1 WP 1884 of 2011 and group IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1884/2011 1 Sharvan Developers Private Limited, A Company incorporated under the Companies Act, 1956, having its registered office at Deva Plaza, S.V.Road, Andheri (West), Mumbai 400 058 2 Mr.Praful Satra, of Mumbai , Indian Inhabitant, Managing Director of the Petitioner No.1, Having his office at Deve Plaza, S.V.Road, Andheri (West), Mumbai 400 058 PETITIONERS Vs. 1 The Municipal Corporation of Greater Mumbai, Having its office at Mahapalika Building, Mahapalika Marg, Opp.CST, Mumbai-400 001. 2 The Municipal Commissioner Municipal Corporation Greater Mumbai, Having his office at Mahapalika Building, Mahapalika Marg, Opp.CST, Mumbai-400 001. 3 Gulmohar Area Society’s Welfare Group, Having their office at 3, Matruchaya, Gulmohar Cross Road No.6, J.V.P.D. RESPONDENTS Scheme, Juhu, Mumbai- 400 049 2 WP 1884 of 2011 and group WITH WRIT PETITION NO.1806/2011 1 Jayesh Mehta, Indian,Adult, Inhabitant of Mumbai, Residing at 402, Ruchita Tower, Versova, Andheri Link Road, Andheri(West), Mumbai- 400 058 2 Kaushik Surendra Shah, Indian, Adult, Inhabitant of Mumbai, Residing at C/511-12, Alka Apartment, Opp.M.A.High School, S.V.Road, Andheri (West), Mumbai 400 058 3 Anup Kailashchandra Kedia, Indian, Adult,Inhabitant of Mumbai, Residing at 1, Dev Park, Opp.Chandan Cinema, Juhu, Mumbai 400 049 4 Madhu Khetan, Indian, adult, Inhabitant of Mumbai, Residing at 602, Anand Niwas, Amarshi Road, Malad (West), Mumbai- 400 056 5 Ranjeetsinh Mulrajsingh Gohil, Indian, Adult, Inhabitant of Mumbai, Residing at Flat No.23, Jai Chamunda Niwas, Carter Road Cross No.5, Borivali (East), Mumbai 400 066. 6 Magharam C.Kularia, Indian, Adult, Inhabitant of Mumbai, Residing at C/704, Suresh Smruti, Prathmesh Complex, Veera Desai Road, Andheri (West), Mumbai 400 053 7 Arvind Natwarlal Mehta, Indian, Adult, Inhabitant of Mumbai Residing at Plot No.12, Kathiyawad Society, 3 WP 1884 of 2011 and group Flat No.14, 3rd floor, Gulmohar Cross Road No.12, Vile Parle (West), Mumbai-400 049 ....... PETITIONERS Vs. 1 The Municipal Corporation of Greater Mumbai, Having its office at Mahapalika Marg, Opp.CST, Mumbai-400 001. 2 The Municipal Commissioner of Brihanmumbai Mahanagarpalika, Having its office at Mahapalika Marg, Opp.CST, Mumbai-400 001. 3 The Deputy Engineer, (Building & Proposal Department), BMC K-West Ward Having Office at Mahapalika Office, Andheri (West),Mumbai. 4 The Ward Officer, B.M.C., K-west Ward, Having Office at Mahapalika Office, Andheri (West), Mumbai. 5 Gulmohar Area Society’s Welfare Group, Having its address at 3, Matruchaya, Gulmohar Cross Road No.6, J.V.P.D. Scheme, Juhu, Mumbai- 400 049 6 Shravan Developers Pvt. Ltd. A Company incorporated under the Provisions of Companies Act, 1956, and having its Registered office at Dev Plaza, 2nd Floor, Mumbai-400 058 RESPONDENTS WITH WRIT PETITION NO.1807/2011 1 Rashmi Kamal Shah, Indian,Adult, Residing at Yash Kamal 4 WP 1884 of 2011 and group Bungalow, Bunbalow No.35, Chikoowadi, Opp.GIDC Guest House, Haria Hospital Road, GIDC,Vapi,Gujarat. 2 R.M.Realty Pvt.Ltd. A Company duly incorporated under the provisions of Companies Act, 1956, and having its registered office at 102, Boolani Industrial Estate, New Link Road, Opp.Fame Ad Labs, Andheri (W), Mumbai 400 058. 3 Kirti V.Zaveri, Indian,Adult, Inhabitant of Mumbai, Residing at 603, Diwani Mahal, 1st Floor, Gulmohar Road, JVPD Scheme, Mumbai 400 049. 4 Ajay Lohia, Indian,Adult, inhabitant of Mumbai, Residing at 62, Shangrila, Gulmohar Road No.11, Mumbai 400 049 5 Masuuma Deepak Namjoshi, Indian, Adult, Inhabitant of Mumbai, Residing at Flat No.1403, Raheja Classique Tower 3, New Link Road, Andheri (West), Mumbai 400 058 6 Nitin Amratlal Brahmbhatt Indian, Adult, Inhabitant of Mumbai Residing at 711, Mayfair Gardens, Azad Lane, Andheri (West), Mumbai 400 058 7 Anil Gupta, Indian, Adult, Inhabitant of Mumbai, Residing at Plot No.45, 4th Floor, Nirmal Prabhu, Juhu, Mumbai 400 049. PETITIONERS 5 WP 1884 of 2011 and group VS. 1 The Municipal Corporation of Greater Mumbai, Having its office at Mahapalika Marg, Opp.CST, Mumbai-400 001. 2 The Municipal Commissioner of Brihanmumbai Mahanagarpalika, Having its office at Mahapalika Marg, Opp.CST, Mumbai-400 001. 3 The Deputy Engineer, (Building & Proposal Department), BMC K-West Ward Having Office at Mahapalika Office, Andheri (West),Mumbai. 4 The Ward Officer, B.M.C., K-west Ward, Having Office at Mahapalika Office, Andheri (West), Mumbai. 