eligible
occupants for rehabilitation as well as for receiving transit
rent compensation. Also, the allegations levelled against the
respondent no.5 would have to be proved by the petitioner
should there be a challenge to the veracity thereof by the
respondent no.5 and the petitioner is put to strict proof
thereof.
6. We, therefore, wish to put the petitioner on terms in
exercise of power conferred by rule 7A of the Bombay High
Court Public Interest Litigation Rules, 2010. The petitioner is
required to deposit a security amount of Rs.2,00,000/-
(Rupees Two Lakh Only) within a period of a fortnight from
date. Once such deposit is made, the petitioner shall inform the
learned advocate on record for the Municipal Corporation.
Thereafter, the respondent no.5 shall have time till 9th
January, 2023 to file his counter affidavit. If counter affidavit
by the respondent no. 5 is filed, the petitioner may file his
rejoinder affidavit thereto by 14th January, 2023.
7. Should the petitioner fail to succeed in his claim, the
security deposit shall stand forfeited.
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8. In the event of the security deposit being made, the PIL
petition shall be listed on 16th January, 2023, ‘high on board’,
for further consideration. If the deposit is not made, the PIL
petition shall stand dismissed without reference to the Bench.
In pursuance of the Order passed by this Court on December 5,
2022, Petitioner has deposited amount of Rs. 2,00,000/- on
December 8, 2022.
UBMISSIONS
D. S
14. We have heard Mr. Shishir Joshi the learned counsel for
Petitioner, Mr. Aspi Chinoy the learned Senior Advocate for
MCGM, Mr. Anil Anturkar learned Senior Advocate for
Respondent No. 10, Mr. P. G. Lad the learned counsel for
MHADA and learned AGP for State Government. Submissions
made by Mr. Joshi, Mr. Chinoy and Mr. Anturkar are briefly
captured below:
UBMISSIONS N EHALF F ETITIONER
D.1 S O B O P
15. Appearing for Petitioner, Mr Joshi the learned counsel
would first meet the objection about maintainability of PIL
raised by MCGM and Respondent No. 10. He would submit that
Petitioner, being a resident at nearby vicinity of the project, is
disturbed by the fact that excess construction than the one
permissible under DCPR is being put up by Respondent No. 10
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thereby completely disturbing the town planning norms. That
other developers would cite the example of Respondent No. 10
and demand additional FSI in a similar manner. That if such
constructions are permitted, it will result in putting pressure
on infrastructure in Girgaum area, which is already congested.
That the object of Petitioner behind filing the present Petition
is just to ensure that no developer is permitted to construct in
excess of permissible FSI under the DCPR. He would therefore
urge that the present Petition is filed for bonafide purposes in
larger public interest.
16. On merits, Mr. Joshi would take us through various
provisions of DCR 1991 and DCPR 2034. He would submit that
the scheme of DCR 1991 or that of DCPR 2034 is such that the
overall FSI under various schemes combined together can
never exceed 4.00 on net plot area. That the net plot area is
the one on which the development is to be carried out and
therefore the area of gross plot (which is not even available for
development) cannot be taken into consideration for
computation of FSI under any scheme. That permitting FSI
3.00 on gross plot area under Regulation 33 (7) would result
in breach of cap of maximum permissible FSI under Regulation
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33 (18). That when there is a specific prohibition under
Regulation 33(18) on crossing the cap of FSI 4.00, MCGM
cannot offer excess FSI to Respondent No. 10. Mr. Joshi would
highlight the fact that the proposal of Respondent No. 10 for
FSI on gross plot area was thrice rejected by the previous
Municipal Commissioners on May 26, 2017, June 6, 2019 and
November 12, 2019 and that the incumbent Municipal
Commissioner has erroneously ignored those rejections while
sanctioning the proposal on November 12, 2020 without
recording a single reason.
17. Referring to provisions of Regulation 6(b), Mr. Joshi
would contend that even the discretionary powers in cases
involving demonstrable hardship cannot be used in a manner
which would result in enlargement of permissible FSI.
18. Mr. Joshi would then address us on the second aspect of
avoidance on the part of Respondent No. 10 in handing over
the surplus area. He made detailed submissions on
requirement of handing over surplus area and how Respondent
No. 10 has been avoiding to hand over the same. However as
observed above in view of statements made on behalf of
Respondent No. 10 about willingness to hand over the requisite
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surplus area, so also affidavit of MHADA certifying that the
surplus area to be handed over to MBRRB is ‘Nil’, we are not
recording the submissions of Mr. Joshi on this aspect.
19. In support of his contentions, Mr. Joshi would rely upon
following judgments:
1
(a) Tata Cellular vs. Union of India
2
(b) BVG India Ltd. vs. State of Maharashtra & Ors.
(c) Supertech Limited vs. Emerald Court Owner Resident
3
Welfare Association & Ors.
(d) Bombay Dyeing & Manufacturing Co. Ltd. vs. Bombay
4
Environment Action Group & Co.
(e) Kerala State Coastal Zone Management Authority vs.
5
State of Kerala Maradu Municipality & Ors.
(f) Pune Municipal Corporation vs. Promoters & Builders
6
Association
(g) Rajendra Thacker & Ors. vs. Municipal Corporation of
7
Greater Mumbai and Ors.
