Esha Ekta Appartments Chs Ltd.& Ors vs Mun.Corp.Of Mumbai & Ors

4. The Municipal Corporation of Mumbai (for short, ‘the Corporation’) leased out the plot in question, of which land use was shown in the development plan as ‘General Industrial’ to M/s. Pure Drinks (hereinafter referred to as, ‘the lessee’) in January, 1962. The lessee constructed a factory and started manufacturing cold drinks under the brand name ‘Campa Cola’. After about 16 years, the lessee engaged an architect for utilizing the land for construction of residential buildings. The architect made an application under Section 337 of the Mumbai Municipal Corporation Act, 1888 (for short, ‘the 1888 Act’) for sanction of plans of the proposed residential buildings. The same was rejected by the Planning Authority vide order dated 31.7.1980 on the ground that the required NOCs had not been obtained and the Competent Authority had not given exemption under the Urban Land (Ceiling and Regulation) Act, 1976. Another application made by the architect was rejected by the Planning Authority on similar grounds.

5. In view of the above development, the lessee made an application to the Corporation for change of land use from ‘General Industrial’ to ‘Residential’. The latter forwarded the same to the State Government along with a proposal for modification of the development plan of the area. The State Government accepted the proposal of the Corporation and passed an order dated 31.12.1980 under Section 37(2) of the Maharashtra Regional and Town Planning Act, 1966 (for short, ‘the 1966 Act’) in respect of 13049 sq. meters leaving the balance 4856 sq. meters for industrial use. This was subject to the condition that development shall be as per the Development Control Rules for Greater Mumbai, 1967 (for short, ‘the D.C. Rules’) and other relevant statutory provisions. Thereafter, the architect engaged by the lessee submitted revised plans for construction of residential buildings. The Planning Authority granted approval on 8.6.1981 for construction of 6 buildings comprising basement, ground and 5 upper floors. The commencement certificate was issued on 10.6.1981. On 27.6.1981, the Additional Collector and Competent Authority granted permission under Section 22 of the Urban Land (Ceiling and Regulation) Act for demolition of the structure and redevelopment in accordance with the provisions of the D.C. Rules.

11. In the interregnum, the lessee and the developers/builders engaged a new architect, namely, Shri Jayant Tipnis. He submitted another set of plans on 3.6.1985 proposing 7 new buildings and requested for withdrawal of stop work notice. The Planning Authority rejected the new plans on the ground that the construction had been raised in gross violation of the sanctioned plan. Thereupon, Shri Jayant Tipnis sent notice dated 9.8.1985 to the lessee that no work should continue till the amended plans are sanctioned. The Executive Engineer of the Corporation sent letter dated 28.9.1988 to Shri Jayant Tipnis with a copy to the lessee and asked them to inform the developers/builders not to proceed with the work till the stop work notice was withdrawn. In turn, Shri Jayant Tipnis wrote to the developers/builders that they should not continue the construction. He also informed the Corporation about the intimation sent to the developers/builders and stated that despite intimation they had illegally and unauthorisedly carried out the construction work by utilizing excess Floor Space Index (FSI).

all the Developers stating that the STOP WORK notice issued by the Brihanmumbai Mahanagarpalika against the subject work was not yet withdrawn by them but it was observed they continue to carry out the work of one way or other nature of the proposed structure which was in violation of the directives issued by EEBP (City) to them, for which responsibility solely rested with them. We, therefore, instructed them to stop the work being carried out by them on all fronts forthwith and if however, they continued any work at site henceforth it would be entirely at their risk and consequences and requested them to confirm to us in writing that the work was stopped by them completely immediately on receipt of the said letter. Copy of the said letter was endorsed to EEBP (City) to note the above instructions issued to the Developers.

20. Shri Jayant Tipnis challenged the aforesaid order by filing an appeal under Section 47(1) of the 1966 Act and prayed that the Corporation be directed to reconsider the proposal under Development Control Regulations for Greater Mumbai, 1991 (for short, ‘the 1991 Regulations’) and regularize the FSI consumed in constructing the buildings by charging premium. The Chief Minister of the State, who was also in-charge of the Department of Urban Development, dismissed the appeal vide order dated 4.6.2010, the relevant portions of which are extracted below:

23. Faced with the threat of demolition of the buildings, the housing societies and some of their members filed Long Cause Suits for quashing the notices issued under Section 351 of the 1888 Act and order dated 3/8.12.2005. They pleaded that the buyers of the flats were not aware that the buildings had been constructed in violation of the sanctioned plan. They also filed applications for restraining the Corporation from demolishing the illegal portions of the buildings. Initially, the trial Court stayed the demolition of the illegal construction but, after hearing the parties, the applications for temporary injunction were dismissed on the premise that the developers/builders had constructed a number of floors without obtaining permission from the Planning Authority, that too, despite the stop work notice issued under the 1888 Act and that the application made for regularization of the illegal construction had been rejected by the Corporation. The trial Court rejected the contention of the members of the housing societies that they had purchased the flats without knowing that the same were illegally constructed by the developers/builders. The trial Court noted that the architect had repeatedly told the developers/builders that construction of buildings beyond the sanctioned plan was illegal and the members of the housing societies were very much aware of this fact.