5 Gulmohar Area Society’s Welfare Group, Having its address at 3, Matruchaya, Gulmohar Cross Road No.6, J.V.P.D. Scheme, Juhu, Mumbai- 400 049 6 Shravan Developers Pvt. Ltd. A Company incorporated under the Provisions of Companies Act, 1956, and having its Registered office at Dev Plaza, 2nd Floor, Mumbai-400 058 RESPONDENTS Mr.P.K.Samdhani, Sr.Advocate i/b Mr.B.K.Gala for petitioners in W.P. No. 1884/2011 Mr.R.A.Kapadia,Sr.Adv.i/b Mr.N.H.Shukla for petitioners in W.P. 1806/ 2011 Mr.V.A.Thorat, Sr.Adv.i/b Mr.N.V.Devashrayee for petitioners in W.P. 1807/2011 Mr.K.K.Singhavi, Sr.Adv.with Bennet D’Coma and Ms.V.S.Gharpure and Ms.P.A.Purandare for Respondent-MCGM Mr.Vibhav Krishna i/b Juris Consillis for Res.3 in W.P.1884/2011 6 WP 1884 of 2011 and group CORAM- P.B.MAJMUDAR, AND MRS.MRIDULA BHATKAR,J. RESERVED ON- 29th NOVEMBER,2011 PRONOUNCED ON-21st DECEMBER,2011. J U D G M E N T (Per Mrs.Mridula Bhatkar,J.) 1 The above petitions were heard finally by consent at the admission stage since common point is involved in these petitions, with the consent of the Advocates, the petitions are heard together and are disposed of by this judgment. Formal order of rule is passed and the service is waived by the respective Advocates. 2 In so far as Writ Petition No.1884 of 2011 is concerned, the same is filed by the Developer namely Shravan Developers, by which the petitioners have challenged the order passed by the Municipal Commissioner dated 30-07-2011. By the impugned order, the Municipal Commissioner gave directions regarding demolishing certain constructions carried out by the developers i.e. Lily ponds and adjacent deck areas, while giving an option that in lieu of demolition, it will be open to the developers to have equal floors of upper floors be demolished, if Lily ponds and Deck areas are to be retained by the owner by working out the 7 WP 1884 of 2011 and group revised FSI computation accordingly. The owner is directed to exercise its option within a period of six weeks. It is further directed that if the 11th floor can be constructed within the permissible FSI, the same may be regularized by charging premium/penalty as per policy. Else the same also to be demolished. The Municipal Commissioner further directed that the extended portion of toilets beyond approved plan should be demolished. Regarding deck parking and maneuvering areas based on the stamp duty ready reckoner rates of developed land, the Commissioner directed that as a deterrent against possible misuse in future, the developers shall pay security deposit for the areas under deck parking. It is ordered that no occupation permission or water connection will be granted unless such deposit is paid to the Corporation. It is the aforesaid order of the Municipal Commissioner which is impugned at the instance of the petitioners’ developers by way of this petition. The operative part of the order passed by the Municipal Commissioner is reproduced for better understanding as follows. 1 “ Lily ponds and adjacent deck areas should be demolished or equivalent area of upper floors be demolished, if these are to be retained by the owner, by working out the revised FSI computation accordingly. Owner shall exercise this option within a period of six weeks. 8 WP 1884 of 2011 and group 2 If the 11th floor can be constructed within the permissible FSI, the same may be regularized by charging premium/penalty as per policy. Else the same shall be demolished. 3 Extended portion of toilets beyond approved plan shall be demolished. 4 Respondent developer shall pay security deposit for the areas under deck parking and manoeuvring areas based on the stamp duty ready reckoner rates of developed land, as a deterrent against possible misuse in future. No occupation permission or water connection shall be granted to the building unless the said deposit is paid to the Corporation. “ 3 So far as the Writ Petition Nos.1806 of 2011 and 1807 of 2011 are concerned, the same are filed by the respective flat purchasers of the building in question. The said order of the Commissioner is also subject matter of challenge in both these petitions on various grounds, one of the grounds taken by the flat purchasers is that the order in question 9 WP 1884 of 2011 and group affects their rights, the said order could not have been passed without hearing the concerned purchasers. 4 The said building is located on a plot bearing CTS No.6-B, Village Vile Parle at Gulmohar Road, J.V.P.D.Scheme, Vile Parle (W), Mumbai. The developers have carried out construction upto the 10th floor. The respondent No.3 of Writ Petition No.1884 of 2011 filed a Public Interest Litigation i.e. Writ Petition (L) No.2442 of 2010 before this Court alleging that the part of the construction carried out by the developers is contrary to the DC Rules and that it is illegal and the same is required to be quashed and set aside. The said petition was opposed by the Corporation. However, at the time of hearing of the petition, the learned counsel for the respondent No.3, who is the original petitioner, requested that the averments made in the petition may be treated as a representation to the Corporation. The said petitioner was permitted to make appropriate representation annexing a copy of the writ petition to the appropriate authority and the appropriate authority of the Corporation was directed to dispose of the same within the stipulated time and in accordance with law. This Court clarified in the order that the Court has not expressed any opinion on merits of the matter. The said petition was accordingly disposed of on the aforesaid lines. 