(h) Sunbeam Enterprises vs. Municipal Corporation of
8
Greater Mumbai and Ors.
(i) Asian Resurfacing of Road Agency Pvt. Ltd. & Ors. vs.
9
Central Bureau of Investigation.
1 1994 (6) SCC 641
2 2021 DGLS(Bom.) 392.
3 2021 DGLS (SC) 405
4 2006 AIR (scw) 1392
5 2019 (&) SCC 248
6 2004 (10) SCC 796
7 2004 (106) Bom L.R. 598
8 2019 DGLS (Bom.) 508
9 2018 (16) SCC 299
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10
(j) Noida Entrepreneurs Association vs. Noida & Ors.
(k) Shankara Co-op Housing Society Ltd. vs. M. Prabhakar &
11
Ors.
12
(l) Uday Gagan Properties Limited vs. Sant Singh & Ors.
(m) Secretary, Ministry of Chemicals & Fertilizers,
13
Government of India vs. Cipla Limited and Ors.
(n) Nanasaheb Vasantrao Jadhav vs. State of Maharashtra
14
and Ors.
15
(o) State of Odisa vs. Pratima Mohanty
D.2 S UBMISSIONS ON B EHALF OF MCGM
20. Mr. Chinoy, the learned Senior Advocate appearing for
MCGM would oppose the petition and support the decision of
the Municipal Commissioner. He would rely upon provisions of
Regulation 33(7) (1) which specifically permits grant of FSI on
gross plot area. He would submit that no departure is made in
the present case by permitting FSI 3.00 under Regulation
33(7) on gross plot area and FSI 1.00 under Regulation 33(18)
on net plot area, as the decision is consistent with generality of
past approvals in all cases. That both before and after the
decisions of earlier Municipal Commissioners dated May 26,
2017 and June 6, 2019, the very same Municipal
10 2011 (6) SCC 508
11 2011 (3) SCC 569
12 2016 (11) SCC 378
13 2003 (7) SCC 1
14 2022 DGLS (Bom.) 280
15 2021 DGLS (SC) 942
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Commissioners in all other cases of combined development
under Regulations 33(7) and 33(12)/33(18) have permitted
FSI 3.00 on gross plot area and FSI 1.00 on net plot area by
passing reasoned orders. That Petitioner has selectively
chosen the present case, for reasons which are not bonafide.
That the decisions of earlier Municipal Commissioners taken
on May 26, 2017 and June 6, 2019 putting cap of FSI 4.00 on
net plot area were inconsistent with generality of decisions
taken by them in other cases. He would highlight decisions of
those Municipal Commissioners in other cases where they
permitted FSI 3.00 on gross plot area and FSI 1.00 on net plot
area. He would submit that in a similar situation where there
was combination of schemes under Regulations 33(7) and
33(12), Municipal Corporation had sought clarification of the
State Government and by exercising powers under provisions
of Regulation 4(3), the State Government had issued
clarification on April 13, 2022. As per the clarification, while
permitting combination of incentive FSI claimed under
Regulations 33(12) and 33(7), FSI 3.00 can be on gross plot
area whereas the rest of the FSI 1 can be allowed on net plot
area.
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21. Mr. Chinoy would then demonstrate as to how putting
cap/limit of FSI 4.00 on net plot area would defeat the entire
objective behind providing incentive FSI for constructing
multi-storied PPL. That such a cap results in the developer
receiving lesser FSI than permissible incentive FSI of 1.00 for
having constructed public parking building. That if developers
are allowed lesser FSI than permissible incentive FSI of 1.00,
they would not come forward to construct public parking
buildings, thereby defeating the entire objective behind
offering incentive FSI for public parking schemes.
D.3 S UBMISSIONS ON B EHALF OF R ESPONDENT N O . 10
22. Mr. Anturkar, the learned Senior Advocate appearing for
Respondent No. 10 would also oppose the petition raising
preliminary objection of delay and lack of bonafides on part of
the Petitioner. He would submit that grant of FSI 3.00 under
Regulation 33(7) on gross plot area and FSI 1.00 under
Regulation 33(18) on net plot area is perfectly in order and
there is nothing in the DCPR which prohibits doing so. Mr.
Anturkar would take us through the provisions of DCPR 2034.
He would submit that under DCR 30(12) combination of
various incentives schemes is permissible, which also includes
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combination of scheme of redevelopment of cessed building in
Island City under Regulation 33(7) with the scheme of multi
storied PPL under Regulation 33(18). Referring to the
clarification issued by the State Government in a similar case,
he would submit that even though the clarification is
subsequent to the decision of the Municipal Commissioner, the
directives of the State Government only clarifies which was
always there. That the clarification of the State Government is
not in the nature of directions under section 154 of the
Maharashtra Regional and Town Planning Act, 1966 (MRTP
Act) and would therefore apply to the present case as well.
23. Mr. Anturkar would then submit that no special
dispensation is given to respondent no. 10 in the present case
as same formula has been applied in cases of Ameen
Ganpatrao, Architect and Marine Drive Hospitality. Mr.
Anturkar would further submit that it is well settled law that if
more than one interpretations are possible, the one that makes
the scheme of Regulations workable must be accepted.