35. In our view, the reasons assigned by the Deputy Chief Engineer and the Appellate Authority are in consonance with the law laid down by this Court in Suresh Estates Private Limited v. Municipal Corporation of Greater Mumbai (supra). The facts of that case were that after purchasing a plot measuring 8983 sq. mtrs. situated at Dr.Babasaheb Jaykar Marg, appellant Nos. 1 and 2 submitted plans to develop the same by constructing a luxury hotel in terms of the D.C. Rules. In the application, the appellants mentioned that they are entitled to additional FSI as per Rule 10(2) of the D.C Rules. The Corporation made a recommendation to the State Government that in view of the CRZ notification and the D.C. Rules, additional FSI be granted to the appellants. The Ministry of Environment and Forest sent communication dated 18.8.2006 to the Principal Secretary, Urban Development Department, Government of Maharashtra clarifying that the D.C. Rules, which existed on 19.2.1991 would apply to the areas falling within the CRZ notification and the word ‘existing’ means the rules which prevailed on 19.2.1991. It was also mentioned that the draft regulations of 1989, which came into force on 20.2.1991 would not apply. At that stage, the appellants filed a writ petition before the High Court with the complaint that the Corporation had not communicated its decision within 60 days. The same was disposed of by the High Court with a direction to the State Government to decide the application of the appellants within six weeks. Before this Court, it was argued on behalf of the Corporation that the D.C. Rules would not apply to the development permission sought by the appellants and the 1991 Regulations are applicable in the matter. According to the Corporation, the 1991 Regulations do not provide for additional FSI for the proposed hotel project. It was further argued that the restrictions contained in the CRZ notification will be attracted because the plot is situated in CRZ area. This Court noted that the 1991 Regulations were notified on 20.2.1991 and came into force on 25.3.1991 whereas CRZ notification was issued on 2.2.1991 and observed:

10a) The Developers concerned with the said Development were kept fully informed by us about the STOP WORK notice issued on the proposal on 24.11.1986 that no work could be carried out at site. On the very same day of receipt of STOP WORK notice on 24.11.1986 we instructed all the Developers concerned to pay the penalty to BMC and also to stop the work of the project forthwith otherwise the plans would not be processed further with the said authority. On receipt of the EEBP letter dated 02.06.1990, we have issued final instructions to the Developers / Lessee to stop the work on the project forthwith and that the responsibility for such work carried out but not cleared by the said authority would be on them We further stated that we were not aware of any occupation already obtained by Esha Ekta Apartment Cooperative Housing Society and therefore we did not undertake any responsibility for anything contrary to the plans submitted by us to EEBP (City) Office, if found, carried out by the said Society through their Developers. We clarified that we had not been involved at all by the said Developers and, therefore, did not agree with any of their statement mentioned in the said letter.

45. In view of the above discussion, we hold that the petitioners in the transferred case have failed to make out a case for directing the respondents to regularize the construction made in violation of the sanctioned plan. Rather, the ratio of the above-noted judgments and, in particular, Royal Paradise Hotel (P) Ltd. v. State of Haryana and Ors. (supra) is clearly attracted in the present case. We would like to reiterate that no authority administering municipal laws and other similar laws can encourage violation of the sanctioned plan. The Courts are also expected to refrain from exercising equitable jurisdiction for regularization of illegal and unauthorized constructions else it would encourage violators of the planning laws and destroy the very idea and concept of planned development of urban as well as rural areas.

46. In the result, the appeals and the transferred case are dismissed and it is declared that there is no impediment in the implementation of notices issued by the Corporation under Section 351 of the 1888 Act and order dated 3/8.12.2005 passed by the competent authority. The Corporation is expected to take action in the matter at the earliest.

47. We also direct that the State Government and its functionaries/officers as also the officers/employees of the Corporation shall not put any hurdle or obstacle in the implementation of notices issued under Section 351 of the 1888 Act.

48. It is needless to say that the flat buyers shall be free to avail appropriate remedy against the developers/builders.

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