1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. WRIT PETITION NO.1531 OF 2007 1. Hotel Sahara Star, Sahara Hospitality Limited, Formerly known as Batra Hospitality Private Limited, a Company Registered under the Companies Act, 1956, having its Registered Office at Sahara India Point, C.T. S. No.40/44, S.V. Road, Goregaon(W), Mumbai-400 004. 2. Vivek Kumar, The Assistant Director and Principal Officer of Petitioner No.1 having his office at Hotel Sahara Star, Domestic Airport, Vile-Parle (East) Mumbai-400 099. ...Petitioner. Vs. 1. The State of Maharashtra. 2. Shri Vilasrao Deshmukh, The Chief Minister, Government of Maharashtra, Mantralaya, Mumbai-400 032. 3. Shri Chandra Shekhar, Metropolitan Commissioner, MMRDA, Bandra Kurla Complex, Bandra (East), Mumbai-400 051. 4. Shri Ramanand Tiwari, Principal Secretary, Urban Development Department, Mantralaya, Mumbai-400 032. 2 5. Municipal Corporation of Greater Mumbai, a Statutory Corporation Constituted under the Mumbai Municipal Corporation Act, 1888, having its office at Municipal Head Office Building, Mahapalika Marg, Mumbai-400 001. 6. The Municipal Commissioner of Municipal Corporation of Greater Mumbai, having his office at Municipal Head Office Building, 1st Floor, Mahapalika Marg, Mumbai-400 001. ...Respondents. .... Mr. K.K. Singhvi, Senior Advocate with Mr. T.N. Subramanian i/b. M/s. Haresh Mehta & Co. for the Petitioners. Mr. R.M. Kadam, Advocate General for Respondent Nos.1 to 4. Ms. A.K. Savla for Respondent Nos.5 and 6. ..... CORAM : SWATANTER KUMAR, C.J. & DR.D.Y.CHANDRACHUD, J. July 10 , 2008. JUDGMENT (PER DR. D.Y. CHANDRACHUD, J.) : The Centaur Hotel is situated in close proximity to the air terminals where domestic flight operations are carried on at Mumbai Airport. The hotel is located on a plot of land bearing CTS 2085 (part), and originally belonged to the Hotel Corporation of India Ltd. (HCI). Pursuant to the policy of disinvestment of the Government of India, HCI entered into an agreement on 18th April 2002 by which the 3 Hotel was acquired by the First Petitioner as a going concern together with its property, assets and obligations. On 4th June 2003, the Petitioners made an application to the Municipal Corporation of Greater Mumbai under Section 342 of the Mumbai Municipal Corporation Act, 1888 and Section 44 of the Maharashtra Regional and Town Planning Act, 1966, for permission to carry out additions and alterations to the Hotel. The Municipal Corporation issued an Intimation of Disapproval on 15th January 2004 under Section 346. A commencement certificate was issued by the Municipal Corporation on 29th March 2004 and 6th November 2004. 2. On 4th November 2003 and 11th June 2004, the Petitioners applied to the Urban Development Department of the State Government for the grant of additional Floor Space Index (FSI) under Regulation 33(4) of the Development Control Regulations for Greater Mumbai, 1991. On 19th June 2004, the Department of Urban Development sought reports from the Chief Engineer (Development Plan) of the Municipal Corporation and the Deputy Director of Town 4 Planning. On 6th August 2004, the Deputy Director informed the Urban Development Department that the plot of land was located in a Commercial Zone (C-2) and was not reserved for any purpose. The Deputy Director stated that he had no objection to permission being granted for the utilization of an FSI of two, but the Municipal Corporation as the Planning Authority would, while scrutinizing the proposals, have to bear in mind other requirements including minimum prescribed distances and parking. On 29th January 2005, the Chief Engineer reported that there was no deficiency in open space and adequate car parking spaces had been provided for. Orders of the Government were consequently sought on the proposal for the grant of enhanced FSI. On 8th February 2005, the concerned Executive Engineer of the Municipal Corporation informed the architect that “necessary concessions for allowing additional FSI under Regulation 33(4) .. are approved by the Municipal Commissioner”. 3. The Petitioners are alleged to have carried out work in 5 excess of the construction which was sanctioned by putting up : (i) a ground and three storeyed building framework; and (ii) an extension to the fourth and fifth floors of the existing Hotel Building. The Municipal Corporation issued a notice on 20th April 2005 under Section 354A of the Municipal Act followed by a notice under Section 53(1) of the Town Planning Act calling upon the Petitioners to demolish the ground and three storeyed framework on the ground that it was beyond the approved plan. On 26th May 2005, an Advocate's reply was submitted to the Municipal Corporation with a request to treat it as an application for regularization under Section 44 of the Town Planning Act. 4. A petition under Article 226 of the Constitution of