24. Lastly Mr. Anturkar would submit that so far as handing
over of surplus area is concerned MHADA has clarified in its
additional affidavit that after handing over of 103 flats to the
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MBRRB, the surplus built up area to be surrendered to MBRRB
is Nil. In support of his contentions Mr. Anturkar would rely on
the following judgments:
(a) K.P.Varghese vs. Income Tax Officer, Ernakulam and
16
Anr.
17
(b) Sarthi Seva Sangh & Anr. vs. MCGM & Ors.
(c) R & M Trust vs. Koramangala Resident Vigilance Group
18
and Ors.
D.4. S UBMISSIONS O F B EHALF O F P ETITIONER I N R EJOINDER
25. In rejoinder, Mr. Joshi would contend that if law
prohibits something, concept of “workability” becomes
irrelevant and that even in an ambiguous situation, specific
provision of law must be followed without any exception. He
would further refer to the definition of FSI under section 2 (61)
of the DCPR 2034 in support of his contention that since FSI is
the quotient of the ratio of plot area, FSI cannot be segregated.
All types of FSI must be computed on the plot area available for
development. In so far as the clarification issued by the Urban
Development Department of the State Government is
concerned Mr. Joshi would contend that the clarification of
Urban Development Department would tantamount to
16 (1981) 4 SCC 173
17 PIL No. 43 of 2022
18 (2005) 3 SCC 91
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provisions of additional FSI which is in violation of the DCPR as
well as provisions of Section 37 of the MRTP Act. That without
resorting to modification of development plan under section 37
of the MRTP Act such additional FSI cannot be conferred.
F. R EASONS AND A NALYSIS
F.1 P RELIMINARY O BJECTIONS
26. Both MCGM and respondent no. 10 have raised objections
about maintainability of the present PIL filed by petitioner both
on the ground of delay in filing the same as well as lack of
bonafides on his part. We first deal with objection of delay. The
objection is essentially referable to the factum of substantial
progress of construction at the site at the time of filing of the
PIL. However, what is challenged in the present petition is the
approval dated November 12, 2020 granted by the Municipal
Commissioner. The Petitioner had no grievance about approval
of plans as well as construction put up at the site prior to
November 12, 2020. His grievance essentially relates to
Municipal Commissioner’s approval dated November 12, 2020,
which according to the Petitioner, has resulted in grant of
excessive FSI of 1883.94 sq.mtrs. plus fungible FSI. The
amended plans for construction based on impugned approval
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were sanctioned on August 8, 2021. Thus the cause of action
for filing the present petition arose on November 12, 2020 and
August 8, 2021 and present petition filed on 15 November
2021 cannot be said to suffer from delay or latches. We
therefore repel the objection of delay. Since there is no delay in
filing the petition, reliance of Mr Anturkar on judgment in R &
M Trust (supra) is misplaced.
27. So far as the second objection about lack of bonafides on
the part of Petitioner is concerned, we propose to deal with the
same at latter part of the judgment after discussing merits.
Also of relevance is the fact that this court has already passed
order dated December 5, 2022 directing payment of security
deposit of Rs. 2,00,000/- as a condition precedent for
entertaining the PIL. Petitioner has deposited the amount and
therefore we would proceed to first deal with merits of
contentions raised by Petitioner.
F. 2 P ERMISSIBILITY OF C OMPUTATION OF FSI ON G ROSS P LOT A REA
28. A short issue that is involved in the present petition is
whether FSI under Regulation 33(7) can be allowed on gross
plot area while restricting the FSI under DCPR 33(18) on net
plot area. Petitioner’s contention is that by allowing FSI under
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DCPR 33(7) on gross plot area, the cap/limit of maximum
permissible FSI 4.00 is breached and that respondent no. 10 is
allowed excessive FSI beyond the cap/limit of FSI 4.00. We
have already dealt with the concept of gross plot area and net
plot area. As observed above, on account of handing over of two
areas viz. (i) road set back area and (ii) amenity space area,
the size of the gross plot area on which the building ‘Pila
House” was located stands reduced and what is actually
available for development is only net plot area. The gross plot
area of the plot was originally 4675.62 sq. mtrs and after
deducting set back area of 319.18 sq. mtr and amenity open
space area of 74.99 sq. mtr, the net plot area reduced to
4 210.45 sq. mtr. What is essentially done in the present case is,
FSI 3.00 under Regulation 33(7) is granted on gross plot area
of 4675.62 sq. mtrs, whereas the FSI 1.00 under Regulation
33(18) is granted on plot area of 4210.45 sq. mtrs.
29. We must observe at the very outset that DCR 1991 or
DCPR 2034 do not specifically provide that maximum
permissible FSI of 4.00 must be calculated on net plot area
alone. For the sake of convenience, we reproduce DCPR 33 (18)
governing multi-storeyed PPL which seeks to put cap/limit of
maximum permissible FSI @ 4:
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Reg. 33(18) Multi Storey Public Parking Lot (PPL) – of
DCPR-2034 provide for Cap on Maximum Permissible FSI
of 4.00 :-
(III) The incentive FSI given on this account will be over
& above the Zonal (basic) FSI permissible under any other
provisions of DCPR. This incentive FSI shall allowed to be
used on the same plot in conformity with DCPR/DP, within
the overall cap/ limit of the total maximum permissible
FSI as given at (VII) below.
