Full Judgment Text
2015:BHC-AS:7490-DB
1 908.wp.10806.2014 J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10806 OF 2014
1. Sector 1, Shanti Nagar Welfare
Association
situated & having its Registered
office at Harsh Vihar,
Building No.19/704,
]
]
]
]
]
2. Sunidhi Shantinagar CHS. Ltd.
situated & having its Registered
office at Building Nos.B/16 & B/17,
]
]
]
]
3. Harsh Vihar Bldg.
Nos.18 & 19 CHS Ltd.
situated & having its Registered
office at Harsh Vihar,
Building Nos.18 & 19,
]
]
]
]
]
]
4. Kshitij Shanti Nagar CHS Ltd.
situated & having its Registered
office at Building No.B/20-21,
]
]
]
]
5. Harsh Vihar Bldg.
Nos. 29, 29 & 30 CHS Ltd.
situated & having its Registered
office at Harsh Vihar,
Building Nos.28 to 30,
]
]
]
]
]
]
6. Harsh-Vihar Bldg.
Nos.33 & 34 CHS Ltd.
situated & having its Registered
office at Harsh Vihar,
Building Nos.33 & 34,
]
]
]
]
]
]
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7. Kinjal Bldg. Nos. 35-36
CHS Ltd.
situated & having its Registered
office at Building Nos.35-36,
]
]
]
]
8. Harsh Vihar Bldg.
No. 41-A CHS Ltd.
situated & having its Registered
office at Harsh Vihar,
Building No.41-A,
]
]
]
]
]
All the Petitioners are situated and
are having their respective registered
Offices at Sector 1, Shanti Nagar,
Mira Road (East), Thane – 401 107.
]
]
]
] .. Petitioners
Versus
1. Mira Bhayandar Municipal
Corporation,
]
]
]
2. The Commissioner,
Mira Bhayandar Municipal
Corporation,
The Respondent Nos.1 and 2 having
its office at Swargiya Indira
Gandhi Bhavan, Chhatrapati
Shivaji Maharaj Marg,
Bhayandar (West), Thane-401 101,
]
]
]
]
]
]
]
]
]
3. M/s. Shantistar Builders,
Having its office at 302, Sharda
Chambers, 15, New Marine Lines,
Mumbai- 400 020
And at Sector 9, Shanti Nagar,
Mira Road (East), Thane – 401 107.
]
]
]
]
]
].. Respondents
Mr.Mohit P. Jadhav for petitioners.
Mr.N.R.Bubna for respondent nos.1 and 2.
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Mr.P.K.Dhakephalkar, senior advocate a/w. Mr.Aditya Shiralkar & Mr.Rahul
R. Kadam i/b M/s. Shiralkar & Co. for respondent no.3.
CORAM : ANOOP V. MOHTA,
K.R.SHRIRAM, JJ.
TH
DATE : 19 MARCH, 2015
ORAL JUDGMENT (PER ANOOP V. MOHTA, J.) :
1 Rule made returnable forthwith. By consent, heard finally.
2 The petitioners herein are the residents of area called Shantinagar and
through their Welfare Association have filed the present petition challenging
th
the commencement certificate dated 13 December 2013 issued by
respondent nos.1 and 2 (Mira Bhyandar Municipal Corporation) in favour of
respondent no.3 (Owner and Developer) of open plot bearing Survey
No.734 to 748 of village Bhayandar and Survey No.194 to 214, 252 & 254
th
of village Mira, details of which is mentioned in affidavit in reply, dated 9
February 2015 filed by respondent no.1-Corporation.
3 There is also no issue that the lay out plans have been revised earlier
th th
on 28 November 1997 and thereafter on 27 January 2006. The
commencement certificate in question is based upon the sanctioned/revised
th
plan dated 13 December 2013. There is no challenge whatsoever to the
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sanctioned lay out plan including the Area Statement. Based upon the
development regulations the requisite area of 15% recreational ground
(R.G.) of the plot is about 70708.57 sq.mtrs. Other deductions are also not
in dispute so also the area of plot for the construction of building for which
the commencement certificate has been granted by respondent nos.1 and 2.
th
4 Affidavit in reply dated 9 February 2015 filed by respondent no.1-
Corporation deals with the contention so raised by the petitioners in every
aspect with further material to justify their action of granting
commencement certificate. The petitioners are unable to point out any
defect and/or illegality regarding the Area Statement on the
revised/sanctioned plan, except making bare statements/contentions that
respondent nos.1 and 2 in collusion with respondent no.3 encroached upon
the R.G. area as averred in the petition.