India was instituted by the Petitioners seeking a Writ of Mandamus against the State Government for the grant of 100% additional FSI under Regulation 33(4). On 8th September 2006, an order was communicated by the Urban Development Department recording that the land in question was situated at the junction of the Express 6 Highway and a narrow road which leads to the Airport, besides being situated in close proximity to the Domestic Airport. The State Government held that the grant of additional FSI would lead to an increase in the number of vehicles in the vicinity of the Airport. The order recorded that Government had scrutinized the reports of the Chief (Transport and Communications) of the Mumbai Metropolitan Region Development Authority (MMRDA) and of the Joint Commissioner of Police (Traffic). The application for additional FSI was rejected for the following reasons: “Traffic volume study carried out by MMRDA in 2003 shows that the current peak hour volume at the junction is 18298 PCU's of which 2525 PCU' s (nearly 15%) are in the direction from Western Express Highway coming from sought turning right to Airport using the road next to Hotel Sahara Star. The road to Airport is of 19 mt. width with only 2 lane dual carriage way and the road on rear side of Hotel Sahara is only 11 mt. operating as one way. The ultimate carrying capacity is operating at level of 2200 PCU's/hour at Service E (Volume/Capacity Ratio of 0.91 during peak hour) which is below the desirable level of Service C (0.50). Further the junction is having no service roads along highway. The traffic volume data is of year 2003. The current peak hour flow would have exceeded the level of Service-E.” 7 The State Government was of the view that the proposal for sanctioning of additional FSI under Regulation 33(4) could not be acceded to in view of the existing constraints at site. The road which leads to the Domestic Airport is narrow and since the Airport was being extended, the Government was of the view that it would not be desirable to permit further traffic. The proposal was rejected. 5. By a judgment and order dated 30th March 2007, a Division Bench of this Court set aside the decision of Government and remitted the proceedings for reconsideration. 6. A Special Leave Petition was filed before the Supreme Court by the State Government on or about 7th August 2007. Prior thereto, by an order dated 11th June 2007, the Chief Minister had rejected the proposal of the Petitioners for the grant of additional FSI under Development Control Regulation 33(4). The Special Leave Petition was disposed of by the Supreme Court on 24th August 2007, 8 inter alia, with the following observations: “Having heard ... learned senior counsel appearing on behalf of the Petitioner and ... learned senior counsel appearing on behalf of the writ petitioners – respondents, we are of the opinion that the question raised in regard to the interpretation of Regulation 33(4) of the Development Control Regulations for Greater Bombay, 1991, need not be determined by this Court at this stage as it is accepted at the Bar that pursuant to or in furtherance of the order of remand, a fresh order has already been passed by the appellant State and the same is pending consideration before the High Court. We, however, make it clear that the question of law raised in this special leave petition shall remain open.” 7. The substantive challenge in these proceedings is to the order passed by the State Government on 11th June 2007, by which the application filed by the Petitioners for the grant of additional FSI under DCR 33(4) was rejected. The Petitioners seek a Mandamus, directing the Government “to grant 100% FSI .. as provided in Regulation 33(4)”. D.C.R. 33(4) : 8. Development Control Regulation 33(4) provides as follows : “Building of Starred Category Residential Hotels:- 9 With the previous approval of Government and subject to payment of such premium as may be fixed by Government (out of which 50 percent shall be payable to the Corporation), and subject to such other terms and conditions as it may specify, the floor space indices in Table 14 may be permitted to be exceeded in the case of buildings of all starred category residential hotels in independent plots and under one establishment as approved by the Department of Tourism, by a maximum of 50 per cent over the normal permissible floor space index in the F and G Wards of Island City and by a maximum of 100 per cent over the normal permissible floor space index in wards of the suburbs and extended suburbs. No condonation in the required open spaces, parking and other requirements as in these Regulations shall be allowed in the case of grant of such additional floor space index. [Notes – The use of TDR will be permissible in case of starred category residential hotels in suburbs and extended suburbs only over and above