1 PIL.187/2007 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION PUBLIC INTEREST LITIGATION NO. 187 OF 2007 Sandeep Sharadchandra Thakur . ...Petitioner Vs. State of Maharashtra & Ors. ...Respondents. ---- Mr. Atul Rajyadhaksha, Sr. counsel i/b V. Chandrashekar and Ravi Talreja, for the Petitioner. Mr. Sameer Patil, AGP for Respondent No.1-State. Mr. G.S. Hegde, for Respondent No.2. Mr. A.A. Garge, for Respondent No.3. Mr. P.G. Sawant i/b M/s Ram & Co., for Respondent No.4. Mr. R.S. Datar, for Respondent No.5. Mr. Aspi Chinoy, Sr. counsel i/b Parimal K Shroff & Co., for Respondent No.6. Mr. C.J. Sawant, Sr. Adv. i/b M/s M. Tripathi & Co., for Respondent No.7 ..... CORAM: MOHIT S. SHAH C.J. AND S.C. DHARMADHIKARI, J. DATE : 29th JULY. 2010. P.C. 1] In this public interest litigation petition, the petitioner has challenged the order dated 13.1.2006 of the State of Maharashtra, Urban Development Department [Exhibit ‘F’], and the Circulars issued by the Government of Maharashtra, Industry, Energy and Labour Department,by which the State has made provisions for implementation of the scheme of additional F.S.I. for Information Technology Industries (I.T. Industries). 2 PIL.187/2007 2] The General Development Control Regulations for Navi Mumbai-1975 by amendments made on 19.4.2000 provided for additional FSI for I.T. Industries in the following terms: “Information Technology Land use is permitted in any land use zone other than Regional Park Zone and the maximum permissible FSI, in the entire Navi Mumbai area to the extent of 100% over and above the FSI values prevailing as on 1.4.2000 to the plots sold exclusively to software development at designated I.T. Parks only, at an additional lease premium as may be decided by the Corporation, with due consideration to the other provisions laid down under GDCRs, including parking standards. 3] Subsequently, the state government issued a resolution dated 12.7.2003 giving a list of activities in respect of IT Enable Services (ITES). Thereafter, by statutory order dated 20.5.2004 under section 154 read with section 37 of the Maharashtra Regional and Town Planning Act, 1966 (in short ‘MRTP Act), the government, inter alia, directed the corporation/authorities to initiate modification to include regulation as detailed out in the schedule in respect of special regulations for development of Information Technology and Information Technology Enabled Services (IT/ITES), whereby while developing site for IT/ITES with additional F.S.I. users ancillary to the principal user, as may be approved by the Directorate of Industries, shall also be allowed. 3 PIL.187/2007 4] By the subsequent statutory order under the same provisions, Government issued Resolution dated 13.1.2006, whereby it was directed that the CIDCO, and Navi Mumbai Municipal Corporation shall initiate modification to include regulations as detailed out in the schedule annexed to the notification, which provided as to how the additional F.S.I. is to be given for user of IT Units and ITES located in Navi Mumbai, and approved by the Directorate of Industries. At that point of time the Government provided that out of permissible built up area, 60% must be used for IT/ITES industries and the remaining area could be used in the ratio of 30 for support services and 10% for commercial purposes. 5] Subsequently, by government resolution dated 26.5.2006 the percentage was varied as under: 3] “As per Government Resolution dated 24.11.2005 it is essential to use/utilise 80% BUA for I.T. Industry and 20% for support services. But, for taking benefit of industrial park scheme, a developer of Private I.T. Park needs to have 10% BUA for commercial purposes. Taking into consideration proportion of BUA in Private I.T. Park is kept as follows: Out of total BUA a) Minimum 80% BUA for I.T. Industry. b) Out of 20% BUA approved for support services, (b) (1) 50% BUA for support service i.e. 10% of total BUA. b) (2) 50 % BUA for I.T. related commercial purposes i.e. 10% of total BUA. A proper implementation of this will be a responsibility of competent officers. 