10 WP 1884 of 2011 and group 5 Subsequent to the said order, the Municipal Commissioner after hearing the petitioner-developers as well as the respondent No.3 herein, passed the impugned order. On behalf of the petitioner- developers, a stand was taken before the Commissioner that the construction is carried out as per the approved plan and as per DC Rules and the plans were sanctioned by the Corporation earlier and in view of the same, the representation made by the respondent No.3 is required to be rejected. In so far as the construction of 11th floor is concerned, a stand was taken by the petitioners that the Corporation has approved the plan of 11th floor subject to furnishing NOC from Civil Aviation Authority. Application for seeking NOC from Civil Aviation authority was made by the petitioner about six months back and the Civil Aviation authority (Delhi Office) gave NOC on 17-05-2011 and by Mumbai Office on 07-06-2011. However, notice for demolition is already given regarding the 11th floor and the developers undertook to demolish the same in February 2011 and demolished roof slab at many places. On behalf of the developers, a prayer was made that as per Circular dated 04-02-2011, the 11th floor may be regularized, since the NOC from Civil Aviation Authority is received. 11 WP 1884 of 2011 and group 6 The Municipal Commissioner gave hearing to the petitioners in W.P.1884/2011 as well as to the respondent No.3, who has filed the Writ Petition against the aforesaid constructions. The Commissioner has given his findings which starts from para 4.1 onwards in his order. So far as Lily Ponds and Deck areas are concerned, the Municipal Commissioner has considered DC Regulation No.30(ii)(a), which permits permissible features in open space as per the said DC Regulation. As per the order of the Commissioner, the features mentioned in the said rules, should only on the ground floor, beyond the required open spaces and they should be uncovered. The Commissioner found that there is no mention of Deck area in the D.C.Regulation 30 or 35(2). It is held by the Commissioner that as per the DC rules, it is clear that deck/part terraces provided near habitable rooms should be a common area, which shall be accessible from the common staircase. It is found that this is not a case in which deck is provided to each flat for exclusive use near the lily pond and the same is not permitted in the DC regulation as the lily ponds and the deck areas are also duly covered and are not open to sky. It is also found that as per the intent and spirit of the DC regulations, lily ponds area on every floor is not permissible, except on the ground floor. The Commissioner accordingly found that the covered deck areas at upper floors, exclusively attached to flat, cannot be allowed free of FSI to individual flats owners. He relied 12 WP 1884 of 2011 and group upon Regulation 6(1) of DCR, which provides that the construction to be in conformity with Regulations and neither the grant of permission nor approval of the drawing and specifications nor inspection by the Commissioner during erection of the building, shall in any way relieve the owner of such building from full responsibility for carrying out the work in accordance with these regulations. The Municipal Commissioner found that since there is no provision under DC Regulations to allow these areas free of FSI, these are required to be counted in FSI. Accordingly, Lily ponds and deck areas are permitted to be counted in FSI. On that basis, it is directed by the Commissioner that these areas should be demolished or equal areas of upper floors be demolished and if these areas are to be retained by the owners, working out the revised FSI computation accordingly. 7 Since the issue regarding 11th floor is not in dispute at this stage, it is not required to be dealt with. The Municipal Commissioner also held that the extended portion of the toilets beyond approved plan should be demolished. So far as the car parking at every floor level which is considered as deck parking is concerned, the Commissioner held that 196 car parkings have been provided, as against the required parking spaces of 145. Out of these 196 parkings, 99 parkings are proposed on habitable 13 WP 1884 of 2011 and group floor levels and 9 parkings are proposed at every fllor level, adjacent to the habitable areas. The Commissioner held that as per DC Regulation 36(5) (a), the parking spaces can be provided “underneath the building in basement, within