SHREE RAM URBAN INFRASTRUCTURE LTD. & ANR. versus STATE OF MAHARASHTRA & ORS.
[2019] 16 S.C.R. 993, Supreme Court of India, 2019
Outcome: Disposed off
Segment: Body
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SHREE RAM URBAN INFRASTRUCTURE LTD. & ANR.
v.
        STATE OF MAHARASHTRA & ORS.
(Civil Appeal Nos. 8265-8266 of 2019)
OCTOBER 24, 2019
[ARUN MISHRA AND VINEET SARAN, JJ.]
Urban Development:
Town Planning –  Permission to construct residential building
to appellant-company – Commencement Certificate granted under
the provisions of Maharashtra Regional and Town Planning Act,
1966 read with Development Control Regulations for Greater
Bombay, 1991 (DCR) – Thereafter incorporation of clause 24 to
Regulation 33 of 1991 Regulations providing for permission to
develop multi-storeyed Private Parking Lots (PPL) – On handing-
over of the PPL to the Corporation, incentive FSI was to be allowed
on the land belonging to the private owners –  Appellant-Company’s
application for construction of PPL approved upto 15 floors –
Incentive FSI of the PPL was to be used by the appellant -company
in the main residential building – Though commencement certificate
for PPL  was given only for upto plinth level, the appellant-company
constructed all 15 floors – Appellant-company completed the
construction of main residential building upto 56 floors, though
commencement certificate for that was only upto 43rd floor –
Thereafter the Corporation issued a Circular on 22.6.2011
restricting the PPL to two basements, ground and four upper floors
– Notice u/s. 51 and s.354A of 1966 Act seeking revocation of
commencement certificate and for stopping the work of PPL beyond
plinth level –
Suit by the appellant-Company – Civil Court decreed
the suit declaring the stop-work notice as illegal on the ground that
construction of PPL above the plinth level was under deemed
permission in terms of Regulation 6(4) of DCR – In appeal, High
Court set aside the decree holding that construction of PPL above
plinth level and construction of residential building above 43rd floor
was illegal since they were constructed without obtaining
commencement certificate (s)  and the Court directed the appellant
to apply for regularisation of these construction – PIL was filed
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before High Court challenging construction of residential building
and construction of PPL above plinth level – The High Court in the
PIL held that construction of PPL was not illegal and that since the
FSI granted in respect of refuge area was excessive, Commissioner
was directed to re-examine the issue – On direction of High Court
in PIL, Commissioner passed order dated 12.09.2013 – The order
dated 12.09.2013 was challenged by the appellant before High Court
and also sought direction to the Commissioner to take over possession
of PPL and to endorse the commencement certificate for residential
building upto 56 floors –The Commissioner passed order dated
31.08.2016 deciding the refuge area – Subsequently Notice u/s. 51
of 1966 Act was withdrawn by the Corporation – Another PIL was
filed challenging the order dated 10.11.2016  whereby the
Corporation had held that since the construction of PPL had
proceeded substantially on the date of notice u/s. 51, the Planning
Authority cannot revoked or modify the permission – The PILs have
been transferred to Supreme Court – Held: The construction of the
main building as well as the PPL were  as per the sanctioned plan –
The construction of PPL beyond plinth level was under deemed
permission under Regulation 6(4) of 1991 Regulations – The refuge
area as determined by the Commissioner by order dated 31.08.2016
does not call for interference – Corporation is directed to take over
possession of PPL and to proceed to decide about the 13 floors
(44th to 56th floors) of the residential building – Maharashtra
Regional and Town Planning Act, 1966 – ss. 48 and 51 –
Development Control Regulations for Greater Bombay, 1991 – Regn.
6(4), 5(6) and 33 (24).
Partly allowing the appeal and dismissing the Transfer
petitions, the Court
HELD:  1.1  It is provided in the first Proviso to  section
48 of  Maharashtra Regional and Town Planning Act, 1966 that
permission for development or deemed permission shall remain
in force for a period of 1 year from the date of receipt of such
grant, and thereafter it shall lapse. It can be extended from year
to year, but such extended period shall in no case exceed three
years. The second proviso, as inserted by way of amendment of
MRTP Act  in 2007,  provides that if the development is not
completed up to plinth level or where there is no plinth, up to the
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upper level of basement or stilt, as the case may be, within the
period of 1 year or extended period, under the first proviso, it
shall be necessary for the applicant to make application for fresh
permission. The main Section 48 does not deal with the situation
where construction has been made up to plinth level or where
there is no plinth, up to the upper level of basement or stilt, as
the case may be, and neither first proviso deals with the situation
above. The interpretation of the second proviso is clear that in
case construction has been made up to the plinth level or where
there is no plinth, up to the upper level of the basement or stilt,
within 4 years, it shall not be necessary for the applicant to make
application for fresh permission for development in the light of
the second proviso to Section 48. [Para 40] [1018-D-H]
1.2 Regulation 5(6) of Development Control Regulations
for Greater Bombay, 1991 (DCR) deals with the commencement
of the work. It does not deal with the situation mentioned in the
second proviso to Section 48 of the Act. Regulation 5(6) provides
that on expiry of one year if the work has not already commenced
and such renewal can be done for three consecutive terms of one
year each. The Regulation has to be interpreted in tune with the
provisions contained in Section 48, as amended. It cannot curtail
the ken of Section 48. Thus in case construction has been done
up to the plinth level within four years from the date of
development permission, it would not be necessary to obtain it
afresh. The finding of the High Court, to the contrary, is set aside.
[Para 41] [1019-A-B]
1.3 It is apparent in the present case that in principle the
approval had been granted to raise the Public Parking Lot (PPL).
On 18.6.2010 at that time, Regulation 33(24) of DCR there was
no restriction on the floors of PPL that came to be introduced in
2014 before that the completion of PPL has taken place. The
PPL has been validly constructed under deemed permission.
