Case: Janhit Manch &amp; Others Vs. State of Maharashtra &amp; Others

2. The parties in both the cases being common shall be hereinafter referred to as described in the transfer petition. Janhit Manch and another which had filed the PIL at the Bombay High Court are referred to as petitioners whereas, Shri Ram Urban Infrastructure Ltd.(SRUIL) is referred to as respondent No.6 and other respondents are referred to as described in transfer petition.3. The genesis of dispute is PIL No. 43 of 2012 filed by petitioners in the Bombay High Court. In PIL No.43 of 2012, petitioners have questioned the action of respondent No. 3 in respect of concessions granted for development of various buildings in the city of Mumbai i.e. concessions granted in respect of development of various buildings which consequently enabled the developers to amass additional areas under various heads, such as refuge areas, passages, flower beds, decks etc., free of Floor Space Index ("FSI"). The case of the respondent No.6 was specifically mentioned and challenged. It was pleaded that respondent No.6 against the permitted FSI of 54715.196 sq. mtrs. had used additional FSI of approximately 6355.58 sq. mtrs. under the guise of various heads such as refuge areas, passages, decks etc.4. The Bombay High Court vide its judgment dated 13.05.2013 decided the PIL No.43 of 2012. In its judgment, the High Court held that the refuge areas granted to respondent No.6 with respect to the said building was in utter excess of norms. Thus, Municipal Commissioner was directed to reexamine the issue of excess refuge area and tothe FSI. Petitioners filed SLP(C) No.20279 of 2013, challenging the judgment of the High Court dated 13.05.2013.5. The respondent No.6 had proceeded to construct a 56 storey building. Respondent No.6 also proposed to construct a public parking lot(PPL) of three Basements + Lower ground + Stilt + 15 Floors. Stop Work Notice was issued by Mumbai Municipal Corporation on 14.12.2011 to respondent No.6 to desist from continuing with construction of public parking lot. The said Stop Work Notice was challenged by respondent No.6 in Bombay City Civil Court by L.C. Suit No.2942 of 2011. After judgment of the High Court dated 13.05.2013, the respondent No.6 approached the Municipal Commissioner. The Municipal Commissioner passed an order on 12.09.2013. The Municipal Commissioner in his order observed that (i) Refuge areas would be provided free of FSI only to the extent of 4 per cent of the built up area it served in the said building; (ii) those areas in excess of requirements would be counted in FSI in accordance with National Building Code, 2005.6. Respondent No.6, aggrieved by the order dated 12.09.2013, filed a Writ Petition (c) No.2223 of 2013 before the Bombay High Court. The order of Civil Court dated 16.05.2013 whereby Stop Work Notice was set aside, was also challenged by Municipal Corporation of Greater Bombay in the High Court by filing a First Appeal No.884 of 2015.7. The petitioners SLP(C) No.20279 of 2013 was finally heard, in which separate and dissenting judgments were delivered on 25.04.2014, which mandated the SLP to be referred to a larger Bench. The petitioner had filed another PIL No.133 of 2015, where certain amendments in DCR were challenged. The Writ Petition filed by respondent No.6 being Writ No.2223 of 2013 was decided on 22nd, 25th and 27th January 2016 alongwith First Appeal No.884 of 2015.8. Municipal Commissioner was directed to hear the respondent No.6 and to decide what should be the reasonable refuge area in the said building. The order dated 12.09.2013 was confirmed in parts. The SLP(C) No.20279 of 2013 was listed on 11.03.2016 on which date, the Three Judge Bench disposed off the SLP holding that in view of judgment of the High Court dated 22nd, 25th and 27th, January 2016 no issue is alive, however, the liberty was granted to make a mention for recall of the order.9. The judgment of Bombay High Court dated 22nd, 25th and 27th January, 2016 was challenged by the respondent No.6 before this court in SLP(C)of 2016. This Court on 29.04.2016 has issued a notice in SLP of respondent No.6, however, no interim order was passed. The petitioners also preferred the SLP(C) CCof 2016, challenging the above judgment of the Bombay High Court. Petitioners also filed IA 6 of 2016 for recalling the Three Judge Bench order dated 11.03.2016, contending that several issues remain alive for adjudication. After the order of Bombay High Court dated 22nd, 25th and 27th January, 2016, respondent No.3 passed an order on 31.08.2016. Respondent No.3 inter alia heldThe areas provided on the external peripheral face of the flat be allowed as refuge area;(b) The refuge areas at the inside of the building at entrances of flats shall not be considered as refuge area;(c) The four full floors shown as refuge will not be taken as