1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION PUBLIC INTEREST LITIGATION NO. 87 OF 2009 Bhrashtachar Nirmoolan Sanghthana & Anr. .. Petitioners. vs. The Bombay Municipal Corporation & Ors. .. Respondents. Mr. U.P. Warunjikar for the Petitioners. Mr. K.K. Singhavi, Sr. Adv., with Ms. G.S. Joglekar for respondent no. 1. Mr. J.D. Dwarkadas, Sr. Adv., with Ms. Manorama Mohanty i/by S.K. Shrivastava & Co. for the respondent nos. 2 & 3. Mr. Riyaz Chagla with Mr. Subodh Joshi with Mr. S.B. Kotak with Mr. D.V. Deokar, with Mr. Vismay Shroff, with Mr. Himanshu Mahajan i/by M/s. Parimal K. Shroff & Co. for Respondent no. 4. CORAM : J.N. PATEL, ACTING C.J. & B.R. GAV AI, J. DATE : 13TH JANUARY, 2010. 2 P.C. Heard. 2. This petition has been filed by the petitioner trust which is active in the field of social activities and seeks a writ of this court in the nature of order, direction against the respondent Corporation to demolish the excess unauthorised area constructed by respondent nos. 2 to 4 and that further action should be taken against the delinquent officers of respondent no. 1 for permitting such excess unauthorised construction undertaken by respondent nos. 2 to 4 and for other ancillary reliefs of interim nature like seeking appointment of Court Commissioner to verify the actual calculation of the FSI by respondent nos. 2 to 4 in the light of Development Control Regulations, 1991 and restrain respondent nos. 2 to 4 from creating any third party interest in respect of the flats constructed by respondent nos. 2 to 4 and for other interim and ad-interim reliefs. 3. A notice was issued to the respondents and they have filed their affidavit in reply. On behalf of respondent no. 4 it has been contended that the subject building was duly completed in accordance with the sanctioned building plans and building completion certificate was received on 25.4.2008 from Municipal Corporation of Greater Mumbai and that they have paid a sum of Rs. 13,78,68,622/- as premium for stair case, lifts, passages, etc., and that no loss is caused to the respondent no. 1 or to the State in the matter and that there is no violation of FSI in the said building and no excess area is constructed in the said building. It is their case that the 3 petitioners have no reason to file the petition after the building completion certificate was issued on 25.4.2008 (on completion of the building) raising frivolous challenges to the sanction of building plans without verifying the record and without considering the provisions of the D.C. Regulations, 1991 which has been adhered to and followed by the respondents while sanctioning the plans and while developing the said building and, therefore, the petition deserves to be dismissed with costs. 4. The respondent no. 4 has further contended that they have also filed the affidavit of their Architect, Mr. Clifford D'Silva in support of their case. In his affidavit, Mr. Clifford D'Silva, the Architect of Respondent No. 4 has specifically stated that the construction is in conformity with the building plan and that there is no deviation or breach of D.C.R. A specific reply has been given by him justifying the construction. The respondent no. 1 Corporation has also filed an affidavit of Mr. Shivaji T. Yamgar, Assistant Engineer, (B.P.) City on behalf of the Dy. Chief Engineer (Building Proposals) City, E-Ward, Municipal Office, 3rd floor, Sankli Street, Byculla, Mumbai wherein all the allegations are specifically denied. We need not reproduce all the pleadings of the parties. What we find is that the petitioners have themselves prayed to the Court to appoint a Court Commissioner to verify the actual calculation of the FSI by respondent nos. 2 to 4 in the light of Development Control Regulations, 1991 which go to show that they have filed this petition on vague and frivolous allegations against the respondents. The petitioners have filed vague rejoinder to the affidavit in reply filed by respondents in order to deny their contention and demonstrate their bonafides 4 in filing the petition as PIL. 5. We find that the petitioners have not been able to make out a case against the respondents that they have carried out the construction of the said building contrary to the D.C.R. for Greater Mumbai, 1991. It has been argued by the learned counsel for the petitioners that the Municipal Commissioner is expected to give reasons while granting sanction as provided under Regulation 64 (b) and in the present case no such reasons are placed on record. On the other hand, the sanction obtained by respondent nos. 2 to 4 do not show that the Municipal Commissioner has applied his mind in the matter for absence of reasons while granting sanction to the relaxation made in a plan. Regulation 64 (b) reads as under : "64. ......... (b) In specific cases where a clearly demonstrable hardship is caused, the Commissioner may for reasons to be recorded in writing, by special permission permit any of the dimensions prescribed by these Regulations to be modified, except those relating to floor space indices unless otherwise permitted under these Regulations, provided that the relaxation will not affect the health, safety, fire safety, structural safety and public safety of the inhabitants of the building and the neighbourhood." 