ssp 1 PIL 48 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION PUBLIC INTREST LITIGATION NO.48 OF 2010 WITH CHAMBER SUMMONS NO.362 OF 2010 Simpreet Singh and Anr. .....Petitioners versus The Union of India and Ors. ..... Respondents Mr.Y.P.Singh i/by Mr.Kiran P. Bhalerao, for the petitioners. Mr.R.A.Rodrigues with Mr.Mandar Goswami, for respondent No.1. Mr.S.S.Joshi, AGP, for respondent Nos.2 and 9. Ms.K.R.Panjabi, for the respondent-Corporation. Ms.Sharmila Deshmukh, for respondent No.3. Mr.D.J.Khambatta, Addl.Solicitor General with Mr.Ajay Fernandes and Mr.Vikramaditya Deshmukh i/by J.Sagar & Associates, for respondent No. 11. CORAM: P.B.MAJMUDAR & A.A.SAYED, JJ. DATE: 28th JANUARY, 2011 P.C. : 1. By way of this Public Interest Litigation, petitioners have prayed that the impugned building be demolished since the same is constructed in CRZ-1 and has been constructed in violation of series of laws. It is also prayed that the possession of the land in question be taken since there is a violation of conditions on which the exemption was granted. It has also been prayed that deletion of reservation of land from ‘Art Gallery’ be declared as illegal and the respondent No.11 who is the owner of the premises, should be directed to pay compensation regarding ssp 2 PIL 48 of 2010 the damage caused to the environment. 2. Learned counsel for the petitioners submits that petitioners are social workers. The grievance of the petitioners is that respondent No.11 who is a Film Star, has constructed a bungalow namely “Mannat”, by committing 32 violations of laws and the building is constructed in violation of Coastal Regulation Zone and the construction is in violation of Statutory Heritage Regulations, as initially there was a reservation for Art Gallery in the portion of the plot, which was subsequently deleted and the withdrawal of the reservation was not proper. The petitioners have given notice to the respondents through their Advocates in April, 2008. Learned counsel for the petitioners states that he is not aware as to whether in the same line, there are some other buildings are constructed or not. 3. During the course of hearing, Mr.Khambatta, learned counsel appearing for for respondent No.11 contended that the above PIL is not a genuine petition, but it is a publicity interest litigation, as according to him in connection with this very building, a Writ Petition was filed before this Court by other petitioners, which was dismissed by the Division Bench of this Court. At this stage, it would be appropriate to reproduce the order passed by this Court (Coram : R.M.Lodha, as His Lordship then was & Anoop V. Mohta, J.) in Writ Petition No.2214 of 2005 dated 22-02-2006. ssp 3 PIL 48 of 2010 1. Heard Mr.S.K.Sthalekar, the learned counsel for the petitioners, Mr.K.K.Singhvi, the learned Senior counsel for the respondent No.1 and Mr.D.Khambatta, the learned Senior counsel for the respondent No.5. 2. Inter alia the grievance of the petitioner in this writ petition is that despite the reservation of Art Gallery of area 450 sq.ft., to 2500 sq.ft., the residential building on the subject plot was constructed and later on, the reservation for Art Gallery came to be deleted. 3. It is true that initially the reservation of private property of secondary school was modified into Art Gallery of area of 450 sq.ft., to maximum of 2500 sq.ft and when the plans were approved by the Bombay Municipal Corporation, it provided for an Art Gallery. However, subsequently, after following the procedure contemplated in law, the reservation for Art Gallery was deleted. 4. The learned counsel for the petitioner could not point out any illegality in the construction of the residential building in the light of the deletion of reservation for Art Gallery. 5. As regards the newly constructed building being heritage compliant, we are informed that as per the recommendation of the Heritage Committee, the minor changes have been made in the elevation of the building. 6. Mr.K.K.Singhvi, the learned senior counsel for respondent No.1 brought to our notice the extract of the minutes of MHC meeting held on 2nd February, 2006, concerning the subject building. The extract of the minutes reads thus : "Case No.586/2004 Sr.No.575 Grade III "Villa Vienna Bungalow" Proposal:- Proposed development on plot bearing C.T.S. No.B/859 to B/862 of village Bandra at B.J. Road, Behind "Villa Vienna Bungalow" near Band Stand (West), H/W" Ward, Mumbai. "This is an amended proposal regarding the construction of a new building touching behind erstwhile "Villa Vienna" (Now Mannat) Bungalow. The plans for the new ground plus six storeyed structure, by maintaining the existing bungalow in the front, were earlier approved by the erstwhile MHCC. During