refuge; and(d) The structural columns falling in the above decided refuge areas can be allowed free of FSI.The order dated 31.08.2016 passed by respondent No.3 was challenged by the petitioners by filing PIL No.17 of 2017. High Court vide its order dated 24.02.2017 directed the respondent No.2 to file its affidavit in reply within three weeks and not to act upon the impugned order dated 31.08.2016 till the next date. Subsequently, matter was taken by the Bombay High Court for hearing on 17.03.2017. After hearing the counsel for both the parties, an order was passed by the Bombay High Court on 17.03.2017. Para No.4 to 7 of the order are to the followingthe subject matter of the present litigation is an order dated 31.08.2016 at "Exhibit C" (page 58) which is the order of the Municipal Commissioner of Greater Mumbai in pursuance of the directions of this Court dated 27.01.2016 in Writ Petition (c) No. 2223 of 2013.(5) Challenging the orders in Writ Petition (c) No.2223 of 2013, both the parties i.e. the petitioners and respondent No. 6 have filed Special Leave Petitions. The petitioners before us have filed Special Leave Petition No.13527 of 2016, and respondent No.6 has filed Special Leave Petition Nos.10704 to 10705 of 2006. Admittedly no interim orders are issued in the above SLPs before the Apex Court. Meanwhile, in pursuance of the directions in Writ Petition (c) No.2223 of 2013, the Commissioner has passed an order dated 31.08.2016 which is theof the present Public Interest Litigation. Since the larger issues are pending before the Apex Court pertaining to the very same alleged illegalities committed by respondent No.6 so far as the property in question, both the parties are in ad idem with the submission that the impugned order of the Commissioner dated 31.08.2016 also can be challenged before the Apex Court since that will put an end to the controversy between the parties once for all.6. In that view of the matter, the parties are at liberty to approach the Apex Court with necessary application for transferring the present Public Interest Litigation also to be tagged alongwith the Special Leave Petitions pending before the Apex Court.7. In order to enable the parties to take appropriate course of action as stated above, we continue the interim order dated 24.02.2017 for a period of four weeks.In view of the order of the Bombay High Court dated 17.03.2017, the Transfer Petition has been filed by the petitioners in this Court.12. SLP(C)Nos.1174911750 of 2017have been filed by respondent No.6, questioning the interim order passed by the Bombay High Court dated 24.02.2017 and 17.03.2017 in PIL No.17 of 2017.

Reasoning:
17. The important issues, pertaining to refuge area, FSI are engaging the attention of this Court. Provisions of the Development Control Regulations for Greater Mumbai, 1991 are under consideration. The developments carried out by builders in buildings, which is to house hundreds of people are not question of rights of developers alone. The development regulations and various other statutory rules enjoin performance of various statutory duties and statutory obligations in respect to development of buildings, which are to house hundreds of occupants. The life and safety of occupants is a matter of public importance and the issues raised relate to public concern & safety which need to be decided at the earliest.After having considered the submissions of the parties and perusing the material brought before us, we are of the opinion that issues which have been raised in the SLP(C) CCof 2016 filed by the petitioners and SLP(C)of 2016 filed by respondent No.6 have bearing on the PIL No.17 of 2017 and it is in the interest of all the parties that such issues be decided finally, when the issues have already been entertained by this Court, as noted above.21. Learned counsel for both the parties although have raised various submissions touching on the merits of issue but at this stage when we are considering only the petition for transfer of PIL No.17 of 2017 as well as the challenge to only interim orders passed by Bombay High Court in PIL No.17 of 2017, we refrain to express any opinion on various aspects relating merits of the case. The observations made by us in this order are limited for deciding the transfer petition and SLPs before us, such observations may not have any bearing on the issues when they are finally heard and decided.22. It is further relevant to notice that the SLP(C) No.20279 of 2013, which was filed by petitioner against the order dated 13.05.2013 of the Bombay High Court in PIL No.43 of 2012, which was disposed of by Three Judge Bench on 13.05.2013, an application on I.A.6 has also been filed by the petitioners to recall the order and determine the issues. No order has yet been passed in I.A.6 of 2016, which application is waiting for consideration by Three Judge Bench.