5 The respondent no.1-Corporation in their affidavit has averred as
under :
4 I say that the first layout was sanctioned by the
then Grampanchayat in the year 1978 with the prior
approval of the Assistant Director of Town Planning of
Thane and N.A. order of the Collector of Thane. In the
said order, vide Condition No.6, it was mandate to keep
15% open space in the sanctioned layout. Similarly, at the
time of sanctioning the layout in the year 1978 to 1988, in
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any layout an area above 4000.00 sq.mtr. 10% for R.G. 5%
for Amenity Open space, i.e., total 15% R.G. was made
provision in Regulation No.11.3.1 and 11.7of Mumbai
Mahanagar Regional Development Authority Control
Regulations. I say that the Respondent No.3 after
deducting the area of road and reservation had shown Net
Plot Area of “A1” as 471390.49 sq.mtrs. in the plan and as
per this plot area 15% of R.G. area 70708.57 sq.mtrs. was
required however the respondent no.3 had proposed R.G.
area 988443.89 sq.mtrs. in the layout plan which is more
than 15%of required R.G.
5 I say that the buildings and certain recreational
grounds sanctioned in the aforesaid layout are already
developed by the Developer and they are existence since
the sanction of plan. However, the Developer as well as the
concerned Residential Complexes are not able to develop
and maintain the certain recreational spaces sanctioned in
the layout and keep free from any encroachment. In view
of these circumstances, the Town Planning Department of
the State Government had issued a circular dated
30/06/2010 directing all Corporation of Maharashtra to
take over the recreational grounds which are sanctioned in
the layout by the local authority and to maintain the same
are per the sanctioned plan. In view of the aforesaid
directions of the State Government, the Respondent
Corporation after completing all formalities entered into an
Agreement with M/s. Shantisar Buildings, the Respondent
No.3 through their authorised representative Ashit Ramesh
Shah on 25/03/2014 to record the handing over of the
Recreation Grounds in the aforesaid layout for the purpose
of development and maintenance only entirely at the costs
of the Corporation. The said Agreement is duly registered
with the Sub-Registrar of Thane having Document
No.2460/2014. Hereto annexed and marked as Exhibit “A”
is the copy of the plan showing the details of all the R.G.
Plots which are more particularly described in the
Schedule and shown in the plans annexed to the said
Agreement. The said R.G. are shown sector wise. So als
per the aforesaid Agreement it could be seen that total R.G.
plot admeasuring 98348.96 sq.mtrs. is handed over to the
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Corporation for development and maintenance and now
the Respondent Corporation is in possession of the R.G.
plot.
6 I say that the permissible Built up area along with
Development Riths is 716853.59 sq.mtrs. and proposed
area is 716730.85 sq.mtrs. out of which existing area was
710813.39 sq.mtrs. In the revised layout, proposed area is
6040.20 sq.mtrs. out of which 2461.33 sq.mtrs. built up
area was approved vide approval 26/12/2012 and area of
3456.13 sq.mtrs. is approved in the revised layout dated
13/12/2013.
6 The counsels referred their respective averments and the maps so
annexed to the petition. We have gone through the same also. The affidavit
in reply and the averments so recorded above are sufficient to dismiss the
present petition. We have also noted that the RG area as per the
revised/sanctioned has been made available. The petitioners' main grievance
has been redressed.
7 The learned counsel appearing for the Corporation made statement
th
that they had received possession of the RG area on 25 March 2014 as per
the development plan and scheme. The petitioners’ contentions, therefore
regarding the RG plot has been duly taken care of and so also the
interest/objection of the petitioners and the neighbours around the area.
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8 We are also satisfied that there is no illegality. We are unable to accept
the contention raised by the petitioners that before granting the
commencement certificate, they should have been heard. The counsel relied
upon the a judgment in the matter of Sirur Municipal Council Vs. State of
1
Maharashtra and contended that hearing should have been given. The facts
and circumstances in the case are totally different and distinguishable. This
judgment is based upon Sections 27 and 33 of the Maharashtra Regional
Town Planning Act, 1966. We are not concerned with the similar
circumstances in the present matter. On the contrary, there is an ample
material on record to show that the respondent-Corporation themselves
insisted that the RG area should be made available and ultimately they have
signed the plan and issued the commencement certificate after the RG area
made available by respondent no.3. The petitioners' complaint that the
earlier RG area is changed and shifted is untenable. The petitioners cannot
insist for personal hearing before granting such commencement certificate.
There is no provision pointed out which needs to be followed before
granting the commencement certificate. The objections are filed by the
petitioners. The respondent-Corporation has taken care of their objections
that resulted into the availability of the RG area for the locality. In these
circumstances, the question of giving personal hearing to the petitioners, as
1 1997 (1) MAH.L.J. 610
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contended, does not arise. The petitioners, as recorded above, have not
th
challenged the basic sanctioned/revised plan of 13 December 2013 but
challenged only the commencement certificate.
9 Therefore, taking overall view of the matter, no case is made out by
the petitioners. Hence the writ petition stands dismissed. No cost.