the construction some minor modifications in the elevation etc. have been introduced ssp 4 PIL 48 of 2010 and the Architect has sought the NOC of the MHCC for the same. The Architect presented the amended drawings and photographs in today’s meeting. The Architect informed that all the amendments are approvable from the DC Regulations point of view. The only major amendment from heritage point of view is the introduction of the balcony at first floor level which was not there in the earlier plans. However, the same is not within the line of vision from the front road and does not affect the view of the existing bungalow. There is no change in the earlier proposed number of floors, height etc. Considering the above, it was decided by the Committee to recommend the said amendments as constructed on site for approval, purely from DCR-67 point of view, subject to its approvability being further examined and got confirmed by the concerned B.P. Dept." 7. We thus find no justifiable ground to entertain the writ petition in the nature of Public Interest Litigation. 8. It is disposed of accordingly. 4. Learned counsel for respondent No.11 submitted that this petition is filed at a very belated stage and the concerned respondent is in occupation of the said building since 2006 and there is no substance in any of the allegations made about the violations of laws. It is also submitted that the building in question is in CRZ-2 and not in CRZ-1 and the construction has been made after taking appropriate permission in this behalf from the concerned authorities. 5. On behalf of respondent No.2, an affidavit-in-reply has been filed by Mr.Sanjay Raghunath Kurvey, Deputy Director of Town Planning, Mumbai. The averments made in para Nos.2, 4, 5 are ssp 5 PIL 48 of 2010 reproduced herein under : 2. At the outset, I say and submit respectfully that the petition is misconceived and not maintainable. I say that the change in reservation imposed on the plot of land in question from “Art Gallery” to residential zone, has been carried out by the Municipal Corporation of Greater Mumbai and approved by the State Government by following the gamut of processes laid down in the MR&TP Act, 1966. I say that the said statutory process involves public participation. I say that the petition does not disclose that the petitioner who is now espousing the cause of public interest has taken part in the said public participatory process to which objections and suggestions were invited in respect of the said change. I say that the said change was carried out as long back as on 23rd June, 2004 and therefore, the petition filed at this point of time and after the said change in reservation was carried out and also much after development on the plot of land in question has commenced, raises a doubt the real intention and motive of the petitioner in filing the above captioned petition. I respectfully say and submit that it is well settled by a catena of decisions of this Hon’ble Court as well as the Hon’ble Supreme Court of India that petitions filed in public interest long after the cause of action is alleged to have arisen ought not to be entertained. I therefore, respectfully say and submit that the petition as filed is not maintainable and therefore, ought to be dismissed. 4. Without prejudice to the foregoing, I respectfully say and submit as under : I say that the said Revised final Development Plan came into force with effect from 29-06-1992. I say that thereafter, the leaseholders of the said plot of land represented to the Government to delete the said reservation on the ground of ideal location for Art Gallery would be in downtown areas of Mumbai like Kala Ghoda, Backbay Reclamation area rather than in the suburbs and that the Art Galleries at Linking Road and Kalapradarshini at D.N.Road do not get the required response. The lease holders further represented that at the Taj Lands End in Bandra there is already an in-house Art Gallery and the ssp 6 PIL 48 of 2010 same is not doing well. I say that considering the said request of the lease holders, the government thought it fit to modify the said Final Revised Development Plan. 5. I say that the State Government issued directives on 05-12-2003 to the Municipal Corporation of Greater Mumbai under Section 37(1) of the Act, to initiate a proposal under the said Section regarding the modification of the said plan in respect of the said plot, by changing the reservation from Art Gallery and include the said land in the Residential Zone. I say that after completing the procedure and following the gamut of processes laid down under the MRTP Act, the Municipal Corporation of Greater Mumbai submitted the said modification proposal to the State Government vide its letter dated 