Additional FSI would be available as soon as the Corporation
takes over the PPL. The High Court had directed the Corporation
to decide the fate of 13 floors beyond the 44th floor in the impugned
order concerning which the decision has to be taken as ordered
by the High Court to the Corporation. The fact remains that
residential building, as well as the PPL, have been constructed
as per sanctioned plan, and now a final decision has to be taken
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by the Corporation regarding 44 to 56 floors as ordered by the
High Court. The High Court rightly held that construction was
not illegal as the development permission was granted, the plan
was sanctioned for PPL as well as for the residential building.
[Para 44] [1020-D-F]
1.4 It is apparent from Regulation 6(4) of DCR that the
purpose of the intimation to be given by licensed surveyor,
engineer, structural engineer or supervisor or his architect in
the form of Appendix XVI to the Commissioner on completion of
work up to plinth level is to enable the Commissioner to inspect
to ensure that the work conforms to the sanctioned plans. It is
the Commissioner’s satisfaction that work conforms to the
sanctioned plans, not that of Architect of builder. It is for the
Commissioner to satisfy himself,  he has to inspect the work jointly
with the licensed technical person or Architect within 15 days
from the receipt of such notice, and thereupon he has to form an
opinion whether the work conforms to the sanctioned plans and
thereupon he is required to give or refuse permission for further
construction as per the sanctioned plans. It is also provided under
Regulation 6(4) of DSR that if within the period of 15 days, the
permission is not refused, it shall be deemed to have been granted
provided the work is carried out according to the sanctioned
plans. Thus, it is necessary to decide whether to give permission
or to refuse after
inspection within 15 days of the notice. However,
it is necessary for deemed permission to come into play; work
of foundation up to the plinth level had been carried out
according to the sanctioned plans. [Paras 52 and 53] [1024-F-H;
1025-B]
1.5 When Form XVI and the intimation submitted by
appellant’s Architect on 7.5.2011 is compared, it becomes clear
that notice given is rightly addressed to the Executive Engineer.
The subject mentioned is the development of PPL as per the
provisions of Regulation 33(24). The requirement that
construction up to plinth/column up to the plinth level has been
completed, in accordance with the approved plan, fulfils the
requirement of the first part of the format Appendix XVI
mentioned before the word “date.” After the word “date”, the
requirement in the prescribed format is that “the work has been
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completed under my supervision” and “in accordance with the
sanctioned plan.” The latter portion, in accordance with the
sanctioned plan, has been mentioned in so many words. The only
difference is the format prescribes that the work has been done
“under my supervision and in accordance with the sanctioned
plan.”. It has been mentioned that “we have complied (sic –
completed) work up to plinth as per approved plans.” The
architect, by the aforesaid expression, is owning that he has
completed the work as per the approved plans. He owns
responsibility upon himself that he has ‘complied with’ or
‘completed the work’ up to the plinth level as per approved plans,
which would obviously mean that it has been done under his
supervision. [Paras 56 and 57] [1027-B-F]
1.6 In  the suit filed by the appellant in the plaint, it has
been stated that the plaintiff’s Architect has served notice on
7.5.2011 under Regulation 6(4) of DCR. No reply or any rejection
was received within 15 days from the corporation/defendants. In
written statement, the Corporation has nowhere denied that they
received the notice dated 7.5.2011, nor it is denied that there
was deemed permission, after the lapse of 15 days of notice under
DCR 6(4).  Thus, in the civil suit, for want of denial, no issue was
framed on the aspect of deemed permission. Apart from that, the
witness of the Corporation has admitted in the cross-examination
that the letter issued by the plaintiff to the Corporation for
obtaining further commencement certificate for the construction
of public parking building, was received by the Corporation and
that the Corporation did not reply to the said letter. It is not the
case anywhere set up by the Corporation that the construction
up to plinth was not as per the sanctioned plan. Thus, the deemed
permission has come in force under Regulation 6(4), on expiry of
15 days from the service of notice dated 7.5.2011.
[Paras 58 and 59] [1028-D; 1029-C]
1.7 It was also not the case set up by the Corporation that
the notice dated 7.5.2011 was illegal, and it did not conform to
Form XVI as prescribed under Regulation 6(4). The factum of
the receipt of the notice has been admitted. The submission raised
in the PIL that notice dated 7.5.2011 is a doubtful document is
belied by the record of the Corporation and the admission made
by the witness of the Corporation. The notice dated 7.5.2011 was
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available on the file of the Corporation, but it was not replied.
The Division Bench of the High Court while deciding the PIL
called for the inward register to verify whether the Corporation
received the notice. It is apparent that the Division Bench of the
High Court has seen the inward register also and there is a
corresponding entry on 7.5.2011 as regards the acceptance of
notice. It seems to have been made in the usual course. In the
PIL no such plea was taken that the notice was not in Form XVI,
and it was illegal. In First Appeal the Corporation did not challenge
the finding of the civil court, nor did it raise the ground that owing
to the failure to submit a notice in Form XVI, the letter dated
7.5.2011 cannot be treated as valid intimation and as such deemed
permission did not accrue. The main ground raised in PIL was
about FSI, and concerning public car parking proposal. In the
special leave petition preferred against the decision of the High
Court in PIL, this ground was not raised, nor was it raised before
the High Court in the PIL. Thus, it was not considered appropriate
by this Court to reopen the matter and reconsider it. Thus, all
the issues were left open. They were only those raised earlier in
the PIL by Janhit Manch. It is also pertinent to mention that in
compliance of the order passed by the High Court on 13.5.2013,
the Corporation has passed order on 12.9.2013, before filing the
First Appeal in
the High Court, in which the Commissioner of
the Corporation has clearly held that in view of notice dated
7.5.2011 as per Regulation 6(4), the deemed permission came
into effect on lapse of 15 days. [Paras 60, 61, 62 and 63] [1029-G-
H; 1030-A-F-H; 1032-B-H; 1033-A-B]
1.8 The principle of constructive res judicata bars the
Corporation and  the petitioner in PIL to take somersault and
take a different stand in the subsequent litigation and all the
available pleas, which could have been taken in previous civil
suit and PIL, ought to have been raised, otherwise raising of
them in subsequent lis.  It is not open to the parties to take a
different stand at different stages. In the instant matter, these
questions cannot be taken up by the petitioner in PIL and the
Corporation has not come up in the appeal against the decision
dated 13.5.2013 of the High Court and has complied with the
order bypassing the order dated 12.9.2013.  As against the
subsequent decisions taken by the Corporation according to the
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impugned judgment and order, Janhit Manch is before this Court.
