Case: Pratibha Co-Optive. H. Society Ltd. &Anr Vs. State Of Maharashtra &Ors

KASLIWAL, J. 1. This petition under Article 136 of the Constitution of India is directed against the order of Bombay High Court dated March 9, 1990 2. Facts necessary and shorn of details are given as under. Pratibha Cooperative Housing Society Ltd. (hereinafter referred to as the Housing Society) made some unauthorised constructions in a 36 storeyed building in a posh and important locality of the city of Bombay. The Bombay Municipal Corporation issued a show cause notice dated August 7, 1984 calling upon the Housing Society to show cause within 7 days as to why the upper eight floors of the building should not be demolished so as to limit the development to the permissible Floor Space Index (FSI). In the notice it was stated that additional FSI to the extent of 2773 sq. mts. was gained by the Housing Society and that the construction work had already reached 36 floors and that on the basis of the actual area of the building, the upper eight floors were beyond the permissible FSI limit and as such were required to be removed. The Housing Society submitted a reply to the show cause notice by their letter dated August 13, 1984. The Administrator of the Bombay Municipal Corporation made an order on September 21, 1984 requiring the Housing Society to demolish 24, 000 sq. ft. on the eight upper floors of the building on the basis of 3000 sq. ft. on each floor. The Housing Society made a representation but the same was dismissed by the Administrator by order dated October 31, 1984. An appeal submitted by the Housing Society was also dismissed by the State Government on October 7 1985. The Housing Society then filed a Writ Petition No. 4500 of 1985 in the High Court. A Division Bench of the High Court dismissed the writ petition on October 28, 1985. However, the High Court while dismissing the writ petition also observed as under It would, however, be fair and just in the circumstances of the case to give a choice to the society to reduce the construction up to permissible limit or whatever other method they can think of. It is of course for the society to come forward with a proposal in that behalf. We therefore direct that in case the society comes with any such alternative proposal within the four corners of the rules and regulations within one month from today the Municipality may consider. * The case of the Housing Society is that in pursuance to the said order it submitted application to the Municipal Corporation giving several alternative proposals on November 21, 1985. It may be noted at this stage that the Housing Society had preferred a Special Leave Petition No. 17351 of 1985 before this Court against the judgment of the High Court dated October 28, 1985 and the said special leave petition was dismissed by this Court on January 17, 1986. Further allegation of the Housing Society was that it submitted another proposal to the Municipal Corporation on February 17, 1986 and thereafter wrote to the Municipal Council on August 14, 1986 to consider their alternative proposals. A similar letter was also written to the Chief Minister of Maharashtra. On August 29, 1986 the Municipal Commissioner fixed up a meeting for hearing the alternative proposals of the Housing Society. It has been alleged that in the said meeting the Housing Society had put forward its case in support of the new proposals and the Municipal Commissioner had thereafter informed the Housing Society that he would consider the said proposals and take decision. However, no decision was taken till the filling of the present special leave petition before this Court. It has been further alleged that on December 27, 1988 the Housing Society wrote a letter to the Municipal Commissioner to consider the alternative proposals mainly of vertical demolition of the building instead of demolishing the eight upper floors. It has been alleged that a meeting took place between the architects of the Housing Society as well as the officers of the Municipal Corporation in January 1989 wherein the officers of the Corporation agreed that instead of demolishing eight upper floors, demolition can be made vertically so as to bring the entire construction within the permissible FSI. It has been further alleged that immediately thereafter the Housing Society was informed that henceforth it should contact the Municipal Commissioner directly and not any officers of the Corporation. It has been further alleged that the Corporation without considering the proposals of the Housing Society entrusted the work of demolition of the upper eight floors of the building to a company. In these circumstances the Housing Society filed Writ Petition No. 3016 of 1989 in the High Court. Learned Single Judge dismissed the writ petition by order dated December 19, 1989 and the appeal preferred against the said order was dismissed by the Division Bench of the High Court by order dated March 9, 1990 3. In view of the fact that the main grievance of the Housing Society was that its alternative proposal of demolishing the building vertically instead of eight upper floors was not considered on merits by the Corporation, a serious effort was made by this Court to get the feasibility of such proposal examined by the Corporation. Orders in this regard were passed by this Court on several occasions but ultimately no agreeable solution could fructify. The proposal was got examined at the highest level by the Municipal Corporation and ultimately the Commissioner rejected the proposal on November 13, 1990 and submitted a detailed report in writing for the perusal of this Court. In the above report it has been stated that in pursuance to the order of this Court dated October 22, 1990, the proposals submitted by the Housing Society on October 27, 1990 and October 29, 1990 in supersession of all alternative proposals, to demolish vertically one bedroom and servant quarters on all the floors to bring the building in tune with the FSI was considered but on the grounds stated in the report the proposal submitted by the Housing Society cannot be approved 4. In the circumstances mentioned above on the request of learned counsel