Case: Bombay Metropolitan Region Development Authority, Bombay Vs. Gokak Patel Volkart Ltd. and Ors

2. On 28-5-1974, Gokak Patel Volkart Ltd., submitted a plan for construction of two houses at premises Nos. 124-126 Wodehouse Road, Colaba, Bombay, to the Municipal Corporation of Greater Bombay. The said two houses were occupied by tenants. The plan was for construction of a thirty-storeyed building utilising Floor Space Index (for short FSI) of 2.45 of the said plot3. The Development Control Rules existent at the relevant time permitted construction of building on the FSI of 2.45 under R-8 FSI zone in which the above property was situated. The plan was approved by the Corporation and on 13-9-1974 Intimation of Disapproval (IOD) was granted to the Company under Section 346 of the Bombay Municipal Corporation Act. It was stipulated in the IOD that no work should be started unless the existing structures proposed to be removed were in fact removed. It was also stated in the IOD that it was given exclusively for the purposes of enabling the party to proceed further with arrangements of obtaining "No Objection" Certificate from the Housing Commissioner under Section 13(bb) of the Bombay Rents, Hotel and Lodging House Rates Control Act. In pursuance of the IOD granted by the Corporation, the Company initiated proceeding for eviction of the tenants from the existing structures on the property in question. Ultimately in August 1979, the tenants were evicted and old structures were demolished. In the meantime, in 1975, the State legislature of Maharashtra enacted the Bombay Metropolitan Region Development Act, 1974 (Maharashtra Act No. IV of 1975) to provide for the establishment of an authority for the purpose of planning, coordinating and supervising the proper, orderly and rapid development of the areas falling within that region. The said Act came into force with effect from 26-1-1975. Section 13 of the Act(1) Notwithstanding anything contained in any law for the time being in force, except with the previous permission of the Authority, no authority or person shall undertake any development within the Metropolitan Region of the type as the Metropolitan Authority may from time to time specify, by notification published in the Official Gazette, and which is likely to adversely affect the overall development of the Metropolitan Region(2) Any authority or person desiring to undertake development referred to in sub-section (1) shall apply in writing to the Metropolitan Authority for permission to undertake such development(3) The Metropolitan Authority shall, after making such inquiry as it deems necessary and within 60 days from the receipt of an application under sub-section (2), grant such permission without any conditions or with such conditions as it may deem fit to impose or refuse to grant such permission. If such permission is not refuse within 60 days as aforesaid, it shall be deemed to have been granted by the Authority(4) Any authority or person aggrieved by the decision of the metropolitan Authority under sub-section (3), may, within 30 days, appeal against such decision to the State Government, whose decision shall be final. "The Metropolitan Authority, in exercise of powers under sub-section (1) of Section 13 of the said Act, published in the Official Gazette a notification dated 10-6-1977 providing, inter alia, that no construction or reconstruction of any building including addition to any existing building shall be carried out so as to have a Floor Space Index exceeding 1.335. As a result of the provisions of Section 13(1) of the Act and the notification dated 10-6-1977, a person desiring to undertake development in contravention of the notification had to apply in writing to the authority for permission to undertake such development. The authority could grant permission without any condition or with such conditions as it though fit or refuse to grant such permission. This has to be done within 60 days from the receipt of the application under sub-section (2) of Section 13. If the permission was not refused within the aforesaid period of 60 days under sub-section (3) of Section 13, such permission should be deemed to have been granted by the authority6. In view of the above developments, on 14-7-1977, Gokak Patel Volkart Ltd. (hereinafter described as "the respondent-Company"), applied to the Bombay Metropolitan Region Development Authority (hereinafter described as BMRDA) under Section 13(2) of the Bombay Metropolitan Region Development Authority Act, 1974 (hereinafter referred to as the Act) for permission to undertake the above development with the FSI of 2.45. The said application was received by the BMRDA on 15-7-1977. The permission was refused by the Metropolitan Authority under Section 13(3) of the Act on 8-9-1977. The respondent-Company preferred an appeal to the State Government under Section 13(4) of the Act on 19-9-1977 which was allowed by the State Government on 23-2-1978. Accordingly, the respondent-Company was given a commencement certificate under Sections 344 and 345 of the Bombay Municipal Corporation Act on 31-3-19807. Soon thereafter a writ petition was filed by the residents of Colaba challenging the above order of the State Government under Section 13(3) of the Act allowing the appeal of the respondent-Company against the order of the Metropolitan Authority. By a judgment dated 5-4-1984 passed by the Bombay High Court, the order of the State Government as well as the order passed by the Metropolitan Authority under Section 13(3) of the Act rejecting the application of the respondent-Company were set aside with a direction to the Administrator of the Municipal Corporation of Greater Bombay to consider the application afresh and pass appropriate orders8. The material part of the order was asthe petition succeeds and the impugned order dated 23-2-1978 passed by Minister for Housing and BMRDA is set aside the so also the order passed by Respondent 3 rejecting the application