[Paras 64 and 65] [1033-C-F]
1.9 Thus the finding of the High Court concerning the
illegality of the notice dated 7.5.2011 is not sustainable on merits.
There was substantial compliance with Form, and the purpose of
giving notice is only to enable the Commissioner to inspect and
ensure that the construction raised is as per the sanctioned plan.
There is admission made by the witness of the Corporation that
the entire construction is as per the sanctioned plan and since
the Commissioner failed to inspect after notice, thus deemed
permission came into being; as such, it was open to the appellant
to raise the construction of PPL up to 16th floor. There was no
illegality in the same. [Para 66] [1033-G-H; 1034-A]
1.10 Absolutely wrong facts had been mentioned in the
inventories, which are contradicted by the facts mentioned in the
notice for demolition and also by the minimum time required for
construction of each floor. Thus, no reliance can be placed on the
inventory dated 22.7.2011, and stop work notice dated 16.7.2011.
[Para 70] [1036-D-E]
1.11  The present case reflects some severe kind of rivalry
and distortion of facts. There was an attempt made to ensure that
the building is delayed or is demolished by way of filing the PIL
one after the other, taking different grounds at different stages,
many interventions have been filed. The Human Rights Federation
had also attempted to intervene in
this Court. Though earlier, a
PIL, which was filed by it on 9.5.2014, was dismissed as withdrawn
on 7.11.2014 to approach an appropriate forum by way of filing
appropriate application/representation. The said intervenor also
filed an SLP before this Court challenging the impugned judgment
and orders dated 22, 25, 27.1.2016 passed by the High Court.
This Court has rejected the prayer, dismissed the SLP filed by
the petitioner to avail of any other remedy. After that, the
intervention application has been filed.  The intervenor cannot
enlarge the scope of PIL. Therefore, the intervention application
filed on behalf of the said Federation is rejected. [Para 71] [1036-
H; 1037-A-C]
1.12 The provisions of  Regulation 33(24) containing no
restriction on the number of floors of PPL, came into force on
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20.10.2008. The development permission had been granted to
the appellant in the year 2010, when Regulation 33(24) of DCR
was in vogue. Development permission has been granted on
18.6.2010 after 1 year 10 months and thereafter commencement
certificate had also been granted on 1.10.2010 with respect to
PPL and notice under which deemed permission accrued under
DCR 6(4) had been served on 7.5.2011 by the Architect.  Once
deemed permission accrued to the appellant on lapse of 15 days,
the construction had been completed in 2012 before the
amendment was made in the Regulations in 2014. The order of
regularisation was not necessary because of deemed permission.
Thus, the High Court has rightly held that the decision of the
Corporation applying the Circular dated 22.6.2011 was
impermissible as it did not have the force of law, and it stood
quashed by the High Court in other cases.  It could not be said
that the Circular of 2011 was supplementary to Regulation 33(24)
of DCR. It was clearly in derogation to it and could not have
prevailed over a statutory provision. [Paras 74 and 75] [1038-B-
E]
1.13 The provisions of Section 337 do not restrict the ambit
and scope of Regulation 6(5) of DCR. Initial permission had been
obtained for development, and during construction, further
variation could have been made. The provision of Section 346 is
of no help as, at no point in time, the development plan had been
disapproved. The
question of modifying disapproval is not
germane. [Para 78] [1039-E-F]
Kohinoor CTNL Infrastructure Co, Pvt. Ltd. & Anr. v.
The MCGM & Ors. (2013) 3 BCR 410; Suresh Estates
Pvt. Ltd. & Ors. v. Municipal Corporation of Greater
Mumbai & Ors. (2007) 14 SCC 439 : [2007] 13 SCR
882 – referred to.
2.1  The determination of the refuge area was done by the
CFO, who is the competent and technical authority. The decision
of the CFO has been revisited by 3 successive Commissioners
and has been confirmed while approving the sanctioned plan
merely because some apprehension was raised about possible
misuse of the refuge area. It is impermissible to revisit the said
decision.  Based on possible misuse, the planning permission
cannot be questioned nor can be revoked. [Para 81] [1042-B-D]
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Indore Municipal Corporation & Anr. v. Dr. Hemalata
& Ors. (2010) 4 SCC 435 – relied on.
2.2 In the order that has been passed by the Municipal
Commissioner pursuant to the impugned judgment passed by the
High Court, re-determining the refuge area, it has been reduced
to 23% only. The CFO has considered the higher requirement of
building and providing a separate refuge area for each of the flat
that is to say that four refuge areas on each floor, one attached to
each flat, has been approved by the CFO and the Corporation.
The permission was granted way back in the year 2006 and the
inspection note dated 11.11.2011 indicates that the construction
of the residential building had been carried out up to a height of
180 meters i.e., 36th floor, the permission was granted in 2006
and commencement certificate had also been issued from time
to time. The construction of the residential building had been
raised to the 36th floor in 2011, and Janhit Manch awakened first
time to file PIL No. 43/2012 in the High Court. Thus, it was a
belated petition. For fire safety, with respect to the refuge area,
the view of the Fire Safety Officer has to prevail not ipse dixit
whether it would be appropriate to have more area or the lesser
cannot be said to be acceptable which appears to be a hang-over,
the objection appears to be more the outcome of some grudge
harboured by unknown hands behind Janhit Manch.