additional FSI granted under these Regulations subject to following conditions: (i) Additional floor area to the extent of 0.5 FSI by way of utilization of TDR (reservation TDR, and above the additional FSI granted in this Regulations, provided overall FSI does not exceed 2.5.) (ii) Such additional FSI (in the form of TDR) will be permitted only if additional FSI is availed under this Regulations. (iii) Loading of TDR will be governed by the 10 prescriptions contained in these Regulations]”. A. Submissions: 1. Petitioners: 9. The submissions urged on behalf of the Petitioners, to challenge to the order of the State Government are as follows: (i) The interpretation placed in the judgment of the Division Bench of this Court on DCR 33(4), while remanding the proceedings to the Government, is binding and conclusive for this Court and though the Supreme Court kept the question of law open, that was only when the question arose before the Supreme Court in future and not before this Court; (ii) In the order of remand, the Division Bench held that considerations pertaining to the volume of traffic are not relevant to the exercise of power by the State Government under DCR 33(4); 11 (iii) The State Government had unfairly discriminated against the Petitioners in that though all Five Star Hotels fall into the same category, it is only in the case of the Petitioners that the Government had made a reference to MMRDA regarding traffic congestion and no other starred category hotel had been refused additional FSI on that ground, on compliance of the conditions spelt out in the Regulations; (iv) Once the conditions spelt out in DCR 33(4) are fulfilled, the State Government is bound to accord approval to the proposal of the Municipal Commissioner and has no discretion to withhold its approval; (v) DCR 33(4) is not a complete code for the grant of additional FSI to starred category hotels; (vi) Traffic congestion is not a relevant consideration for the grant of additional FSI under DCR 33(4) because (a) The question of infrastructure has to be considered by the Planning Authority and the 12 State Government before a development plan is sanctioned; (b) DCR 52(8)(vii) provides that starred category hotels may be allowed on an 18 meter wide road; (c ) A developer of a starred category hotel can purchase TDR to the extent of 100% of the normal FSI and can construct a hotel consuming an FSI of two without the approval of the State Government; this would lead to the conclusion that traffic is not a relevant consideration for the grant of additional FSI; (d) Neither MMRDA, nor its authorities have been empowered under the statute to render advice to the State Government; (e) MMRDA has no role to play in framing and implementing the Development Plan for Greater Mumbai and the authority is prohibited from interfering with a subject which falls under Sections 61 and 63 of the Mumbai Municipal Corporation Act, 1888; and (f) Primacy would have to be given to the advice of the Planning Authority, the Deputy Director of Planning , the Police and the Tourism Department. 2. The State Government : 10. On behalf of the State Government it has been urged that : 13 (i) This Court in the exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India ought not to grant any relief to the Petitioners, who without any statutory approval carried out an unauthorised construction which resulted in the issuance of notices of demolition under the Municipal Act and the Town Planning Act; (ii) The Petitioners are disentitled to the benefit of regularization in writ proceedings since it is well settled that a deliberate deviation from the law cannot be condoned, particularly in the case of professional builders who understand the law; (iii) The order passed by the Supreme Court on 24th August 2007 leaves the question of interpretation of DCR 33(4) open and any other interpretation would result in the words used in the order of the Supreme Court, namely, “that the question of law raised in the Special Leave Petition shall remain open” being rendered otiose; 14 (iv) The plea of discrimination that is sought to be raised on behalf of the Petitioners was rejected in the earlier judgment of the Division Bench and was not kept open by the order of the Supreme Court ; in any event, the Petitioners have failed to discharge the burden cast upon them of establishing that they have been unfairly discriminated against; (v) The submission of the Petitioners that DCR 33(4) does not vest any discretion in the State Government, save and except for performance of the ministerial act of ascertaining that the conditions prescribed therein are fulfilled and to decide, the quantum of premium to be paid is fallacious; (vi) DCRs 32, 33 and 34 cannot be read in isolation and are part of a scheme of the subordinate legislation in issue; (vii) The provision for previous approval