IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.640 OF 1998 M/s.Fairmount Textile India Pvt.Ltd., a Company registered under the Companies Act, 1956 and having its registered office at SAS Complex (PCG Industrial Estate, Sakinaka, Mumbai -400 072. ...Petitioner V/s. Municipal Corporation of Gr.Bombay, a statutory body having its office at Municipal Building, Mahanagar Palika Road, Fort, Mumbai - 400 001. ...Respondent ...... Mr.M.P.S.Rao with Mr.Girish Kulkarni i/b Mr.Sandeep Waghmare for Petitioner. Mr.N.A.Shaikh for Respondent. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. NOVEMBER 19, 2008. NOVEMBER 19, 2008. NOVEMBER 19, 2008. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. Heard Counsel for the parties. 2. This Petition under Article 226 of the : 2 : Constitution of India takes exception to the order passed by the Deputy Municipal Commissioner (Z-V) dated 16th October 1997. It is unnecessary to burden this order with all the events except to refer to the fact that notice under Section 351 of the Mumbai Municipal Corporation Act was issued on 10th August 1996 stating that the Petitioner has erected structure without the requisite permission of the Municipal Commissioner in that behalf. The description of offending structure is given in the Schedule to the notice as "construction of the mezzanine floor with M.S. girder and ladi coba admeasuring 79’ x 25’ plus 47’ x 25’ (description of unauthorised work)". The Petitioner first instituted Suit in relation to the said action. The Petitioner was protected by the Civil Court with liberty to produce relevant documents in support of the stand that the structure existing on the site was put up pursuant to approved plan. The Petitioner produced approved plans before the authorised Officer. The competent Authority has adverted to the approved plan dated 5th August 1989 and has noted the area of proposed loft allowed to be erected by the Corporation. : 3 : 3. Suffice it to observe that the permission granted to the Petitioner was only to erect a "loft" and no other structure. The area of the loft was also specified in the approved plan. On the basis of reports and inspection undertaken, it was noticed by the concerned Officer that the structure was not in accord with the said plan, for which reason, notice under Section 351 came to be issued. The Officer has examined the approved plan produced by the Petitioner and found that approval was only for a loft area of 66’-0" x 20’-0" = 1320 sq.ft. and 59’ x 23’ + 1357 sq.ft.i.e. total area of 2677 sq.ft. The Authority has also found as of fact that the existing structure stated to be loft erected is 54’ x 25’ = 1350 sq.ft. and 47’ x 25’ = 1175 sq.ft. i.e. total area of 2525 sq.ft. However, it has been consistently found that the height of the structure was more than 1.5 meters. It is on that finding the competent Authority proceeded to hold that the structure in place was not a "loft" which was permitted and approved in terms of order of A.E. (B & F) L-Ward dated 5th : 4 : August 1989 but a mezzanine floor. Indeed, to support the reason, Officer has adverted to provisions of DC Regulations of 1991 being Regulation 38 subclause (5) thereof. Relying on that fact, it was vehemently argued before this Court that the approval was granted in favour of the Petitioner on 5th August 1989 and the provisions in the DC Rules of 1991 could not be made basis to take action in respect of the structure in question. This argument though attractive, clearly overlooks that the specification of premises to qualify the description of loft was no different even in the earlier DC Rules. In the earlier Standing Building Bye-laws and DC Rules of 1967, Rule 17.5 plainly provided that a loft is one of which height does not exceed 1.5 meters. If the premises which have been erected by the Petitioner pursuant to the permission granted by the Corporation to erect a loft exceeds the height of 1.5 meters as has been found by the competent Authority, it necessarily follows that the structure is not a loft but a mezzanine floor. In case of mezzanine floor, the provisions of the DC Rules stipulates that the same : 5 : will have to be reckoned for the purpose of FSI. 4. The fact remains that the structure is not a loft which was allowed to be constructed by the competent Authority, but is a mezzanine floor. It is on that premiss, the Authority has rejected the claim of the Petitioner as there is no prior permission accorded for construction of the structure which has in fact been erected by the Petitioner. No fault can be found with the view so taken by the Authority. The position would remain the same whether it is DC Rules in vogue at the time when approval was granted or the Regulation which is now in force, namely, DC Regulations 1991. Thus understood, merely because the Authority has made reference to Regulations of 1991 in the order which is impugned before this Court, does not take away the ground on which show cause notice under Section 351 has been issued by the competent Authority. As a matter of fact, the show cause notice proceeds on the assertion that no prior permission has been obtained to erect structure described in the Schedule to be of M.S. girder and ladi coba. The permission which is pressed into : 6 : service by the Petitioner dated 27th May 1988 Exhibit ‘A’ is to erect a "wooden loft". Reliance was also placed on permission dated 21st June 1988 Exhibit ‘B’. Indeed, this permission does not specify the design details as in the case of earlier permission as wooden loft but clearly provides that the structure design details should be submitted to the Office for record. Suffice it to observe that no permission for erecting a structure which is in the nature of mezzanine floor has been granted to the Petitioner so far. In that view of the matter, the conclusion reached by the Authority below that the structure in question is unauthorised, is unexceptionable. 5. It is a different matter that the Petitioner would be free to apply to the competent Authority for regularisation of the offending structure. All aspects in that regard will have to be considered by the competent Authority on its own merits in accordance with law. If the structure is capable of being regularised, it will be open to the competent Authority to entertain the request of the Petitioner and pass appropriate directions or : 7 : order as may be warranted in the fact situation of the present case. All questions in that behalf are left open. 6. The Petitioner, if so desires, may submit formal application through qualified Architect for regularisation of the structure in question addressed to Executive Engineer, Building Proposal, L-Ward. That be done within six weeks from today, failing which, it will be open to the Corporation to take appropriate action as may be advised in relation to the disputed structure on the basis of impugned notice under Section 351 dated 10th August 1996 in accordance with law. 7. In the event, Petitioner submits regularisation application within specified time, the said application will have to be decided within two months from its presentation. Till the application is finally disposed of, the Corporation shall not take any precipitative action with regard to the disputed structure. In the event, the decision on the regularisation application is adverse to the Petitioner, the same shall not be : 8 : acted upon by the Corporation for a period of two weeks from the date of its service on the Petitioner. 8. It is once again made clear that if the Petitioner fails to apply for regularisation within stipulated time, it will be open to the Corporation to proceed against the disputed structure forthwith. 9. Petition disposed of on the above terms. A.M.KHANWILKAR, J.