[Para 83] [1043-C-F]
2.3  The objections have been raised on behalf of
Janhit
Manch concerning the height of service floor and elevation
features like flower beds, ornamental projection, servant toilets,
and structural columns concerning which the Commissioner,
Municipal Corporation had given in extensive details the reasons
for the decision rendered by it. This Court is not an expert in the
field of determination of refuge area and therefore, when
Corporation and Chief Fire Officer had granted permission, it
cannot be said that any tremendous public purpose is going to be
served by entertaining the belated objections which appear to be
the outcome of some business rivalry between warring groups.
The order passed by the Municipal Commissioner dated
31.8.2016 with respect to refuge area cannot be said to be illegal
or arbitrary in any manner in the facts and circumstances of the
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case, mainly due to the fact that permission had been granted by
the CFO as well as the corporation which has been questioned
belatedly. [Para 84] [1043-G-H; 1044-A-B]
T. Vijayalakshmi & Ors. v. Town Planning Member &
Anr. (2006) 8 SCC 502 : [2006] 7 Suppl.  SCR 534;
Pune Municipal Corporation & Anr. v. Promoters &
Builders Association & Anr.(2004) 10 SCC 796 :
[2004] 2 Suppl. SCR 207 ; Godrej and Boyce
Manufacturing Co. Ltd. v. State of Maharashtra & Ors.
(2009) 5 SCC 24 : [2009] 1 SCR 1016 – referred to.
3. There was deemed permission for PPL under Regulation
6(4) as per notice of Architect dated 7.5.2011. Therefore, it cannot
be said that the order passed by the Additional Municipal
Commissioner dated 10.11.2016, deciding the show-cause notice
dated 29.11.2011 and holding that the construction of the PPL
had substantially progressed, and as such, the entire PPL can be
regularised, is contrary to law. Moreover, it is not necessary to
go into the question of whether the notice dated 29.11.2011
survives or not for the decision, as it has been held that there
was deemed permission. Thus, there was no question of
regularisation of the PPL.[Paras 85 and 86] [1044-F-H]
Muni Suvrat-Swami Jain S.M.P. Sangh v. Arun
Nathuram Gaikwad & Ors. (2006) 8 SCC 590 : [2006]
7 Suppl.  SCR 118 – referred to.
4. The order of the High Court is set aside in part and the
finding recorded by the High Court that no deeming permission
accrued under Regulation 6(4) of Development Control
Regulations, 1991 are also set aside. Deemed permission
accrued, and concerning the determination of refuge area as per
order dated 31.8.2016 passed by the Municipal Commissioner,
no interference is called for. Order dated 31.8.2016 passed by
the Municipal Commissioner regarding the refuge area is upheld.
Petitions filed by Janhit Manch deserve dismissal.  The
Corporation is directed to take over PPL and to proceed further
do decide concerning 13 floors, i.e. 44 to 56 floors of the
residential building. [Paras 89 and 90] [1045-C-E]
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Case Law Reference
(2013) 3 BCR 410
referred to
Para 17
[2006] 7 Suppl. SCR 118
referred to
Para 27
[2007] 13 SCR 882
referred to
Para 29
[2006] 7 Suppl. SCR 534
referred to
Para 29
[2004] 2 Suppl. SCR 207
referred to
Para 80
[2009] 1 SCR 1016
referred to
Para 80
(2010) 4 SCC 435
relied on
Para 81
CIVIL ORIGINAL/APPELLATE JURISDICTION : Civil
Appeal Nos.8265-8266 of 2019.
From the Judgment and Order dated 22/25/27.01.2016 of the  High
Court of Judicature at Bombay in First Appeal No. 884 of 2015 and Writ
Petition No. 2223 of 2013.
With
Civil Appeal Nos. 8267-8272 of 2019,
Transferred Case (Civil) No.271 of 2017 and Transferred Case
(Civil) No.6 of 2018.
Atmaram N.S. Nadkarni, ASG, R. P. Bhatt, Shekhar Naphade,
Huzefa Ahmadi,  C.U. Singh, Arvind Nayar, Neeraj Kishan Kaul, Pinaki
Mishra, Sr. Advs.,  Mrs. Priti Purandare, S. Sukumaran, Anand Sukumar,
Bhupesh Kumar Pathak, Ms. Meera Mathur, Ms. Garima Prashad, Lalit
Kataria, R. N. Karanjawala,  Ms. Ruby Singh Ahuja, Ms. Deepti Sarin,
Shravan Sahny, Sanjeet Ranjan, Utkarsh Maria, Mrs. Manik Karanjawala
(for M/s. Karanjawala & Co.),  Ms. Anuradha Dutt, Ms. B. Vijayalakshmi
Menon, Ms. Fereshte D. Sethna, Ms. Ekta Kapil, Anirudh Bakhru,
N. Nihal Rao, Nishant Ramakantrao Katneshwarkar, Devashish Bharuka,
Kunal Verma, Ms. Sarvshree, C. S. Mishra, Sushil A., Mithum Shashank,
Vikas Mehta, Bijoy Kumar Jain, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ARUN MISHRA, J.
1. Shree Ram Urban
Infrastructure Ltd. has filed the appeals
challenging the judgment and order dated 22/25/27.1.2016 passed by the
Division Bench of the High Court of Bombay in W.P. [C] No.2223 of
SHREE RAM URBAN INFRASTRUCTURE LTD. & ANR. v.
STATE OF MAHARASHTRA & ORS.
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2013 and First Appeal No.884/2015. Janhit Manch has also filed an
appeal. Ithas also filed two Public Interest Litigations (PILs.) in the
High Court, which have been transferred to this Court and registered as
T.C. (C) No.271/2017 and T.C. [C] No. 6/2018, challenging the order
dated 31.8.2016 (in T.C.(C) No.271/2017) passed by the Municipal
Corporation of Greater Mumbai (MCGM), (for short ‘the Corporation’)
and order dated 10.11.2016 in (T.C. (C) No.6/2018) passed by the
Additional Municipal Commissioner and also order dated 30.1.2017 and
14.3.2017 passed by the Corporation.