(IV) The incentive FSI permissible under this Regulation
against BUA of the PPL, shall be 50% of the BUA of the
PPL, shall be 50% of the BUA of the PPL, such that the
total permissible FSI including the incentive FSI under
this regulation does not exceed as detailed below :
Plot Area Maximum Permissible FSI
Up TO 2000 sq.m 3.00
Above 2000 sq.m 4.00
30. Regulation 30(A)12) of the DCPR 2034 reads thus :
“The Development of plots under combination of various
regulations shall be permissible, but the maximum
permissible FSI on plot shall not exceed the permissible
FSI limit prescribed in respective regulations”.
31. It is on the basis of provisions of Regulation 33(18) (III)
and (IV) as well as Regulation 30(A)(12) of the DCPR 2034
that petitioner alleges violation of FSI norms by asserting that
excessive FSI of 1883.94 sq.mtrs is extended by MCGM to
respondent no. 10. However, both Regulation 33(18) (III) and
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(IV) as well as Regulation 30 (A) (12) do not provide that
maximum permissible FSI must be calculated on net plot area
alone. On the contrary, Regulation 33(7) specifically provides
for grant of incentive FSI on gross plot area. Relevant
provision of Regulation 33(7) reads thus:
33(7) Reconstruction or redevelopment of cessed buildings
in the Island City by Co-operative Housing Societies or of old
buildings belonging to the Corporation:
(1) For reconstruction/redevelopment to be undertaken by
same or different landlords or Co-operative societies of land-
lords and Cooperative Housing Societies (existing or pro-
posed) of existing tenants or by Co-op. Housing Societies of
landlords and/or occupiers of a cessed building existing prior
to 30/9/1969 in Island City, which attracts the provisions of
MHAD Act, 1976 and for reconstruction/redevelopment of
the buildings of Corporation existing prior to 30.09.1969, FSI
shall be 3.00 on the gross plot area or FSI required for reha-
bilitation of existing tenants plus incentive FSI as specified in
sr. no 5(a) below whichever is more.
32. Thus there is specific provision in Regulation 33(7) for
computation of incentive FSI 3.00 on gross plot area. As
against this, Regulation 37 (18) is silent about computation of
incentive FSI for construction of PPL on gross or net plot area.
This is the reason why Municipal Commissioner has approved
grant of FSI 3.00 under Regulation 33(7) on gross plot area
while restricting FSI 1.00 under Regulation 33(18) on net plot
area.
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F. 3 A NOMALOUS S ITUATION A RISING O UT OF R ESTRICTING FSI ON
ET LOT REA
N P A
33. It has been the contention of MCGM that computation of
total FSI under combined schemes of Regulation 33(7) and
33(18) on net plot area would result in a situation where a
developer does not actually get to utilise the entire permissible
incentive FSI of 1.00 under Regulation 33(18) for construction
and handing over multistorey PPL to MCGM. That developers
incur huge costs towards construction of such multistorey PPL
and if they are denied whole of permissible incentive FSI 1.00,
they would be disinterested in building multistorey PPL.
34. Both Mr. Chinoy and Mr. Anturkar have demonstrated
this resultant anomaly, which would be clear from the
following comparative chart:
Illustration A
Illustration B
(As desired by
(As granted by
Petitioner)
MCGM)
[Sq mtrs]
Gross Plot Area 100 100
Area handed over to MCGM 20 20
Net Plot Area 80 80
FSI 3.00 under Reg 33(7) 240 (on net
[Sq mtrs]
300 (on gross
plot area)
plot area)
FSI 1.00 under Reg. 33(18) 80 (on net plot
80 (on net plot
area)
area)
Total FSI 320 380
FSI actually permitted for
constructing PPL
20 80
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Thus, as against entitlement of FSI of 80 sq. mtrs (FSI 1.00 on
net plot area of 80 sq. mtrs), the developer may end up in
actually receiving additional FSI of just 20 sq. mtrs for
constructing multistorey PPL if contention of Petitioner is to be
accepted.
35. It is on account of the anomaly demonstrated above that
both MCGM as well as State Government appear to have taken
a stand that with a view to enable the developer to actually and
fully utilise the entire permissible incentive FSI of 1.00 under
Regulation 33(18), the incentive FSI under Regulation 33(7) is
required to be computed on the gross plot area.
LLEGATION OF EPARTURE ADE BY UNICIPAL
F.4 A D M M
C OMMISSIONER
36. Now we turn to Petitioner’s allegation that the incumbent
Municipal Commissioner (Respondent no. 5) has extended a
favour to respondent no. 10 for extraneous considerations by
deliberately ignoring/overreaching earlier three decisions of
his predecessors rejecting the same proposal on May 26, 2017,
June 6, 2019 and November 12, 2019. We have already
referred to the decisions of the earlier Municipal Commissioner
Mr. Ajoy Mehta dated May 26, 2017 and Mr. Pravin Pardeshi
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dated June 6, 2019 and November 12, 2019. It is contended on
behalf of MCGM that the said decisions are in fact departures
from the decisions taken by the very same officers in other
proposals, both before and after their decisions in present case.