of the State 15 Government under DCR 33(4) entitles the Government to determine whether, on considerations germane to planning, the grant of additional FSI would be justified; (viii) DCR 32 prescribes an FSI which is available as a matter of right while DCR 33 is a relaxation by which additional FSI is permissible in certain cases; (ix) Considerations of traffic are extremely relevant and vital to the process of planning; (x) Planning itself is a dynamic process which involves meeting and adapting to changing needs. The Legislature could not have envisaged and provided for all situations which is why a wholesome discretion has been vested in the State Government under DCR 33 (4). This discretion must be exercised in consonance with considerations which are relevant to the Act; 16 (xi) The State Government is empowered to consider each individual application on considerations which are relevant to planning; (xii) The challenge by the Petitioners to the action of the State Government must satisfy the Wednesbury principle of unreasonableness. In the present case, the State Government in the exercise of its discretion had taken into consideration a factor which the statute has regarded as relevant. The State Government was justified in calling for a response from MMRDA having regard to its statutory functions and the view which is formed by MMRDA was supported by abundant documentary material; (xiii) There is a fundamental difference between utilization of TDR and additional FSI and considerations relevant to the grant of utilization of TDR will not necessarily apply to the grant of additional FSI. 17 B. Development Control Regulation 33(4): 11. Regulation 32 of the Development Control Regulations for Greater Mumbai, 1991, enunciates the maximum permissible Floor Space Indices in Table 14. These are defined with reference to the nature of occupancies, locations and use zones. Regulation 33 provides that an additional FSI may be allowed in certain categories. This addition of FSI is over and above what is prescribed in Regulation 32. Sub-regulations (1) and (2) provide for certain eventualities, namely, (i) Road widening and construction of new roads; (ii) Building of Educational and Medical Institutions and Institutional buildings. Sub-regulation (3) deals with building of Government or Semi Government Offices and of public sector undertakings. 12. DCR 33(4) deals with buildings of starred category residential hotels. The Regulation postulates that the FSI in Table 14 may be permitted to be exceeded in the case of buildings of all 18 starred category residential hotels subject to the fulfillment of certain conditions. These conditions are: (i) The existence of an independent plot; (ii) One establishment; and (iii) The approval of the Department of Tourism. Permission for the grant of additional FSI is subject to the “previous approval of the State Government” and subject to the payment of such premium as may be fixed by Government. In the F and G Wards of the Island City, an additional FSI upto a maximum of 50% over the normal permissible FSI can be allowed while in the Suburbs and extended Suburbs, the normal FSI can be permitted to be enhanced by a maximum of 100%. 13. The submission which has been urged before the Court is that in granting previous approval, the role of the State Government is confined to no more than verifying compliance with the conditions which have been spelt out in the Regulation and to the quantification of the premium which is charged from the developer. Such a restrictive reading of the power which has been conferred upon the State Government would not be justified having regard to the object 19 and purpose of the Regulation and the language which has been used. The Regulation uses the expression “previous approval”. The expression “approval”, as was noted by the Division Bench in the earlier proceedings means an act of confirming, ratifying, assenting, sanctioning or consenting to a certain act or thing done by another. The subordinate legislation in the present case qualifies the expression “approval” by the requirement that the approval should be previous. It would be impermissible for the Court to adopt an interpretation that would dilute the power of the State Government, by ignoring the import of the requirement that the approval must be a previous approval. The additional FSI is sanctioned in the first instance by the Municipal Corporation, but this is subject to the previous approval of the State Government. 14. The power which is conferred upon the State Government by DCR 33(4) is incidental to the obligation to ensure that the grant of additional FSI does not impede or obstruct the planned development of Greater Mumbai. If the intent of the subordinate legislation in the 20 present case was that the State Government is to perform only a ministerial act of verifying compliance with the conditions which have been spelt out, the Regulation would have been couched in restrictive language indicative of the conferment of only a limited function. 