2. The matter relates to the building at Plot No. 5B+6, admeasuring
28,409.50 sq.mt. Shree Ram Urban Infrastructure Ltd. applied for grant
of permission to construct and build on the said plots. The commencement
certificate was granted by Planning Authority on 24.2.2005, under the
provisions of the Maharashtra Regional and Town Planning Act, 1966
(for short, “the MRTP Act”) read with Development Control Regulations
for Greater Bombay, 1991 (for short “DCR”). The modification in the
building plan was made on 8.2.2011 under which the Corporation
approved construction of a residential building for two basements, ground,
entrance level, eight parking levels, amenity levels, service floor, and
other areas plus 13th to 54th floors having a height of 294.84 meters.
3. After the issuance of commencement certificate dated
24.2.2005 amendment was made in
the DCR by incorporating clause 24
in Regulation 33, w.e.f. 20.10.2008. The amendment provided that with
the previous approval of the Government, the development of multi-
storeyed parking lots abutting the roads to be permitted. On parking
area being constructed and handed over to the Corporation, free of cost,
FSI, as specified therein, shall be allowed on the land belonging to the
private owners, which is not reserved for any public purpose. Shree
Ram Urban Infrastructure Ltd. (for short, ‘SRUIL’) applied for the
construction of public parking lot (PPL). The plans were approved for
the construction of three basements, ground floor, and 15 upper floors.
The commencement certificate was accordingly endorsed up to the plinth
level of the PPL, including three basements.
4. SRUIL has completed the construction of the main residential
building of 56 floors. Though the Corporation had issued the
commencement certificate up to the 43rd floor, 13 upper floors up to 56
have been constructed by SRUIL. The PPL has been constructed entirely.
Though the commencement certificate granted by the Corporation is up
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to the plinth level, including the basements, so far as commencement
certificate for the upper floors of the PPL is concerned, SRUIL has
relied upon deemed permission.
5. On 7.5.2011, SRUIL wrote a letter to the Municipal Corporation
for seeking commencement certificate for construction above the plinth
level of the PPL under Regulation 6(4) of the DCR. In clause 24 of
regulation 33, there was no upper limit for seeking incentive FSI.
6. The Corporation issued a circular on 22.6.2011, which restricted
PPL to two basements, ground, and four upper floors. The premium
was also enhanced. A stop-work notice was issued on 16.7.2011 in respect
of the construction by the Corporation under section 354 of the Mumbai
Municipal Corporation Act, 1888 (“MMC Act”). The said notice was
withdrawn on 11.11.2011.
7. On 29.11.2011, the Corporation issued a notice under section
51 of the MRTP Act calling upon SRUIL to show cause as to why the
commencement certificate concerning PPL may not be revoked, this
was followed by a notice under section 354A of the MMC Act calling
upon SRUIL to stop the work of PPL beyond plinth level as there was
no commencement certificate issued above the plinth level. SRUIL filed
a representation. After that, they filed Civil Suit No.2942 of 2011 in City
Civil Court at Mumbai, wherein the challenge was confined to the stop-
work notice dated 14.12.2011. The interim injunction was granted
restraining the Corporation from taking any action based on
the said
notice. The order remained operative till the disposal of the said suit.
Under the deemed permission, upper floors above the plinth level of the
PPL have been constructed by SRUIL.
8. On 16.5.2013, the city civil court decreed Civil Suit No.2942/
2011 by holding that the stop-work notice dated 14.12.2011 was illegal.
It was found by the civil court that further commencement certificate to
construct the 15 floors above the plinth of the PPL shall be deemed to
have been granted in terms of Regulation 6(4) of DCR. Therefore, the
stop-work notice was declared illegal against which the first appeal was
filed. The same has been decided by the impugned judgment and order
passed by the High Court at Mumbai.
9. PIL No. 43 of 2012 was filed by Janhit Manch, challenging the
construction of PPL above the plinth level. There was also a challenge
to the construction of the residential building. It was decided on 13.5.2013
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by the High Court. The directions were issued to Corporation to decide
as to PPL given findings recorded. Special leave petition was filed in this
Court by Janhit Manch, challenging the judgment and order mentioned
above.
10. In P.I.L. No.43 of 2012, a direction was issued to the
Corporation to pass an order on various aspects after hearing the parties.
The Municipal Commissioner has passed an order dated 12.9.2013, which
was impugned in the High Court by SRUIL and a prayer was made for
quashing and setting aside the order dated 12.9.2013 passed by the
Commissioner of the corporation. A prayer was also made for issuing
mandamus enjoining upon the Corporation to take over possession of
the PPL consisting of basement, ground plus 15 upper floors and forthwith
endorse the said commencement certificate for residential building up to
the full height of 56 floors. Unless incentive FSI in respect of the PPL is
made available, 13 upper floors of the main building would be illegal as
the FSI of PPL was to be used for the upper 13 floors.
11. In the writ petition, which was filed by the Janhit Manch, PIL
No.43/2012, it was contended that permission granted to erect floor
Nos.44 to 56 of the residential building was dependent upon the availability
of the incentive FSI on account of PPL. SRUIL illegally erected all
floors above the 43rd floor. Secondly, the construction of PPL consisting
of basements plus ground plus 15 floors
was illegal as there was no
commencement certificate issued to proceed with the construction above
the plinth level. Next, it was contended that the refuge area in the
residential building, which is free of FSI, is excessive, and such excessive
refuge area could not have been permitted, which constitutes to the
extent of 72% of the total habitable built-up area of the residential building.
SRUIL were not entitled to FSI on account of the setback area of 705.45
sq.m. as they had already received compensation for the said area. The
question as to the height of the habitable floors about the consumption of
FSI was also raised. Besides, it was contended that the passage at manor
level and entrance, swimming pool, area over deck, and refuge area of
the residential building ought to have been computed in the FSI of the
residential building. The height of the service floor of the building is 8.40
meters; the height above 4.5 meters could not have been granted free of
FSI. FSI relating to service floors, amenity floor, and FSI of duplex floors
ought to have been counted. Besides, FSI about service toilets, structural
columns, toilets at the duplex level, and the floor bed ought to have been
counted.