and which was communicated to Respondent 4 on 8-9-1977. Respondent 3 is directed to reconsider the application dated 14-7-1977 filed by Respondent 4 under sub-section (2) of Section 13 of the Act, in accordance with the observation made in this judgment and pass appropriate orders. Respondent 3 shall pass the orders as expeditiously as possible. "The Metropolitan Authority took up the application of the respondent-Company under Section 13(3) of the Act for reconsideration in pursuance of the above order of the Court and by the order dated 19-9-1984 rejected the application under Section 13(3). Against that, the respondent-Company filed appeal on merits before the State Government on 16-10-1984 which is still pending10. On the very next day, the writ petition was also filed in the High Court of Judicature at Bombay by the respondent-Company, challenging the order of the Metropolitan Authority passed under Section 13(3) rejecting the application of the respondent-Company under section 13(2) of the Act on the ground that in the facts and under the circumstances of the case and in view of the lapse of sixty days stipulated in Section 13(3) of the Act, permission was deemed to have been granted to the respondent-Company by the Metropolitan Authority and in that view of the matter, the order of rejection passed under Section 13(3) was illegal and without jurisdiction11. The Division Bench of the Bombay High Court upheld the contention of the Company and held that permission must be deemed to have been granted to construct the building according to the plan in view of the fact that such permission had not been refused within 60 days as required by sub-section (3) of Section 13 of the Act. In coming to this decision the Division bench took note of the following facts. The judgment in the earlier writ petition had been delivered on 5-4-1984 by which order of the Metropolitan Authority passed under Section 13(3) had been set aside. There was a direction to pass a fresh order, that direction was not carried out at all. BMRDA applied for certified copy of the judgment on 18-4-1984; on 24-5-1984 the Company communicated the operative part of the order dated 5-4-1984 to BMRDA. The Executive Committee of the BMRDA sat on 18-7-1984 and again on 24-7-1984 and finally decided to reject the application of the respondent-Company under Section 13(2) of the Act on 17-9-1984. The BMRDA had no jurisdiction to pass any order under Section 13(3) of the Act on 17-9-1984, as the requisite period of 60 days provided by under Section 13(3) had expired by that time. It was held by Division Bench that the order dated 17-9-1984 refusing to grant permission passed by the Authority was illegal. The said order was passed beyond the statutory period of 60 days, therefore, permission shall be deemed to have been granted by the Authority in terms of Section 13(3) of the Act

Reasoning:
22. We fail to see, how the respondents can derive any support for their case from these observations of Salmon, L. J. That was a case where it was found that the valuation officer had prepared a valuation list of 31, 656 dwellings at Paddington erroneously. There was a prayer for certiorari to quash the list altogether. There was also another prayer for a writ of mandamus directing the valuation officer to prepare a new list. Lord Denning, M. R. held that if the valuation list was entirely quashed there will be chaos. Therefore, the existing list could remain until it was replaced by a new list, when the new list was prepared the old list will be quashed by writ of certiorari. Lord Denning was of the view that certiorari was not a necessary prerequisite toIn the case before us the decision taken by metropolitan Authority on the application of the respondent has been quashed. Direction has been given to dispose of the application afresh. This direction does not make any sense unless in reality there was an earlier order dealing with the application made by the respondent. It cannot be said that the Metropolitan Authority had not passed any order, erroneously or otherwise, within 60 days of the receipt of the application. The order that was passed may have become null and void in law but the fact of the matter is that an order had actually been passed, otherwise there would have been no question of issuance of a writ of certiorari for quashing of thatIn the instant case, there is no question of any inactivity. The appellant had passed an order within 60 days, which was ultimately quashed by the High Court. The deeming clause under Section 13(3) comes into operation only when the Metropolitan Authority fails to pass an order within a period of 60 days from the receipt of the application. But if an order is passed and that order is quashed by the appellate authority or by the High Court, the deeming clause does not become operative straightaway. The appellate order will now hold the field and fresh order will have to be passed in terms of the order of the appellate authority or the Court27. The last contention of Mr. Nariman was that the impugned order dated 17-9-1984 had been passed under Section 13(3) of the BMRDA Act. The Metropolitan Authority had no jurisdiction to pass any order dealing with the application made by the respondent under any other provision except Section 13(3). If the order is not under Section 13(3) then the respondent will have no right to appeal against that order28. There can be no dispute about this preposition. The consequential order passed by the Metropolitan Authority after it was quashed by the High Court must be treated as an order under Section 13(3) of the Act for the purpose of appeal and the limitation must be counted from the date of the fresh order. But that does not answer the question whether the time-limit for passing an order under sub-section (3) of Section 13 will apply to the fresh order which will now have to be passed. That question has been answered in the case of Pooran Mall referred to earlier in the judgment