Jayant Achyut Sathe vs Joseph Bain D'Souza & Ors

2. Challenge in these appeals is to the judgment of the Bombay High Court which while holding that Regulation 33 (7) of the Development Control Regulations, 1991 (in short the `Regulations') for the city of Mumbai as amended in the year 1999 does not suffer from any illegality, further observed that the same applies only to dilapidated buildings of `A' category which satisfy the requirement and those declared prior to the monsoon of 1997 under 3rd proviso are covered under Regulation 33(7) and are entitled to extra "Floor Space Index"

3. The conclusions essentially are as follows:

4. The background facts in a nutshell are as follows:

The High Court while upholding the validity of Regulation 33(7) accepted some of the prayers of the writ petitioners which are led to the filing of the appeals.

The question is not whether it is unconventional by the standard of the extant practices, but whether there was something in the law rendering it impermissible. There is, no doubt, a degree of public accountability in all governmental enterprises. But, the present question is one of the extent and scope of judicial review over such matters. With the expansion of the State's presence in the field of trade and commerce and of the range of economic and commercial enterprises of Government and its instrumentalities there is an increasing dimension to governmental concern for stimulating efficiency, keeping costs down, improved management methods, prevention of time and cost overruns in projects, balancing of costs against timescales, quality 32 control, cost-benefit ratios etc. In search of these values it might become necessary to adopt appropriate techniques of management of projects with concomitant economic expediencies. These are essentially matters of economic policy which lack adjudicative disposition, unless they violate constitutional or legal limits on power or have demonstrable pejorative environmental implications or amount to clear abuse of power. This again is the judicial recognition of administrator's right to trial and error, as long as both trial and error are bona fide and within the limits of authority."

26. It is of significance to note that in the writ petitions filed there was no challenge to Regulation 33(7). Only incentive FSI was challenged. So far as Regulation 33(7) is concerned, there will be no acquisition in Chapter VIII. Stress is on spending 35 money out of the funds and of acquisitions. Chapter VIII-A essentially deals with occupiers. Acquisition and the Board's role is that of certification. Under Regulation 33(7) the occupier and the landlord are involved. There is no acquisition and there is no government fund utilized. There is a Transferable Development Right (in short `TDR') and the concept of incentive FSI.

27. It is the case of the appellant that the TDR is utilized to recover the money spent for subsidizing other constructions.

28. Certain other aspects also need to be noted.

37. It would be seen that with respect to reconstruction of buildings both Chapters VIII and VIIIA require the building to be acquired by the Board for the reconstruction in terms of Sections 92 and 103B (3). This is not the case with Regulation 33 (7).

39. The challenge to the restriction of five feet open space (1.5 metres) is hopelessly delayed and barred by time as inter alia:

43. Above being the position, the inevitable conclusion is that the High Court was not justified in reading additional requirements into Regulation 33(7) after holding the same to be valid. The appeals are allowed but in the circumstances with no order as to costs.

44. In view of the order passed in Civil Appeal No.2970/2006 and other connected appeals, no order is necessary to be passed in contempt petition.