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12. The High Court in PIL No. 43 of 2012 held that construction
of PPL could not be held as illegal, SRUIL cannot be deprived of claiming
incentive FSI for the residential building. Other aspects to be considered
by the Commissioner/Corporation at the time of issuance of an occupation
certificate. The FSI granted in respect of the refuge area is excessive,
so the Commissioner was directed to re-examine the issue and re-work
the FSI accordingly and whether FSI could be claimed in lieu of the
setback area. The Commissioner was directed to reconsider FSI granted
at manor level, swimming pool, the area over deck and refuge area at
entrance level, FSI concerning structural columns along with refuge area,
etc. The decision of the Commissioner to permit the height of service
floors at 8.40 meters was upheld.  SRUIL to be heard before the
Commissioner takes a final decision.
13.  After that, parties were heard by the Municipal Commissioner,
and an order was passed on 12.9.2013. The Commissioner has held that
PPL shall be as per the MCGM Circular dated 22.6.2011 and State
Government directives dated 19.3.2012 issued under section 37(1) of
the MRTP Act, the Municipal Commissioner observed:
“(i) As regards the Public Parking Lot (PPL), it shall be as
per the MCGM Circular dated 22.06.2011 and as per
State Govt. directives dated 19.03.2012 issued under
section 37(1) of MRTP Act, which is in accordance with
the law.  Hence, MCGM will accept PPL comprising
of 3
basements + Ground + 4 upper floors, which only
will be eligible for grant of incentive FSI towards the
construction of PPL, on payment of requisite premium
as per policy.
(ii) Refuge areas shall be provided free of FSI only to the
extent of 4% of the built-up area it serves.  Refuge
areas in excess of the aforesaid requirements shall be
counted in FSI in accordance with clause 4.12.3 of
National Building Code.
(iii) There is no provision in the DCR for the exclusion of
the structural columns from FSI computations.  Hence,
the structural columns need to be counted in FSI.
(iv) As regards the set back area admeasuring 705.45 sq.mt.,
FSI advantage in lieu of handing over of the same cannot
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be granted at this stage, in absence of conclusive
documentary evidence.
(v) The passages at manor level and entrances, swimming
pool, area over deck, and refuge area at the entrance
level, which were earlier permitted free of FSI, shall be
counted in FSI in accordance with law.
(vi) The request of SRUIL to pay the security deposit under
DCR 5(3)(xi) and to levy the premium as per section
22(m) of MRTP Act, 1966, is rejected.
(vii) Since there are many interlinked revised FSI
computations as aforesaid, the Project Proponent
(SRUIL) is directed to submit modified plans in
accordance with the regulations.”
14. The High Court in the impugned judgment and order has
quashed and set aside the judgment and decree passed by the civil court
on 16.5.2013, and the suit has been dismissed. In the writ petition, the
order of the Commissioner dated 12.9.2013 as far as clauses (v), (vi)
and (vii) of the directions are concerned, has been confirmed. The
direction contained in clause (ii) has been set aside. The direction in
clause (iii) of the Commissioner’s order dated 12.9.2013 has been set
aside. The Commissioner has been directed to consider, exclusion of
structural columns from the computation of FSI and the issue of refuge
area. Clause (iv) of the Commissioner’s order has been set aside,  holding
that there was no reason to disturb the grant of FSI of the set-back area
admeasuring 705.45 sq.m. Clause (i) of the
Commissioner’s order dated
12.9.2013 has become inoperative because of the findings recorded by
the High Court while deciding the first appeal. The Corporation has
been directed to hear the parties and to decide as to the reasonable
refuge area considering various factors in light of the observations and
the discussion made in the judgment and order. The Commissioner was
directed to pass the order within four months.
15. The High Court held that the construction of the PPL above
the plinth level and the construction of the floors above the 43rd  floor of
the main building is illegal as the same has been constructed without
obtaining the commencement certificate(s). SRUIL may apply for
regularisation of the construction made of the PPL above the plinth and
the construction of the upper floors of the main building. A fresh proposal
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for grant of commencement certificate and the development permission
shall be submitted. In case no regularisation is made by the Corporation,
steps shall be taken for demolition after the expiry of the period of 8
months. SRUIL to submit a modified plan to the Commissioner of
Corporation while applying for regularisation. After an appropriate order
is passed, SRUIL to apply for a grant of occupation certificate in respect
of the residential building up to the 43rd floor.
16. According to the direction issued by the High Court, the
Commissioner on 31.8.2016 concerning refuge area has passed the
following order:
“ORDER
“(1)  The area provided on the external peripheral face of the flat,
which are marked hatched on the accompanying plan, shall be
allowed as refuge area.  This order should be mentioned in all
Sale Deeds and/or in Supplementary Sale Deeds to ensure that it
is not sold as a habitable area.  Further, the building would
prominently display the access route to these refuge areas.  These
refuge areas will be kept open and accessible to all Occupants of
the Building at all times.
(2) The refuge areas at the inside of the building at the entrance
of flats shall not be considered as refuge areas.
(3) The four full floors shown as refuge will not be taken as refuge.
(4) The structural columns falling in the refuge areas stated in
Point (1) above can be allowed free of FSI.  Areas of remaining
structural columns shall be counted in FSI.
(Ajoy Mehta)
Date : 31 August, 2016
                   Municipal Commissioner”
17. The Corporation has also passed order dated 10.11.2016 in
which it has held that under section 51 of the MRTP Act, the Planning
Authority can revoke or modify the permission provided that the
construction of PPL has not sufficiently progressed or completed. In
PPL, the total construction cost incurred is about Rs.165 crores, out of
which Rs.70.28 crores were incurred on the construction of PPL up to
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plinth. The construction has proceeded substantially as on the date of
the notice under section 51. There was no stay to the interim order
dated 24.12.2011 of the city civil Court. A subsequent Circular and
Notification cannot be given retrospective effect, and the prevailing
regulations on the date of the approval have to be considered. The decision
in Kohinoor CTNL Infrastructure Co, Pvt. Ltd. & Anr. v. The MCGM
& Ors. reported in (2013) 3 BCR 410 has been referred to by the
Additional Municipal Corporation Commissioner, and it has been held
that construction of public parking lot carried out on the spot under
reference constituted sufficient progress. Bypassing the order dated
30.1.2017, notice under section 51 of the MRTP Act was ordered to be
withdrawn. The premium was directed to be levied as per modified DCR
33(24).