4 PIL.187/2007 4] As per Government Resolution dated 24.11.2005, it is essential to use/utilise 80% BUA for I.T. industry and 20% for support service out of total BUA. As per the earlier policy this proportion was 60% for I.T. industry and 40% for support services. Therefore, Private I.T. Park where LOI is granted prior to 24.11.2005 and where it is proposed to use/utilise 100% BUA for I.T. Industry and 40% BUA for support services and requested for amendment in given LOI accordingly, such cases will be regularised. The competent officer for issuing LOI/Regulation will be responsible for the proper implementation. 6] The challenge in the present petition is to the orders and circulars issued by the State on the ground that the regulations submitted in the form of general development control regulations cannot be permitted to be modified or diluted by such orders/regulations. It is alleged in the affidavit in rejoinder that in one case the use of built up area for I.T. purpose was only 16% and 18% for commercial areas. 7] Learned counsel for respondent no.2-SIDCO and learned counsel for respondent no.6 are opposing the petition. Learned counsel for respondent no.6 submits that the question of availability of power under section 154 has already been examined by the division bench of this court in “Bombay Environmental Action Group & Anr. Versus State of Maharashtra & ors. reported in 5 PIL.187/2007 [2001(4) Mh. L.J. Page 206, wherein it has been held “it is clear that the directives under section 154 of the MRTP Act could be issued in furtherance of the powers conferred therein and that by itself can be called as regulatory regime”. 8] It is submitted that the development control regulations itself permit the user of part of F.S.I. for ancillary support service purposes, and therefore, the government was justified in issuing various orders and circulars to permit 40%/20% built up area to be used for support service/ancillary/commercial purposes. 9] It is also stated that by the learned counsel for respondent no.6 on the basis of affidavit in reply filed on behalf of respondent no. 6, that the work of respondent no.6-IT park is complete, as also the internal work of the basement, ground and 16 upper floors is absolutely complete. It is submitted that the percentage for IT Industries use and other uses given by the petitioner is misleading, and the petitioner had referred to IT park which was under construction at the relevant time, and that after completion of the construction the percentage of built up area for IT Industries is 60% and the balance 40% is used for support service and commercial activities as it is permitted by the government at the relevant time. 6 PIL.187/2007 10] We have carefully considered the rival submissions as set out in the present P.I.L petition. A Public Interest Petition is entertained when it is pointed out that when the persons are unable to move the court for enforcement of their fundamental rights required relaxation of the Rule of locus standi and to prevent a gross violation of fundamental rights and other legal rights. As stated in the present case the grievance is that the statutory regulations permit the additional F.S.I. only for the IT industries, the government has permitted the built up area to be used for other purposes also, however, we do not find any substance in the grievance because the general development control regulations themselves provided that such F.S.I can be used for ancillary purpose. 11] The statutory order issued under the MRTP Act (Exhibit ‘E’)permitted that while developing site for IT/ITES with additional F.S.I. users ancillary to the principal user, as may be approved by the Directorate of Industries shall also be allowed. It transpires from the record that while granting such permission, the Directorate of Industries by a communication dated 2.2.2006 addressed to respondent no.6-M/s Vishwaroop Infotech Pvt. Ltd. permitted to use built up area for other ancillary purposes viz. “ (1) restaurant, (2) gymnasium, (3) small guest house, (4) small club house, (5) banking services, (6) medical store/dispensary, (7) departmental stores, (8) amusement, (9) communication centre, (10) travels agency, and (11) conference & convention centre. 7 PIL.187/2007 12] In view of the above, the question whether the respondents-authorities should have permitted the built up area to be used for ancillary purpose no longer survives. Then, this Court need not interfere with such policy decision communicated by letter dated 2.2.2006 permitting aforesaid ancillary activities. The petition stands dismissed with above observations. CHIEF JUSTICE S. C. DHARMADHIKARI, J.