05-05-2004 for sanction under Section 37(2) of the said Act. I say that after making necessary enquiries and after consulting the Director of Town Planning, the Government sanctioned the said modification changing the reservation of the plot of land in question from Art Gallery to include it in the Residential Zone. As the modification proposal does not involve change of zone MOEF approval is not necessary for the same. I say that the Gazette notification sanctioning the said proposal dated 23rd June, 2004 is annexed hereto and marked as Exhibit 1. I say that it is mentioned in the said notification that in case the land is put to more beneficial use than the one allowed, prior permission of the Collector shall be obtained. I say that the said modification on being sanctioned as way back as on 23rd June, 2004 and having come into force on the said date, the above petition filed at this point of time, is in my respectful submission, belated. This issue of de-reservation of land from Art Gallery and including it into residential zone was also challenged by a petitioner Cyril Thomas Macwan, through PIL No.2214 of 2005. This PIL was dismissed by the Hon’ble High Court vide its order dated 22-02-2006. The petitioner challenged this order by filing an SLP No.9832 of 2006 in the Hon’ble Supreme Court of India. This SLP was also dismissed on 07-07-2006. ssp 7 PIL 48 of 2010 6. In the said affidavit-in-reply, it is mentioned that the building in question is located in CRZ-2 and not in CRZ-1. Detailed averments have been made in this behalf in para No.6 of the reply. The reasons as to why reservation of Art Gallery was changed that of to residential zone, has been dealt with in the affidavit-in-reply. In para No.8 of the reply, it is pointed out that development plans are not sacrosanct and have to change with the needs of the society. 7. An affidavit-in-reply has also been filed by Mr.Shivaji Ranoji Jondhale, Additional Collector and Competent Authority (ULC) Mumbai. Para Nos.3, 4 and 5 of the said affidavit read as under : 3. In reply to the petition, I have to state as under : I say that the status of the land bearing CTS No.B/859 to 862 of Village Bandra is decided by our Office vide LOI dated 16.12.1994 in favour of Shri N.K.Dubash and others (Lessee) thereby declaring status of the land as non-vacant land to the extent of 2226.23 sq.mtrs., excluding area under road set back to the extent of 220.17 sq.mtrs. Thereafter, considering actual area under road set back as per approved building plan as 314.65 sq.mtrs., and change in ownership of the property as per P.R.Cards, a Corrigendum was issued to the said LOI on 14-09-2006 in favour of Smt.Gauri Khan and Shri Shahrukh Khan (Lessee) thereby declaring the status of the land as non-vacant land to the extent of 2131.75 sq.mtrs., excluding area under road set back to the extent of 314.65 sq.mt. As the land was declared as non-vacant land and there was nil surplus vacant land in the property, thus no land or part of it was under acquisition under the Urban Land (Ceiling and Regulation) Act, 1976. I say that to redevelop the property, since it was non vacant land, permission under Section 22 of the ULCR Act, ssp 8 PIL 48 of 2010 was necessary. I say that M/s.Daulatani and Associates (Architect) vide letter dated 16-04-1993 applied to Our office for redevelopment permission as required under Section 22 of the ULCR Act. Considering the plinth area of old existing structure, land appurtenant and additional land appurtenant entire property was non-vacant. Accordingly, our office has granted redevelopment permission under Section 22 of the ULCR Act vide LOI dated 16-12-1994 subject to the conditions mentioned in the said LOI. Some of the conditions are as under : - Condition No.2 : The permission is operative for redeveloping the property in accordance with the provisions of D.C.Regulations in force. Condition No.3 : - The maximum size of tenements should be 120 sq.mtrs., plinth area. If the size of flat occupied by the owner/tenants in the property exceeds 120 sq.mtrs., then the land holder would be entitled to construct similar number of flats of an equivalent area in the new building subject to a maximum of 300 sq.mtrs., plinth area for each flat. Condition No.4 : Not more than one dwelling unit shall be sold/allotted to one family. I say that the above conditions were binding for redevelopment. 