18. In T.C. No.6/2018 filed by Janhit Manch, the order dated
10.11.2016 has been questioned.
19. SRUIL submits that the Government of Maharashtra has
granted in-principle approval for multi-storey parking lot to SRUIL at
Mumbai on 20.8.2010 comprising 3 basements plus stilt on ground plus
15 upper floors, accommodating 900 car parking spaces with sufficient
car lifts and passenger lifts.  The construction was completed in September
2012 on the privately-owned land of the petitioners. The total built-up
area of the PPL is 62,005.91 sq.m. and has spent about Rs.165 crores
for construction of PPL,
apart from the value of the land. The PPL is to
be handed over free of cost to the Corporation to be used by the general
public. It is lying completed but unused since 2012, which is against the
public interest. Thus, the cause espoused by Janhit Manch is not in the
interest of the public.
20. Mr. C.U. Singh, learned senior counsel appearing on behalf of
SRUIL, further submitted that the civil suit, which questioned the notice
under section 354A of the MMC Act, was decreed by the civil court
holding that there was deemed grant of further commencement certificate
in accordance with DCR 6(4) as the application submitted by the Architect
on 7.5.2011 for further commencement certificate beyond plinth level
was not refused by the Corporation as such the civil court held that
construction is with permission and in accordance with the sanctioned
plan  and there is no deviation from it. The view taken earlier by the
Corporation in order dated 12.9.2013 was that the construction of PPL,
3 basements and plinth and 15 upper floors were legal and valid being
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based upon the deemed commencement certificate under DCR 6(4),
nevertheless, it was observed that the construction of PPL above the 4th
upper floor was not legal as it was contrary to Government circular
dated 22.6.2011.
21. SRUIL submits that in W.P. [C] No.2223 of 2013 filed by
Janhit Manch, the challenge was limited to incentive FSI arising out of
the PPL above the fourth floor. The High Court in the impugned judgment
has held that the findings of the Commissioner based on Circular dated
22.6.2011 cannot be sustained, as the Circular, as well as the consequential
directives, had been struck down by the High Court in several cases. It
was also the stand taken by the Corporation in various matters that
Circular dated 22.6.2011, and the directives would not be enforced
because of statutory regulation, which has to prevail. The facts mentioned
above have not been disputed before us and that the Circular dated
22.6.2011 has been struck down by the High Court.
22. SRUIL submits that the Corporation had filed the first appeal
in the High Court belatedly for challenging the civil court’s judgment and
decree. The High Court has erroneously held that the application dated
7.5.2011 made by the architect for further commencement certificate
was not in the prescribed form since it is not stated that the work has
been completed “under my supervision” instead, the architect has
mentioned, “we have completed the work.”
23. It is further urged that permission under
DCR was a central
issue in the civil suit filed by SRUIL against the Corporation. The
Corporation in the first appeal did not challenge the finding of the City
Civil Court nor pleaded in a written statement that there was a failure to
apply prescribed form Appendix XVI, and as such, there was no deemed
permission. It was not the Corporation’s case that the letter received on
7.5.2011 was not in the prescribed form as per Appendix XVI and nor
that deemed permission was unavailable for this reason. No issue was
framed, and no evidence was adduced as to the invalidity of the letter
dated 7.5.2011, and that deemed permission did not accrue. On the
contrary, the Corporation’s witness admitted receipt of the letter dated
7.5.2011 and its failure to reply to the same. Thus, the findings recorded
by the High Court about the irregular construction of 1 to 15 floors of the
PPL are neither proper nor sustainable.
24. It is further submitted that the finding recorded in the impugned
judgment that the commencement certificate is valid for 4 years in
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aggregate and that the commencement certificate was lastly endorsed
on 18.11.2011, and therefore, it has lapsed, is contrary to Regulation 5(6)
and section 48 of the MRTP Act. Regulation 5(6) stipulates that the
construction up to the plinth level has to commence within 4 years. In
case it is not commenced, then only the commencement certificate lapses
and new development permission has to be obtained. Thirdly, the mandate
under section 48 of the MRTP Act is that the new permission would be
required if the construction work up to plinth is not completed within 4
years. Admittedly, in the present case, the construction of the PPL was
complete in the year 2012 itself. Hence, there was no requirement for
new development permission. The finding of the High Court is belied by
section 51of the MRTP Act, which protects the landowner against any
revocation or modification in the building permissions or the plans once
the construction has substantially progressed.
25. It is submitted that PIL No. 43 of 2012 was filed belatedly by
Janhit Manch on 1.3.2012 after three basements, and 9-10 upper floors
of a PPL were already constructed and by that date, India’s tallest
residential building had already been constructed up to 56 floors. The
stage mentioned above of construction was admitted to in the PIL. There
is an unexplained delay amounting to laches by Janhit Manch; on this
ground alone, the appeal and the Transfer Cases
deserve dismissal.
26. It is further submitted on behalf of SRUIL that it was neither
pleaded nor argued by Janhit Manch in the PIL that the letter dated
7.5.2011 submitted by the Architect of SRUIL to the Corporation was
not in the prescribed form, i.e. Appendix XVI, nor that the permission by
deeming fiction under DCR 6(4) did not accrue for the said defect. In
SLP [C] No.20279/2013 only those contentions which were raised therein
were left open by this Court as no such contentions/grounds were raised
in the previous special leave petition, as such the contentions which were
not raised in the special leave petition are not open to being agitated now
at a subsequent stage. The High Court also had kept open only those
grounds that were raised and left to be decided by Corporation.