for both the parties to decide the case on merits, we heard the arguments in detail on April 23, 1991. Thereafter, in order to clarify some points we directed the Chief Engineer-cum-Architect and the Municipal Commissioner to remain present on the next date namely, May 1, 1991 and to keep the record of the case also ready for our perusal 5. We have heard learned counsel for the parties at great length and have thoroughly perused the record. It may be noted that the Housing Society had made illegal constructions in violation of FSI to the extent of more than 24, 000 sq. ft. and as such an order for demolition of eight floors was passed by the Administrator, Municipal Council as back as September 21, 1984. The writ petition filed against the said order was dismissed by the High Court on October 28, 1985 and special leave petition against the said order of the High Court was also dismissed by this Court. The High Court in its order dated October 28, 1985 had granted an indulgence to the Housing Society for submitting an alternative proposal within the four corners of the rules and regulations within one month and the Municipality to consider the same. The proposal was submitted on November 21, 1985 but in the said proposal there was no mention of any vertical demolition of the building. The proposal with regard to the demolition vertically of one bedroom and servant quarters on all the floors was submitted for the first time on December 27, 1988. During the pendency of the special leave petition before this Court, this proposal was got examined by the Municipal Corporation. The Municipal Commissioner submitted a report on November 13, 1990 giving detailed reason for rejecting such proposal. It is well settled that the High Court under Article 226 of the Constitution is not an appellate court on the administrative decisions taken by the authorities. It cannot be said that the decision taken by the Municipal Commissioner suffers from any want of jurisdiction or is violative of any law or rules. The proposal submitted by the Housing Society was got examined by the architects and engineers and thereafter the order was passed by the Municipal Commissioner. It cannot be said that the action of the Municipal Corporation is tainted with mala fides. It was submitted by the learned counsel for the Corporation that the Corporation has entrusted the matter for investigation by the CBI and suitable action is being processed against the guilty officers of the Corporation with whose connivance these illegal constructions were made by the Housing Society 6. It is an admitted position that six floors have been completely demolished and a part of seventh floor has also been demolished. It was pointed out by Mr. K. K. Singhvi, learned counsel for the Corporation that the tendency of raising unlawful constructions by the builders in violation of the rules and regulations of the Corporation was rampant in the city of Bombay and the Municipal Corporation with its limited sources was finding it difficult to curb such activities. We are also of the view that the tendency of raising unlawful constructions and unauthorised encroachments is increasing in the entire country and such activities are required to be dealt with by firm hands. Such unlawful constructions are against public interest and hazardous to the safety of occupiers and residents of multistoreyed buildings. The violation of FSI in the present case was not a minor one but was to an extent of more than 24, 000 sq. ft. Such unlawful construction was made by the Housing Society in clear and flagrant violation and disregard of FSI and the order for demolition of eight floors had attained finality right up to this Court. The order for demolition of eight floors has been substantially carried out and we find no justification to interfere in the order passed by the High Court as well as in the order passed by the Municipal Commissioner dated November 13, 1990

Decision:
0[ds]It is well settled that the High Court under Article 226 of the Constitution is not an appellate court on the administrative decisions taken by the authorities. It cannot be said that the decision taken by the Municipal Commissioner suffers from any want of jurisdiction or is violative of any law or rules. The proposal submitted by the Housing Society was got examined by the architects and engineers and thereafter the order was passed by the Municipal Commissioner. It cannot be said that the action of the Municipal Corporation is tainted with mala fides. It was submitted by the learned counsel for the Corporation that the Corporation has entrusted the matter for investigation by the CBI and suitable action is being processed against the guilty officers of the Corporation with whose connivance these illegal constructions were made by the Housing Society6. It is an admitted position that six floors have been completely demolished and a part of seventh floor has also been demolished. It was pointed out by Mr. K. K. Singhvi, learned counsel for the Corporation that the tendency of raising unlawful constructions by the builders in violation of the rules and regulations of the Corporation was rampant in the city of Bombay and the Municipal Corporation with its limited sources was finding it difficult to curb such activities. We are also of the view that the tendency of raising unlawful constructions and unauthorised encroachments is increasing in the entire country and such activities are required to be dealt with by firm hands. Such unlawful constructions are against public interest and hazardous to the safety of occupiers and residents of multistoreyed buildings. The violation of FSI in the present case was not a minor one but was to an extent of more than 24, 000 sq. ft. Such unlawful construction was made by the Housing Society in clear and flagrant violation and disregard of FSI and the order for demolition of eight floors had attained finality right up to this Court. The order for demolition of eight floors has been substantially carried out and we find no justification to interfere in the order passed by the High Court as well as in the order passed by the Municipal Commissioner dated November 13, 1990