4. I say that as per Condition 8 of the LOI, the holder will not utilize the FSI of the structures which are not demolished. As per condition No.2, the permission is operative for redeveloping the property in accordance with the provisions of D.C.Regulations in force. So condition No.8 does not mean that land holder cannot use the balance FSI available which is not consumed in the old building. As per condition No.4 of the LOI, it is binding on the owner that not more than one dwelling unit shall be sold/allotted to one family and as per Condition No.3 of the LOI, the maximum size of tenements should be 120 sq.mtrs., plinth area. 5. I say that M/s.Daulatani and Associates (Architect) vide letter dated 17-12-2005 and dated 18-08-2006 applied to our office for grant of formal order. They submitted copies of building plan approved by M.C.G.M. Vide ssp 9 PIL 48 of 2010 No.CE/205.WS/AH dated 14-08-2006. I say that on going through the same, it is seen that main building structure is retained in the appended plan and plans for (Gr+6) building on rear side was approved by M.C.G.M. I say that size of tenements as per approved plan is less than 120 sq.mtrs. I say that as the proposal was in order, vide order No.C/ULC/D-III/22/5084, dated 14-09-2006, the office of the respondent No.9 granted formal order to Smt.Gauri Khan and Shri Shahrukh Khan. 7. On behalf of respondent No.3, Dr.B.N.Patil, Member Secretary, has filed affidavit-in-reply regarding the alleged violation of Coastal Regulation Zone. It would be advantageous to reproduce the relevant averments made in para Nos.2 and 3, which reads as under : 2. I say that the Ministry of Environment and Forests has constituted the Maharashtra State Coastal Zone Management Authority under the Coastal Regulation Zone Notification dated 19th February, 1991. I say that Authority consists of twelve members, the Chairman being the Principal Secretary, Environment Department and the other eleven members from the different departments such as Revenue Department, Urban Development Department, Industries Department, etc. I say that the Authority is responsible for monitoring and enforcement of the provisions of the Notification dated 19th February, 1991 and is empowered to examine all projects proposed in the coastal Regulation Zone area and give their recommendations before the project proposals are referred to the Central Government or other agencies entrusted to clear the projects under the Notification dated 19th February, 1991. 3. I say that as per paragraph 3(i) of the Notification dated 19th February, 1991 the Urban Development Department had prepared a Coastal Zone Management plan for the City of Mumbai in the year 1998. I say that the plan ssp 10 PIL 48 of 2010 was approved by the Ministry of Environment and Forest on 19th January, 2000. I say that as per the Coastal Zone Management Plan, the land bearing CTS No.859, 860, 861 and 862 of Village Bandra i.e. where the impugned building stands falls in the CRZ II. I say that the plan was prepared in accordance with the guidelines given in Annexure I and II of the Notification. I say that although in Annexure I the areas such are heritage area is classified as CRZ I, in the present case the area where the impugned building is situated is already a developed area. I say that as per the guidelines “developed area” is referred to as that area within the municipal limits or in other legally designated urban areas which is already substantially built up and which has been provided with drainage and approach roads and other infrastructural facilities such as water supply and sewerage mains. I say that the impugned building falls within areas classified as CRZ II as per the approved Coastal Zone Management Plan. 8. The petition has also been resisted by respondent No.10 who had constructed the said building, by filing detailed affidavit-in-reply. The averments in the petition have been denied by respondent No.10. Relevant averments of the affidavit-in-reply read as under : “6. With reference to paragraph 4.1 of the petition, I deny that the impugned structure has been “statutorily” named “Villa Vienna”. Merely listing/publishing in the list of heritage buildings and the Regulations thereto in or around 1995, did not amount to statutory naming. Even Victoria Terminus, a World Heritage site, now known as Chattrapati Shivaji Terminus, is still listed in the Heritage list at Entry No.121 as Victoria Terminus till today. I further submit that it is evident from the minutes of the Heritage Committee held on 3-11-2004 (Exh. M to the said Petition) the choice of name of respondent no.11 was acknowledged as by ssp 11 PIL 48 of 2010 changing the name of the heritage structure, it does not cease to be a heritage structure. I deny that the bungalow which is situated on leased collectors land was purchased somewhere around the year 1999 by my client and submit that the history of the title has been recited in paragraph C above. 