its stilted portion or on upper floors. Though these areas are permissible free of FSI, the intent and spirit of the DC Regulation is clear and as per the same, parkings on upper floors should be exclusively parking floors and not in combination with the habitable area with a view to avoid any likely misuse by merging of such areas into habitable areas. It is held that parking on the habitable floor is not specifically prohibited under Regulation 36(5)(a), in the instant case, there are likelihood of misuse of the said area. On the basis of the said findings, the Commissioner directed that since there is a possibility of misuse of the said deck parking area in future and considering the fact that third party rights are already created, the Commissioner decided to levy security deposit for the areas under deck parkings and manoeuvring areas, based on the ready reckoner rates of developed land to act as a deterrent against possible misuse in future. Accordingly, no occupation certificate and water connection shall be granted unless the said deposit is paid by the developers. Regarding the recreation ground, it is found that the same is in consonance with the DC regulations. The Commissioner passed the order in connection with lily ponds and deck areas, demolition of the 11th 14 WP 1884 of 2011 and group floor, regarding the removal of extended portion of toilets beyond the approved plan, and charging of security deposit so far as the deck parkings area is concerned. It is the aforesaid order passed by the Commissioner which is impugned by the developers as well as by the individual flat owners, who has agreed to purchase the respective flats. 8 So far as Writ Petition No.1884 is concerned, the learned counsel Mr.Samdhani for the petitioners vehemently submitted that the construction of lily ponds as well as the adjacent deck areas is in consonance with the DC regulations and as per the sanctioned plan. It is submitted that since the Corporation had already granted such permission, subsequently, such decision/permission cannot be reviewed or recalled by the subsequent Commissioner as he has no power under the Mumbai Municipal Corporation Act or under the Development Control rules to review and set aside the order already passed by the earlier Commissioner. It is submitted by the learned counsel for the petitioners that the construction of the lily ponds cannot be counted in the total FSI as it is merely an architectural feature, which is permitted in Regulation 35(2) of the DC rules, for which the special permission was granted by the Corporation earlier under Regulation 64(b). It is submitted that when the respondent No.3 filed the Writ Petition, on behalf of the respondent- 15 WP 1884 of 2011 and group Corporation, a reply was filed by Mr.Pramod Bhangale, wherein a stand was taken that the construction carried out by the petitioners is in consonance with the DC rules and there is no illegality. The learned counsel for the petitioner submits that the construction in question is as per approved plan and when the construction is carried out as per the sanctioned plan, no fault can be found with the construction in question carried out by the developers. It is the contention of the petitioners that hearing was assumed to be on the basis of respondent no.3’s writ petition wherein the Corporation has filed the reply supporting the claim of the petitioners and confirmed that the plans were sanctioned as per the Development Control Regulation and the construction was as per the approved plan. Therefore, according to the petitioners there was no issue for the petitioners to answer. 9 The learned counsel for the petitioner submitted that the Commissioner himself found that the deck parking is not in variation of the sanctioned plan and against the Rules and in that view of the matter, he has no jurisdiction to pass any order to security deposit on an apprehension that the same area is likely to be misused in future.He submits that the said order of the Commissioner is therefore, without any jurisdiction and is liable to be set aside. He has relied upon the provisions 16 WP 1884 of 2011 and group of Section 53(1) of the M.R.T.P.Act. It is submitted that such order could not have been passed after the construction is completed and merely on the ground of apprehension of misuse of the said deck parking area. He submits that in any case, such deposit can never be treated as a premium for any other purpose. In a given case, even if it is presumed that the deposit can be recovered, there cannot any direction of deposit of the amount, as it is to be refunded after a particular time limit (Section 22(m) of the M.R.T.P.Act. The learned counsel for the petitioners submitted that the order of asking the petitioners to give security deposit, on the face of it, is without any jurisdiction and is required to be