Promoters & Builders Association Of ... vs Pune Municipal Corporation & Ors

3. The State of Maharashtra issued a directive under Section 37(1) of the Act to the Pune Municipal Corporation on 8.7.1993 to amend Development Control Rules of Pune city. The Pune Municipal Corporation then issued a notification in the Gazette on 30.9.1993 by which the process of modification was initiated and it was notified that the modification would be on the same lines as applicable in Greater Bombay. One of the proposed modifications was in Rule N.2.4.11 which was as under :

4. The State Government while sanctioning Rule N.2.4.11 introduced a departure from the Bombay Development Control Rules. Some other changes were also made by the State Government in the Rules which had been proposed by the Pune Municipal Corporation. Thereafter, some exchange of correspondence and meetings took place between the Pune Municipal Corporation and the State Government as regards the interpretation of the above Rule. The Chief Secretary of the Urban Development Department, Government of Maharashtra then sent a detailed letter to the Pune Municipal Corporation on 11.6.1998 regarding the correct interpretation of the notified Development Control Rules. Regarding Rule N.2.4.11 it was stated as under in the said letter :

5. In view of the clarification issued by the State Government, the Pune Municipal Corporation issued a circular on 20.7.1999 and with regard to Rule N.2.4.11 it was stated as under :

6. Promoters and Builders Association of Pune, a Society registered under the provisions of Societies Registration Act, filed Writ Petition No.5198 of 2001 against Pune Municipal Corporation and State of Maharashtra challenging the modified Development Control Rules, especially Rule N-2.3(A) and N.2.4.11 (a) and (b), wherein the principal relief claimed was that a writ of mandamus be issued commanding the respondents to the writ petition to implement Development Control Rule N-2.4.11(b) in a manner that the road area in respect of the plot, which is reserved for the road can be utilized being 0.4 FSI on the same plot and the balance unutilized FSI, if any, can be converted into TDR and can be used anywhere on a receiving plot to the extent of 0.4 FSI, in addition to the 0.4 FSI permissible on the receiving plot for amenities under Rule N-2.4.11(a) and direct the Municipal Corporation to forthwith dispose of the applications which had been submitted by the members of the petitioner Association in the light of said clarification. The writ petition was contested by the Pune Municipal Corporation and State of Maharashtra by filing counter affidavits. The High Court after considering the provisions of Section 37 of the Act and also of the Development Control Rules, allowed the writ petition on 23.4.2002. It will be useful to reproduce the findings recorded by the High Court and the relevant part of paras 18, 19 and 21 of the judgment of the High Court are reproduced below:

This view has been reiterated in Devender Pal Singh v. State (2003) 2 SCC 501 (para 16). This being the legal position, there is absolutely no ground for review of the judgment and order dated 5.5.2004. The review petitions are, therefore, liable to be dismissed.

c In all the cases, the TDR has been loaded/utilized and commencement certificate has been issued for the particular projects.

d In all the cases, the construction has taken place with sanction of Corporation.

The statement made by Mr. Makarand D. Adkar, Advocate, is accordingly taken on record.

14. The review petitions are dismissed, recording the submission on behalf of the Pune Municipal Corporation that the constructions mentioned in categories 1 to 4 above will not be treated to be in violation of clause (b) of D.C.R.-2.4.11.