6. The learned counsel for the petitioner has also drawn attention 5 of this Court to D.C.R. 35(2)(c) and it is contended by him that the lift lobby is provided as free of charge so far FSI calculation is concerned. But it can be seen that in the plan which is submitted by the Respondent No. 2 and which is approved by the Respondent no. 1 the lift lobby is on both sides of the lift and ordinarily the lift do not open on both sides and, therefore, the lift lobby in front of the lift on both sides should not have been counted as free FSI. Thirdly it is contended that the entire calculation is erroneous and reliance is placed on the letter dated 26.3.2008 which is addressed to the respondents by the respondent Corporation and annexed to the petition as Exhibit "D". It is contended that there is no specific ground for exemption from FSI and that the overall calculation of FSI concerned by the respondent is not correct. 7. In the affidavit in reply, the respondent Corporation has specifically mentioned that it is the Municipal Commissioner who has granted concessions in accordance with law and that the sanctions are accorded by the Chief Engineer (D.P.) and the concessions allowed under DC, Regulation 64(b) of the DCR are strictly under the DC Regulations which are allowed by the Municipal Commissioner and the letter Exhibit "D" at page 41 to the petition demonstrates that. It cannot be said that this permission or sanction is granted without application of mind as it is pursuant to the proposal sent by the Architects of the respondents which is examined by the Building Department of the Corporation and the note has been prepared for approval of the Municipal Commissioner wherein it is specifically proposed to allow area of lift lobby on habitable floor free of FSI 6 by charging premium and it does bear the endorsement of the Municipal Commissioner and, therefore, it cannot be said that the Municipal Commissioner has not applied his mind while according the sanction. 8. This Court cannot ignore the fact that in Mumbai a flood gate has been opened by such organisations in initiating public interest litigations and persons like the petitioners are dragging people to Court without satisfying themselves whether the cause which they are espousing in public interest is genuine for the reason they lose nothing in the transaction. On the other hand, the party against whom PILs are filed are put to substantial loss not only monetary but their reputation is at stake. In this fact situation such petitioners may go scot free even if they loose leaving the respondents to suffer the pain and loss. 9. Specifically, after the affidavit in reply has been filed by the Municipal Corporation and on behalf of respondent nos. 2 and 4, the petitioners did not care to file a specific rejoinder as to how the sanction granted by Respondent No. 1 is invalid. On the other hand, they seek a roving inquiry to be conducted by this Court by appointing Court Commissioner to verify the actual calculation of the FSI by respondent nos. 2 to 4 in the light of Development Control Regulations, 1991. This tendency on the part of the litigants and particularly who are filing public interest litigations in this Court has to be contained and unless this Court discourages such litigation at the threshold, it will be impossible to regulate them and any person who finds that a particular building has not been constructed 7 according to his whims and fancy, may approach this Court and seek its demolition by abusing the process of this Court in seeking direction that the Court should appoint Court Commissioner to assess the unauthorised construction. Such relief can be sought in case of any structure authorised or unauthorised. This is one such petition where the petitioners have taken liberty in the matter and have come with allegations which to their own knowledge were not correct as the petition is merely based on certain queries made under the Right to Information Act from the Corporation. There is mushroom growth of unauthorised construction all over Mumbai even on public land without seeking any sanction from Municipal Corporation, but the petitioners have thus targeted the building constructed by Respondent Nos. 2 to 4 without verifying the fact as to in what manner the sanction granted by Respondent No. 1 is contrary to Building Bye Laws, Rules and D.C. Regulations. We, therefore, dismiss this petition with exemplary cost for abusing the process of the Court. Considering the cost of the building and the sale of flats which were sought to be stalled is more than Rs. 50 crores, we quantify the cost as Rs. 40 lacs to be proportionally paid to each respondents i.e. Rs. 10 lacs to be paid to each of the respondents. We make it clear that if the petitioners fail to pay cost within a period of four weeks from the passing of this order, the same would be treated as fine and we direct the Collector Mumbai/Collector Mumbai Suburban District, Mumbai to recover the same from the petitioner Trust as fine (the Trustees will be liable to pay the same jointly and severally) by resorting to the provisions of the Maharashtra Land Revenue Code and deposit the same in this Court. On such cost being collected through the Collector, the same shall be paid to the 8 respondents. The Collector would also be entitled to recover its cost for recovery of the fine from the Petitioner Trust and its Trustees. (J.N. PATEL, ACTING C.J.) (B.R. GAVAI, J.)