This is demonstrated by the MCGM in the form of the affidavit
of respondent no. 6 which reads thus:
(a) In the case of a joint development proposal under
DCR 33(7) and DCR 33(24) at Bhavani Shankar Rd
Mahim, the Chief Engineer had suggested that the question
whether the Cap of 4 FSI was to be computed on Net plot
area, or whether FSI of 4.00 should provide for FSI 3.00 on
gross plot area under DCR 33(7) and FSI 1.00 on net plot
area under DCR 33(24) or calculating FSI 4.0 on gross
plot area without any deduction for R.G., should be
referred to the Govt for clarification. The then Municipal
Commissioner Mr. Ajoy Mehta had endorsed his
remarks/decision thereon dated 12.09.2016 - ‘In this case
the basic proposal is under DCR 33(7) wherein the FSI
permissible is on gross plot area. Further the non cess
component is also within 25% of plot area and is also
eligible. Hence the FSI shall be allowed without deduction
of 15% R.G. Since the basic proposal is eligible for
computation of FSI on gross plot area without deduction of
R.G. the plot area for computation of FSI 4 in case of
33(24) shall be considered on gross plot area. Hence there
is no need to refer matter to U.D. for clarification of any
issue which is crystal clear’.
(b) In the present case No. EB/3820/DA the then
Deputy Chief Engineer and Chief Engineer had put up note
that the FSI should be computed at 3.00 on gross plot area
under DCR 33(7) i.e. 14,026.86 sq.mtrs and 1.00 on gross
plot area under DCR 33(24) i.e. 4765.62 sq. mtrs resulting
in a total FSI of 18,702.48 sq. mtrs which was less than
4.00 computed on the gross plot area. The Municipal
Commissioner had however noted on 26.5.2017 that “the
PPL Permissible in DCR 33(24) is excluding reservation,
hence the setback area shall be deducted for calculation of
4.0 FSI Cap”.
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(c) In the same case the Chief Engineer had put up a
th
note dt 14 May 2019 recommending FSI 3.00 on the
gross plot area [i.e. 3 x 4675.62 sq.mtrs = 14,026.86
sq.mtrs] under DCPR 33(7) and FSI 1.00 on the net plot
area [i.e. 1 x 4285.44 sq.mtrs : 4285.44 sq.mtrs] under
DCPR 33(18) : aggregating to combined FSI 18,670.58
sq.mtrs. The then Municipal Commissioner Shri Praveen
Pardeshi had endorsed remarks thereon dated 06.06.2019
“FSI permissible shall be on net plot area.”. When the
proposal was resubmitted for approval by considering FSI
3.0 on gross plot area and incentive FSI 1.0 for PPL was
considered on net plot area, the then Municipal
Commissioner Shri Praveen Pardeshi has endorsed
remarks dated 12.11.2019 as ‘1) Please re examine the
proposal with respect to the concessions submitted for
approval, earlier remarks in Note Sheet dated 6.06.2019
and report thereon while resubmitting the proposal.’ He
had also directed an inquiry as to why the file was not put
up to him with required compliances.
(d) However when another proposal under file
number CHE/CTY/0936/F/N/337(NEW)-Amend(4) (old
file No. EB/7531/FN/A) was put up for approval under
combination of Reg 33(7) & 33(18) by considering total
FSI 4 on gross plot area. The then Municipal Commissioner
Shri Praveen Pardeshi has approved the proposal vide
note sheet dated 23.01.2020 by endorsing - ‘The then MC
vide No. MCP/5186 dated 08/09/2016 has given directions
as per the DCR in the issue. As per the same, the
permissible additional FSI component (1.0) under DCPR
33(18) for PPL shall be restricted on net plot area’.
Accordingly Mr Praveen Pardeshi, the then MC had in
2020 followed the earlier reasoned decision of Municipal
Commissioner Mr. Ajoy Mehta given in MCP/5186 dated
8.9.2016 that “the plot area for computation of FSI 4 in
case of 33(24) shall be considered on gross plot area.”.
(e) In another case : File No. EB/1525/C/A re Ward C,
the then Municipal Commissioner Mr. Praveen Pardeshi
had on 17.2.2020 once again approved FSI 3.00 on the
gross plot area under DCPR 33(7) and FSI 1.00 on the net
plot area under DCPR 33(19) – necessary resulting in a
total FSI which would be 4.13 on the Net plot area but
within FSI 4.00 on gross plot area.
(f) In an earlier case re File No. EB/5814/D/A in Ward
D the Chief Engineer had recommended FSI 3.00 on gross
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plot area under DCPR 33(7) and FSI 1.00 on net plot area
under DCPR 33(18) – aggregating to less than FSI 4.00 on
gross plot area [but which would amount to FSI 4.19 if net
plot area was considered] to the Municipal Commissioner.
This recommendation / proposal had been made on the
basis of the decisions dated 08.09.2016 and dt 23.01.2020
and 17.2.2020 in similar cases. The Municipal
Commissioner had approved the same on 16.10.2020.