7. With reference to paragraphs 4.2 of the said petition, I submit that as per BMC Guidelines under No.TPB 4392/5612/UD11/RDP approved by the Urban Development Department, Government of Maharashtra, on 12-11-1992, along with corrigendum No.1090/RDP-UD-11 dated 8th November, 1994, the build up area to be constructed and handed over to BMC for an Art Gallery reservation would be free of FSI and the land owner would be entitled to have the full permissible plot without taking into account the area utilized for constructing the Art Gallery. This is clarified in respect of the plot in question by a letter under reference No.D.C.Regulation/1094/2473/CR390/94/UD-11 of the U.D.D. Dated 10-11-1994 in the context of Corrigendum No.D.C. Regulation/1094/2473/CR390/94/UD-11 , made on 08-11-1994 to the DC Regulation 1991, DC Regulation 9 in Table 4(v)(4)(r) which allowed private owners who desire to develop their plots (which have a reservation for Art Galleries) subject to surrendering 10% of such built up space for the Art Gallery to the BMC for the said reservation which is allowed free of FSI. The owner is permitted to utilize the entire FSI of the plot to the extent of 100%. I deny that the said plot is in a thick heritage area and that the Art Gallery reservation was because this was so. I say that there have been several deletions of many structures from the notified list of heritage structures in the said Bandstand area. This is not a thick heritage area which can be seen from the photographs of modern and multi-storied, non heritage buildings in the said area constructed much prior to the deletion of the reservation of Art Gallery and/or construction of the impugned extension to the heritage bungalow which have been annexed as Exh.A. I further say that there is no requirement of an Art Gallery in a heritage area. Hereto annexe and marked as Exhibits B, B1 and B2 respectively are the copies of BMC guidelines ssp 12 PIL 48 of 2010 approved by UDD (GOM) on 12-11-1992. The said corrigendum No.D.C. Regulation/1094/2473/CR390/94/UD-11 made on 8.11.1994 and the further clarificatory letter under reference No.D.C.Regulation/1094/2473/CR390/94/UD-11 made on 10-11-1994 respectively. 8. With reference to paragraphs 4.3 of the said petition, I deny that open land forming a rear compound is an attribute ingrained in the grandeur of colonial style heritage bungalows. I deny that the open land to the rear of the heritage bungalow on the said plot was an attribute ingrained in the grandeur of the said heritage bungalow. 9. With reference to para 4.4 of the said petition, all development was carried out in accordance with the suggestions of the Maharashtra Heritage Conservation Committee (The MHCC) and the approved plans and I deny that there was any disregard of our heritage as alleged or at all. 10. With reference to para 4.5 I submit that as mentioned above in para 12 of this reply, development was permissible subject to 10% of the plot area being earmarked for Art Gallery reservation. The plans were approved by the BMC on 23-07-2002 for an Art Gallery comprising of stilt + 2 upper floors of an area of 244.64 mtrs. (10% of plot area) in the southern rearmost portion of the said plot and was never in the place where the impugned extension to the heritage bungalow stands. Hence, it is incorrect for the petitioner to allege that the entire rear courtyard/compound of this heritage bungalow was reserved for an Art Gallery. I deny that the impugned extension to the heritage bungalow which has a height of less than 24 mtrs., is multi storied as per D.C.Regulations 2(3) (11) (i). I further deny that the impugned extension to the heritage bungalow is not in consonance with the undertone and tenor of the local area which is evident from the photographs annexed and marked Exh. A of the surrounding local area of the impugned extension to the heritage bungalow. 11. With reference to para 4.6 of the petition, I submit that the minutes of the MHCC meeting held on 3.11.2004 (Exh.M page 145 to the petition) reflect how the MHCC ssp 13 PIL 48 of 2010 (which is an expert body) suggested that a modern treatment be given to the impugned construction and sought revised plans, so as to accentuate the features of the notified heritage structure. I deny that the extension building has at all obscured the heritage bungalow and/or has infringed on the style/elevation as alleged at all. In fact, the heritage bungalow was restored to its former grandeur and beauty as can be seen from the photographs annexed to the affidavit filed by respondent No.11. 12. With reference to para 4.7 of the said petition, I say that the road width of the passage to the north side of the plot has a prescribed Regular Line (RL) of 9.15 mtrs. The said road/passage is not motorable as a road which connects H.J.Bhabha Road to Mt.Mary Road. At present, as there are steps at the upper end of the