set aside. It is further submitted that in view of the requirement under Regulation 5(3) wherein the procedure for obtaining development permission and commencement certificate are postulated and they have to be followed at the time of sanctioning the plan and such security deposit is required to be returned back as per the time limit prescribed under the Rules. It is submitted by th learned Counsel for the petitioners that Regulation 5 of the DC Rules, is applicable only at the time of giving development permission and such power cannot be exercised subsequently. Regarding lily ponds, it is submitted that the same is in sanctioned plan and sanctioned plan provides the dimension and depth. It is submitted that the depth of the lily pond is only four feet and therefore, it is impossible to believe that it is 17 WP 1884 of 2011 and group a swimming pool. It is submitted that it is nothing but an architectural feature and projection. 10 Submissions of the learned counsel for the petitioners in WP No.1806 of 2011 Mr.Kapadia, the learned counsel for the petitioners in WP No.1806 of 2011, supported the arguments of Mr.Samdhani. He submitted that the flat purchasers have invested considerable amount after taking loans from the various banks and when the Commissioner was aware of the said fact, as he has mentioned about third party interest, he was required to give hearing to the petitioners especially when he is exercising quasi judicial powers by cancelling the plan sanctioned by the earlier Commissioner. The learned counsel for the petitioners submits that the order of the Commissioner is against the principles of natural justice. It is submitted that the order in question is not under Section 51 of the M.R.T.P.Act, and it is under DC Regulation 6. It is submitted that the construction of the lily ponds can never be treated as a swimming pool simply because some water is stored in it. He argued that even otherwise, the Corporation is estopped from taking contrary stand than what it has taken in the earlier petition. The learned counsel for the petitioner 18 WP 1884 of 2011 and group submits that the the flat purchasers have already availed considerable loan and a prudent purchaser taking into account the fact that the plan of the building to be constructed is already sanctioned by the Corporation, they invested large amount . There is no good ground to cancel the earlier permission granted by the predecessor of the Commissioner. Alternatively, it is submitted that since the petitioners have invested huge amount and considering the fact that 11th floor is still under construction, even if FSI is required to be adjusted, the same required to be adjusted from the 11th floor. He submits that the Commissioner has no residuary power in reviewing the order as per law. 11 Submissions of the learned counsel for the petitioners in WP No.1807 of 2011 Mr.Thorat, the learned counsel appearing for the petitioners submitted that the Commissioner had no jurisdiction to pass such an exemplary order while disposing the representation in question. He submits that the directions given by the Commissioner in this behalf, are therefore, contrary to law and without any authority of law. According to him, at the most, the Commissioner could have said that in his opinion, the construction in question is not in conformity with the DC Rules and he cannot give further directions in this behalf, as he has no authority to pass 19 WP 1884 of 2011 and group any order on the said representation. He relied upon the provisions of Section 51 of the M.R.T.P.Act. Mr.Thorat further submitted that the Commissioner should have also issued notices to the respective flat owners and in the notices, it should have been specifically mentioned as to on what basis the construction in question is offending by giving particulars. He further submitted that under Section 51 of the M.R.T.P.Act, the Commissioner is expected to pass a speaking order dealing with the point whether the development permission can be cancelled or revoked when substantial construction is carried out. He submitted that the Commissioner has no power to review earlier order which can be said to be quasi-judicial order and unless such powers are available, the Commissioner has no authority to revoke the earlier order. Submissions on behalf of the respondent-Corporation : - 12 Mr.Singhavi, in his turn, has argued that the Commissioner has the powers under Section 21 of the General Clauses Act, to pass appropriate order by which the Commissioner can review the earlier order. He submitted that the earlier order of sanctioning the plan can be said to be an administrative decision, which can be changed or revoked at any stage if it is found that the construction in question is not carried out as 20 WP 1884 of 2011 and group per the sanctioned plan. He submits that in any case, when