(g) Accordingly, the then Municipal Commissioner Mr.
th
Ajoy Mehta’s cryptic decision dt. 26 May 2017, was
contrary to his earlier detailed / reasoned decision/Note dt
12.09.2016. Moreover although the then Municipal
Commissioner Pardeshi had initially by his decision/notes
dt. 6.06.2019 & 12.11.2019 stipulated that the Cap of FSI
4.00 should be computed on the net plot area,
subsequently by his decision on the Note 23.01.2020,
Municipal Commissioner Mr. Praveen Pardeshi had
specifically directed that the Earlier Municipal
Commissioner Note / reasoned decision dt 08.09.2016
should be followed and applied. Thereafter Municipal
Commissioner Mr. Praveen Pardeshi had on 17.2.2020
once again approved FSI 3.00 on the gross plot area under
DCR 33(7) and FSI 1.00 on the net plot area under DCPR
33(18) – necessarily resulting in a total FSI which would
be 4.13 on the Net plot area but within FSI 4.00 on gross
plot area. On the basis of the above I had re File No.
EB/5814/D/A in Ward ‘D’ recommended FSI 3.00 on gross
plot area under DCR 33(7) and FSI 1.00 on net plot area
under DCR 33(18) – aggregating to less than FSI 4.00 on
gross plot area [but which would amount to FSI 4.19 if net
plot area had been considered] to the Municipal
Commissioner and he had approved the same vide
endorsement/decision dt. 16.10. 2020. It may also be
noted that unless the FSI Cap of 4.00 is computed on the
gross plot area, it would not be possible to avail / consume
the incentive FSI 1.00 under DCPR 33(18) in cases of joint
development under DCR 33(7) and DCR 33(24)/33(18)
and this would defeat the object of providing such
incentive FSI under DCR 33(24)/33(18) i.e. to encourage
and promote the construction of PPLs.
(h) In the present case on 17.07.2020 developer had
submitted representation to Hon’ble M.C. and Hon’ble
M.C’s endorse thereon “Pls put up the facts” under no,
MGC/A/3933 dated 21.07.2020. Accordingly, in view of
the above, I had, while drawing attention to the earlier
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contrary decision dt. 6.06.2019 of Municipal
Commissioner Mr. Praveen Pardeshi put up detailed report
and had once again recommended and sought approval “To
allow FSI 3.00 on gross plot area as per DCPR 33(7) and
1.0 FSI on net plot area, excluding set back area and AOS
as per DCPR 33(18)”. It was on this recommendation that
the Municipal Commissioner had once again [i.e. similar to
his earlier decision re File No. EB/5814/D/A in Ward ‘D’ dt.
16.10.2020] had approved my above
proposal/recommendation.
(emphasis supplied)
37. Though petitioner has filed a rejoinder to the affidavit of
respondent no. 6, the factual position with regard to the above
instances has not been controverted by him. Thus it is clear
that the MCGM has consistently followed the policy of allowing
FSI under Regulation 33(7) on gross plot area and incentive
FSI under other schemes such as Regulation 33(18) or 33(24)
on net plot area, while allowing development under
combination of schemes under Regulation 30(A)(12)
38. MCGM has thus successfully demonstrated before us that
the three decisions of the previous Municipal Commissioners
taken on May 26, 2017, June 6, 2019 and November 12, 2019
were in fact departure from professed policy. We therefore do
not find any exception being made by the incumbent Municipal
Commissioner (respondent no. 5) in permitting FSI 4.00 under
Regulation 33(7) on gross plot area and FSI 1.00 under
Regulation 33(18) of net plot area.
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F. 5 C LARIFICATION BY S TATE G OVERNMENT
39. To make the case of MCGM stronger, it has also relied
upon the clarification given by the State Government in a
similar case involving redevelopment of property under
combination of Regulations 33(7) and 33(12) of the DCPR
2034. MCGM had made a reference vide letter dated May 14,
2021 to the State Government as under: -
I. Whether the clarification dtd. 11.09.2008
given in respect of redevelopment in combination
of Regulations 33(7) & 33(15) can be extended to
the proposals which are being developed in
combination of Regulations 33(7) & 33(12) of
DCPR-2034, since there is change in the regulation
no. as stated at sr.no.1.
II. Whether FSI 4.0 can be allowed on gross plot
area while processing the proposal in combination
of Regulation 33(12) & 33(7).
40. Regulation 4(3) of DCPR 2034 provides for resolution of
question or dispute with regard to interpretation of the
Regulations by the State Government and reads thus:
Reg. 4(3) If any question or dispute arises with
regard to interpretation of any of these
Regulations the matter shall be referred to
the State Government which, after
considering the matter and, if necessary,
after giving hearing to the parties, shall
give a decision on the interpretation of the
provisions of these Regulations. The
decision of the Government on the
interpretation of these Regulations shall be
final and binding on the concerned party or
parties.
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41. The State Government answered the reference made by
MCGM by considering all the provisions of DCPR 2034
clarifying that in respect of proposal involving combination of
schemes under Regulations 33(7) and 33(12), FSI 3.00 under
Reg. 33(7) be computed of gross plot area and balance FSI 1.00
under Reg. 33(12) be computed on net plot area. Thus, in
similar circumstances the State Government has issued a
clarification that supports action taken by MCGM. The
clarification merely clarifies the position which already existed
and would therefore govern present case as well. However, Mr.