(K.R. SHRIRAM, J.) (ANOOP V MOHTA, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10806 OF 2014
1. Sector 1, Shanti Nagar Welfare
Association
situated & having its Registered
office at Harsh Vihar,
Building No.19/704,
]
]
]
]
]
2. Sunidhi Shantinagar CHS. Ltd.
situated & having its Registered
office at Building Nos.B/16 & B/17,
]
]
]
]
3. Harsh Vihar Bldg.
Nos.18 & 19 CHS Ltd.
situated & having its Registered
office at Harsh Vihar,
Building Nos.18 & 19,
]
]
]
]
]
]
4. Kshitij Shanti Nagar CHS Ltd.
situated & having its Registered
office at Building No.B/20-21,
]
]
]
]
5. Harsh Vihar Bldg.
Nos. 29, 29 & 30 CHS Ltd.
situated & having its Registered
office at Harsh Vihar,
Building Nos.28 to 30,
]
]
]
]
]
]
6. Harsh-Vihar Bldg.
Nos.33 & 34 CHS Ltd.
situated & having its Registered
office at Harsh Vihar,
Building Nos.33 & 34,
]
]
]
]
]
]
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7. Kinjal Bldg. Nos. 35-36
CHS Ltd.
situated & having its Registered
office at Building Nos.35-36,
]
]
]
]
8. Harsh Vihar Bldg.
No. 41-A CHS Ltd.
situated & having its Registered
office at Harsh Vihar,
Building No.41-A,
]
]
]
]
]
All the Petitioners are situated and
are having their respective registered
Offices at Sector 1, Shanti Nagar,
Mira Road (East), Thane – 401 107.
]
]
]
] .. Petitioners
Versus
1. Mira Bhayandar Municipal
Corporation,
]
]
]
2. The Commissioner,
Mira Bhayandar Municipal
Corporation,
The Respondent Nos.1 and 2 having
its office at Swargiya Indira
Gandhi Bhavan, Chhatrapati
Shivaji Maharaj Marg,
Bhayandar (West), Thane-401 101,
]
]
]
]
]
]
]
]
]
3. M/s. Shantistar Builders,
Having its office at 302, Sharda
Chambers, 15, New Marine Lines,
Mumbai- 400 020
And at Sector 9, Shanti Nagar,
Mira Road (East), Thane – 401 107.
]
]
]
]
]
].. Respondents
Mr.Mohit P. Jadhav for petitioners.
Mr.N.R.Bubna for respondent nos.1 and 2.
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Mr.P.K.Dhakephalkar, senior advocate a/w. Mr.Aditya Shiralkar & Mr.Rahul
R. Kadam i/b M/s. Shiralkar & Co. for respondent no.3.
CORAM : ANOOP V. MOHTA,
K.R.SHRIRAM, JJ.
TH
DATE : 19 MARCH, 2015
ORAL JUDGMENT (PER ANOOP V. MOHTA, J.) :
1 Rule made returnable forthwith. By consent, heard finally.
2 The petitioners herein are the residents of area called Shantinagar and
through their Welfare Association have filed the present petition challenging
th
the commencement certificate dated 13 December 2013 issued by
respondent nos.1 and 2 (Mira Bhyandar Municipal Corporation) in favour of
respondent no.3 (Owner and Developer) of open plot bearing Survey
No.734 to 748 of village Bhayandar and Survey No.194 to 214, 252 & 254
th
of village Mira, details of which is mentioned in affidavit in reply, dated 9
February 2015 filed by respondent no.1-Corporation.
3 There is also no issue that the lay out plans have been revised earlier
th th
on 28 November 1997 and thereafter on 27 January 2006. The
commencement certificate in question is based upon the sanctioned/revised
th
plan dated 13 December 2013. There is no challenge whatsoever to the
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sanctioned lay out plan including the Area Statement. Based upon the
development regulations the requisite area of 15% recreational ground
(R.G.) of the plot is about 70708.57 sq.mtrs. Other deductions are also not
in dispute so also the area of plot for the construction of building for which
the commencement certificate has been granted by respondent nos.1 and 2.
th
4 Affidavit in reply dated 9 February 2015 filed by respondent no.1-
Corporation deals with the contention so raised by the petitioners in every
aspect with further material to justify their action of granting
commencement certificate. The petitioners are unable to point out any
defect and/or illegality regarding the Area Statement on the
revised/sanctioned plan, except making bare statements/contentions that
respondent nos.1 and 2 in collusion with respondent no.3 encroached upon
the R.G. area as averred in the petition.