15. DCR 33(4) allows the normal FSI mentioned in Table 14 to be exceeded subject to the previous approval of the Government and subject to such other terms and conditions as Government may certify. The provisions of Regulation 33 enunciate specific categories in which the normal FSI that has been prescribed for the City may be permitted to be exceeded; the circumstances for the grant of additional FSI; the authority competent to do so and the safeguards subject to which the grant of additional FSI is contemplated. Some of those categories have already been mentioned hereinabove. Others included low cost, housing schemes for the Maharashtra Housing and Area Development Authority; reconstruction of buildings destroyed by fire; reconstruction or redevelopment of cessed buildings in the Island City by Co-operative Housing Societies; construction of houses for the 21 dishoused; and Urban Renewal Schemes. Similarly, normal FSI can be exceeded in the interest of resettling or rehabilitating project affected persons, redevelopment of contravening structures in a Town Planning Scheme and other such cases. The subordinate legislation has contemplated situations envisaged in the public interest where towards the realisation of a socio-economic objective and the interests of proper planning it was contemplated that the normal FSI may be permitted to be increased. Many situations are such that the achievement of the desired object of rehabilitation may not be capable of being achieved within the parameters of the normal FSI. Allowing an increase in the normal FSI casts a burden on the already stretched infrastructure of the City and may impact upon the density of tenements, the sharing of open spaces and the quality of life for the residents. It is in this backdrop that the power that has been conferred upon the State Government by diverse provisions of Regulation 33 must be construed. The State Government is not merely empowered, but is duty bound to consider the impact of the grant of enhanced FSI upon the integrity of the planning process and 22 upon the planned development of the City. Planning by its very nature is a dynamic exercise. The metropolitan city of Greater Mumbai is rapidly evolving and planning cannot be stratified into a static existence. Planning must be allowed to evolve to meet the exigencies of the day. The Legislature may not be able to envisage all the eventualities which may occur over a spell of time in the implementation of planning or town planning legislation. A provision has legitimately been made to confer upon the Government which has ultimate authority for the proper implementation and enforcement of Town Planning legislation to supervise the grant of additional FSI so as to ensure that the impact of the grant of additional FSI is consistent with planning norms. The submission that the role which has been assigned to the State Government by DCR 33(4) is purely ministerial in character cannot be accepted. On the contrary, the nature of the Regulation, the context in which it appears and the source of the statutory power must be given a purposive interpretation so as to recognize as vesting in the State Government the duty to take into consideration all considerations relevant and 23 germane to and that have a bearing on the proper implementation of planning legislation. C. The relevance of road infrastructure and the impact of vehicular use: 16. By a notification dated 2nd June 1973 the State Government approved the Regional Plan for the Bombay Metropolitan Region for the period 1970 to 1991. This region presently extends over 4355 square kilometers and comprises of the Municipal Corporations of Greater Mumbai, Thane, Kalyan and Navi Mumbai besides, 16 Municipal towns, 7 non-Municipal Urban Centres and 995 villages. There are nearly 40 Planning Authorities in the region for micro level planning of different areas. A situation was liable to emerge where the proliferation of Planning Authorities would lead to each authority dealing with its own problems on a localised basis, resulting in an absence of a holistic approach to the development of the region. Government, therefore, considered it appropriate to provide for the establishment of a central authority for planning, coordinating and 24 supervising the proper, orderly and rapid development of the Bombay Metropolitan Region. The State Legislature enacted the Mumbai Metropolitan Regional Development Authority Act in 1974 and the Authority came to be constituted under Section 3 thereof. The main object of setting up the Authority is to secure the planned development of the Mumbai Metropolitan Region and to achieve the objects and functions of the Authority