Joshi has submitted that the clarification issued by the State
Government is irrelevant for the present case as the case
under reference involved combination of schemes under
Regulation 33(7) and 33(12), which is different from
combination schemes under Reg. 33(7) and 33(18). He has
submitted that Regulation 33(12) deals with development of
contravening structure included in final plot of a town
Planning Scheme and removal and re-accommodation of
tolerated structures falling in the alignment of road. We fail to
understand as to how mere difference in the scheme which is
sought to be combined with another scheme under Regulation
33(7) would make the clarification issued by the State
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Government inapplicable to the present case. Mr. Joshi has
also contended that the State Government’s clarification is
subject matter of another petition, which is pending in this
Court.
42. As observed above, the State Government is conferred
powers under Regulation 4(3) to decide on interpretation of
the Regulations and interpretation given by the State
Government is final and binding. Even otherwise we do not find
that the interpretation placed by the State Government in
respect of cap/limit on maximum permissible FSI in respect of
proposal involving combination of schemes under Regulation
33(7) and 33(12) to be erroneous. However, since the
clarification is not under challenge, we do not express any final
opinion on the same. The issue of correctness of clarification
issued by State Government would be decided in that petition
and we do not wish to comment upon correctness of that
clarification while deciding this petition. We only take note of
that clarification to repel Petitioner’s allegation that the
decision of Respondent No. 5 is unprecedented and in violation
of earlier decisions of his predecessors.
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43. As contended by Mr. Anturkar, even if there two
interpretations possible, the one that would make operation of
Regulations workable will have to be accepted. As
demonstrated above, interpretation placed by MCGM and the
State Government, in our opinion, would make the entire
scheme of PPL workable when combined with the scheme
under Regulation 33(7). We would accordingly uphold such
interpretation and reject the one sought to be placed by
Petitioner. He has also placed reliance on judgment of the
Apex Court K. P. Varghese (supra), in which the Apex Court
has held that if plain meaning and literal construction of the
statute results in absurdity, injustice and unconstitutionality,
Courts must construe the statute having regard to the object
and purpose which the legislature had in mind for enacting the
provision and in the context of the setting in which it occurs
and with a view to supress the mischief sought to be remedied
by the legislation.
44. Mr. Joshi has contended that even while exercising
discretionary powers by Municipal Commissioner under
Regulation 6 in a case involving demonstrable hardship, he
cannot grant FSI in excess of permissible cap/limit. However
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we need not be go into the issue of correctness of this
contention as the Municipal Commissioner has not used the
discretionary powers under Regulation 6 in the present case.
45. Mr. Joshi’s contention about requirement to modify
development plan under section 37 of the MRTP Act for
permitting FSI as approved in the present case also does not
merit any consideration in view of our finding that FSI
cap/limit has not been breached in the present case.
46. We are therefore unable to hold that MCGM has accorded
any excessive FSI to respondent no. 10. In view of specific
provision in DCPR 2034 permitting computation of FSI 3.00
under Regulation 33(7) on gross plot area, the action of MCGM
be found fault with.
F. 6 S URPLUS A REA
47. Now we turn to the next issue raised by petitioner with
regard to alleged failure on the part of respondent No. 10 to
hand over surplus area. It is petitioner’s case that respondent
no. 10 is avoiding to handover surplus area as contemplated
under section 103I(3) of the Act of 1976. According to him
such surplus area would be 664.31 Sq. mtrs, since sale
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component in the building is mixed used i.e. residential and
commercial. Though detailed pleadings are raised in the
petition and submissions are made before us with regard to the
issue of surplus area, the entire issue is put to rest on account
of additional affidavit filed by MHADA on February 13, 2023,
thereby producing letters dated April 25, 2022 of respondent
no. 3 and September 13, 2022 of respondent no. 10. By letter
dated April 25, 2022 respondent no. 3 has put on record that
keys of total 109 flats were handed over to MBRRB towards
surplus area. Later by letter dated September 13, 2022,
respondent no. 10 inquired with MBRRB as to the exact
surplus built up area to be surrendered to the board, if any, as
per the NOCs dated April 23, 2010 and September 24, 2012.
MHADA has responded the said query by letter dated
September 28, 2022 conveying that the surplus built up area
be surrendered to MBRRB is NIL. We therefore do not see any
violation on the part of respondent no. 10 even with regard to
the aspect of handing over of surplus built up area to MBRRB.
F. 7 J UDGMENTS C ITED ON B EHALF OF P ETITIONER
48. What remains now is to deal with the various judgments
relied upon by Mr. Joshi:
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(i) Cipla Limited (supra) is relied upon in support of
contention that policy has to be followed in a uniform
manner, However we have already held that impugned
approval in the present case appears to be in line with
the uniform policy adopted by MGCM. In all other cases
except abrasion, on two occasions in the present case
itself, MCGM has allowed FSI 3.00 0n gross plot area and
FSI 1.00 on net plot area in combination of schemes.
(ii) Tata Cellular (supra) lays down broad principles on
interference by courts in administrative actions
particularly in the matters of tenders and contracts. The
judgment, far from assisting the case of the petitioner,
actually militates against him as the Apex Court has held
that courts cannot substitute its own opinion/decision in
place of the one taken by the administrator. In the
present case both MCGM and the State Government have
interpreted provisions of DCPR to mean that FSI under
Regulation 33(7) can be computed on gross plot area.
The interpretation is supported by provisions of
Regulation 33(7) and is plausible. We cannot sit as an
appellate authority over the same.