5 The respondent no.1-Corporation in their affidavit has averred as
under :
4 I say that the first layout was sanctioned by the
then Grampanchayat in the year 1978 with the prior
approval of the Assistant Director of Town Planning of
Thane and N.A. order of the Collector of Thane. In the
said order, vide Condition No.6, it was mandate to keep
15% open space in the sanctioned layout. Similarly, at the
time of sanctioning the layout in the year 1978 to 1988, in
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any layout an area above 4000.00 sq.mtr. 10% for R.G. 5%
for Amenity Open space, i.e., total 15% R.G. was made
provision in Regulation No.11.3.1 and 11.7of Mumbai
Mahanagar Regional Development Authority Control
Regulations. I say that the Respondent No.3 after
deducting the area of road and reservation had shown Net
Plot Area of “A1” as 471390.49 sq.mtrs. in the plan and as
per this plot area 15% of R.G. area 70708.57 sq.mtrs. was
required however the respondent no.3 had proposed R.G.
area 988443.89 sq.mtrs. in the layout plan which is more
than 15%of required R.G.
5 I say that the buildings and certain recreational
grounds sanctioned in the aforesaid layout are already
developed by the Developer and they are existence since
the sanction of plan. However, the Developer as well as the
concerned Residential Complexes are not able to develop
and maintain the certain recreational spaces sanctioned in
the layout and keep free from any encroachment. In view
of these circumstances, the Town Planning Department of
the State Government had issued a circular dated
30/06/2010 directing all Corporation of Maharashtra to
take over the recreational grounds which are sanctioned in
the layout by the local authority and to maintain the same
are per the sanctioned plan. In view of the aforesaid
directions of the State Government, the Respondent
Corporation after completing all formalities entered into an
Agreement with M/s. Shantisar Buildings, the Respondent
No.3 through their authorised representative Ashit Ramesh
Shah on 25/03/2014 to record the handing over of the
Recreation Grounds in the aforesaid layout for the purpose
of development and maintenance only entirely at the costs
of the Corporation. The said Agreement is duly registered
with the Sub-Registrar of Thane having Document
No.2460/2014. Hereto annexed and marked as Exhibit “A”
is the copy of the plan showing the details of all the R.G.
Plots which are more particularly described in the
Schedule and shown in the plans annexed to the said
Agreement. The said R.G. are shown sector wise. So als
per the aforesaid Agreement it could be seen that total R.G.
plot admeasuring 98348.96 sq.mtrs. is handed over to the
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Corporation for development and maintenance and now
the Respondent Corporation is in possession of the R.G.
plot.
6 I say that the permissible Built up area along with
Development Riths is 716853.59 sq.mtrs. and proposed
area is 716730.85 sq.mtrs. out of which existing area was
710813.39 sq.mtrs. In the revised layout, proposed area is
6040.20 sq.mtrs. out of which 2461.33 sq.mtrs. built up
area was approved vide approval 26/12/2012 and area of
3456.13 sq.mtrs. is approved in the revised layout dated
13/12/2013.
6 The counsels referred their respective averments and the maps so
annexed to the petition. We have gone through the same also. The affidavit
in reply and the averments so recorded above are sufficient to dismiss the
present petition. We have also noted that the RG area as per the
revised/sanctioned has been made available. The petitioners' main grievance
has been redressed.
7 The learned counsel appearing for the Corporation made statement
th
that they had received possession of the RG area on 25 March 2014 as per
the development plan and scheme. The petitioners’ contentions, therefore
regarding the RG plot has been duly taken care of and so also the
interest/objection of the petitioners and the neighbours around the area.
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8 We are also satisfied that there is no illegality. We are unable to accept
the contention raised by the petitioners that before granting the
commencement certificate, they should have been heard. The counsel relied
upon the a judgment in the matter of Sirur Municipal Council Vs. State of
1
Maharashtra and contended that hearing should have been given. The facts
and circumstances in the case are totally different and distinguishable. This
judgment is based upon Sections 27 and 33 of the Maharashtra Regional
Town Planning Act, 1966. We are not concerned with the similar
circumstances in the present matter. On the contrary, there is an ample
material on record to show that the respondent-Corporation themselves
insisted that the RG area should be made available and ultimately they have
signed the plan and issued the commencement certificate after the RG area
made available by respondent no.3. The petitioners' complaint that the
earlier RG area is changed and shifted is untenable. The petitioners cannot
insist for personal hearing before granting such commencement certificate.
There is no provision pointed out which needs to be followed before
granting the commencement certificate. The objections are filed by the
petitioners. The respondent-Corporation has taken care of their objections
that resulted into the availability of the RG area for the locality. In these
circumstances, the question of giving personal hearing to the petitioners, as
1 1997 (1) MAH.L.J. 610
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contended, does not arise. The petitioners, as recorded above, have not
th
challenged the basic sanctioned/revised plan of 13 December 2013 but
challenged only the commencement certificate.
9 Therefore, taking overall view of the matter, no case is made out by
the petitioners. Hence the writ petition stands dismissed. No cost.
(K.R. SHRIRAM, J.) (ANOOP V MOHTA, J.)
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