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(iii) Reliance on the judgment of this Court in BVG India
Ltd (supra) is again of little assistance to the case of the
petitioner. That case involved challenge to tender
conditions and while deciding the issue about validity of
tender conditions, this court has discussed legal
principles on authority of the State and its
instrumentalities to enter into contracts and principles
of judicial review in such contracts.
(iv) Supertech Limited (supra) and Kerala State
Coastal Zone Management Authority (supra) are relied
upon in support of contention that the principles of
equity cannot be invoked to regularise unauthorised
construction put up in violation of Development Control
Regulations. Since we have held MCGM has not granted
excessive FSI to Respondent no. 10 in violation of DCPR,
the judgment would have no application to the present
case.
(v) Bombay Dyeing & Manufacturing Co. Ltd (supra)
deals with the scope of entertainability of Public Interest
Litigation. Since we have entertained the present PIL and
decided contentions of the petitioner on merits, the
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judgment would have no application. This judgment is
also relied upon in support of the proposition that delay
alone cannot be a reason for throwing out a PIL. We have
already arrived at a conclusion that there is no delay in
filing the present PIL. Therefore even on this issue,
reliance on the judgment is unnecessary.
(vi) Pune Municipal Corporation (supra) is relied upon
in support of contention that the State Government
cannot make any changes to the Development Control
Regulations on its own. The judgment is referable to the
contention of Mr. Joshi that allowing additional FSI
would require modification of the DCPR by following
procedure under section 37 of the MRTP Act. We have
already held that grant of approval by the Municipal
Commissioner does not result in any excessive FSI
beyond the cap/limit provided for in the DCPR. Therefore
there is no question of any requirement for modifying the
DCPR. The judgment is therefore wholly irrelevant.
(vii) Rajendra Thacker (supra) is relied in support of the
contention that Municipal Commissioner cannot grant
concession in violation of DCPR. We have already held
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that no concession is granted by the Municipal
Commissioner in violation of DCPR in the present case.
(viii) Sunbeam Enterprises (supra) is relied upon in
support of contention that the planning authority must
process development permission strictly in accordance
with provisions of draft or final plan. We have already
held that the approval granted by the Municipal
Commissioner and plan sanction by the Municipal
Corporation did not violate provision of DCPR in any
manner and therefore the judgment has no application to
the present case.
(ix) Asian Resurfacing of Road Agency Pvt. Ltd. (supra)
and Pratima Mohanty (supra) relate to provisions of
Prevention of Corruption Act, 1988. The same are
possibly cited in support of prayer in the petition to take
action against Respondent nos. 5 to 9 under provision of
that Act. Since we do not find any violation/deviation on
the part of Respondent nos. 5 to 9 with regard the
provision of DCPR there is no question of directing any
action to be taken against them.
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(x) Shankara Co-operative Housing Society Ltd.
(supra) and Uday Gagan Properties Limited (supra) are
relied upon to defend the allegation of delay. However,
since we have already held that there is no delay in filing
the present PIL, it is not necessary to refer to those
judgments.
F. 8 S ECURITY D EPOSIT M ADE BY P ETITIONER
49. Having held that there is no violation of DCPR in grant of
the impugned approval dated November 12, 2020, we now turn
to the last aspect of the matter, which we have left to be
decided in latter part of judgment. Both MCGM and
Respondent No. 10 have mounted an attack on bonafides of
Petitioner in filing the present PIL. True it is that Petitioner
has selectively chosen the project for levelling serious
allegations of FSI violation. This has raised doubts about his
real intentions behind filing the present PIL. However,
Petitioner seems to have been alarmed essentially on account
of earlier 3 rejections of proposal of Respondent No. 10 by two
distinct Municipal Commissioners. The Petition is filed on
account of Respondent No. 5 taking a diagonally opposite view
than the one taken by his predecessors in the present case
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itself. Though the MCGM has successfully demonstrated that
those decisions of previous Municipal Commissioners were in
fact aberrations and that the decision of Respondent No. 5 is
actually valid, it would be unfair to castigate Petitioner for
filing present PIL. It was but natural for Petitioner to raise an
alarm after noticing previous decisions of Municipal
Commissioners. However, we must observe that Petitioner
ought to have been careful in levelling allegations against high-
ranking officials, particularly the Municipal Commissioner and
Chief Engineer and ought to have avoided impleading them as
parties in person and levelling any personal allegations against
them. For such conduct, Petitioner deserves admonition.
50. Therefore, though we have held that all the contentions
raised by Petitioners are unfounded and devoid of any merits,
we do not propose to penalise him for having filed the present
petition. Hence even though this Court, by order dated
December 5, 2022, directed that failure of Petitioner in his
claim would entail forfeiture of security deposit, on a deeper
scrutiny of the matter, we refrain ourselves from directing
forfeiture of security deposit.
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G. O RDER
51. Resultantly, we do not find any merit in the petition. We
accordingly proceed to pass the following order :
(i) Public Interest Litigation filed by petitioner is
dismissed.
(ii) Petitioner is permitted to withdraw security deposit of
Rs. 2,00,000/- deposited by him in this court.
(iii) Rule is discharged. There shall be no orders as to costs.
(SANDEEP V. MARNE, J.) (ACTING CHIEF JUSTICE)
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