Submission of Janhit Manch that construction of PPL above plinth level
is illegal as the same was carried out during the stop-work notice dated
16.7.2011, is erroneous. The said notice did not relate to PPL as has
been made clear by the Corporation in their affidavit dated 4.5.2012.
27. Alternatively, it is urged on behalf of SRUIL that the ground
raised by Janhit Manch that the High Court could not have issued the
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direction for regularisation deserves to be rejected in the light of this
Court’s decision in Muni Suvrat-Swami Jain S.M.P. Sangh v. Arun
Nathuram Gaikwad & Ors. (2006) 8 SCC 590. The challenge by Janhit
Manch that regularisation ought to be rejected and could not have been
ordered by the High Court is contrary to the decision in Muni Suvrat
(supra). It is for the Corporation to take a decision, and Janhit Manch
has not questioned the vires of the statutory provisions which allow
regularisation. Thus, the ground raised by Janhit Manch ought to be
summarily rejected. The construction of 15 upper floors of the PPL
cannot be said to be illegal. Even otherwise, in the absence of endorsement
on the commencement certificate is a procedural irregularity, and the
same can be regularised under section 53(3) read with section 44 of the
MRTP Act, as the construction falls in the categories as specified in
section 52. The Municipal Corporation has itself issued Circulars in the
exercise of its powers under the provisions of section 53 read with section
44 of the MRTP Act on 4.2.2011, which prescribes various modes of
regularisation.
28. It is further submitted in the alternative that in case deemed
commencement certificate for further construction beyond plinth is
incorrect, and that there was no deemed commencement permission for
construction above the plinth. The Commissioner has directed
regularisation of 15 upper floors of PPL in terms of the order of the High
Court upon payment of Rs.44,80,15,781 as a penalty for building beyond
the plinth and Rs.117,81,10,640 as premium under the amended DCR
No.33(24) which came into force in 2014.
29. SRUIL also submitted that the challenge raised by Janhit Manch
to the order of regularisation on the ground of DCR 33(24) as amended
in 2014, to the effect that only two basements plus ground plus 4 floors
can be regularised on payment of premium as on the date on which
order is passed. It is contrary to the settled position of law that the
existing provisions as on the date of permission and construction would
be applicable and not the subsequently amended law, as observed in
Suresh Estates Pvt. Ltd. & Ors. v. Municipal Corporation of Greater
Mumbai & Ors. (2007) 14 SCC 439, and T. Vijayalakshmi & Ors. v.
Town Planning Member & Anr. (2006) 8 SCC 502. It is submitted that
the High Court’s finding on lack of deemed permission for PPL deserves
to be set aside, and alternatively, the Corporation be directed to accept
the PPL upon payment by the petitioner of the amount on receiving the
amounts of premium and penalty. The application of the petitioner for
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the regularisation of Floors 44 to 56 may be directed to be considered
and decided on its own merits by the Corporation.
30. It is further submitted concerning Floors 44 to 56 of the
residential building that the construction has been raised following the
sanctioned plans. It is nobody’s case that the construction of the
residential building is in violation or the deviation of the sanctioned plans.
The plans have been approved and amended from time to time. Last
such amendment being on 8.2.2011 for the entire 56 floors of the building.
The commencement certificate was lastly endorsed up to the 43rd floor
for the height of 238.50 meters on 18.11.2011. Floors 44 to 56, as per the
last sanction plan, are approved utilising 12344.63 sq. mts. of additional
31002.5 square mts. of incentive FSI of the PPL. The commencement
certificate for the said floors was to be endorsed on handing over the
PPL to the Corporation, which releases an additional 31,002.51 sq. mts.
of incentive FSI.  The non-endorsement of commencement certificate
from 44 to 56 floors is merely an irregularity and not a breach of
Development Control Regulation or statute.
31. Concerning the refuge areas for floor safety, it is submitted
that Janhit Manch seeks to challenge the exclusion of certain refuge
areas from the calculation of FSI. The rules provide for refuge areas.
There is no challenge to DCR 2(13), 2(42), 35, 37, 43, and 44, especially
DCR 44(7).
Fire escape in multi-storeyed buildings is necessary, and the
Chief Fire Officer has to approve the plans. The refuge area, as
recommended by the CFO in his report and as sanctioned by the
Corporation, cannot be said to be excessive and contrary to DCR
Regulations.
32. Regarding section 51 of the MRTP Act, it is submitted that
once the Planning Authority has sanctioned the plans, the power to modify
or revoke is under section 51, which can be exercised only in case of the
contingencies provided in the provisions of the said section.
33. SRUIL lastly submits that Janhit Manch has no right to
challenge the judgment. They were aware of the civil suit and interim
order granted therein. They have filed the order in PIL No. 43/2012.
Janhit Manch has filed IA No.2/2013 and has withdrawn it. After that,
they sought impleadment in W.P. No. 2223/2013 in the High Court and
after that, again withdrew the Chamber Summons. In the circumstances,
Janhit Manch should not be permitted to approbate and reprobate, and
the petition filed by it be dismissed as well as the Transfer Cases. The
petition is not filed to subserve any public interest.
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34. Mr. Ahmadi, learned senior counsel appearing on behalf of
Janhit Manch has submitted that the development permission issued under
section 45 of the MRTP Act is valid for a maximum period of 4 years in
aggregate and lapses under section 48 upon expiry of the said period.
He has further submitted that the additional amended plans of SRUIL
dated 8.2.2011 are illegal and contrary to DCR 33(24) as the incentive
FSI did not accrue without handing over of the PPL. The construction
of PPL beyond the plinth area was illegal, as the deemed permission
under DCR 6(4) did not accrue in favour of SRUIL. The construction of
the PPL was done in violation of the stop-work notice issued by the
Corporation. The Corporation rightly limited the construction of the PPL
to ground plus 4 upper floors and two basements in terms of Circular.
The sanction of the PPL building by way of an endorsement of the
commencement certificate of the residential building is wholly illegal.
The order dated 31.8.2016 passed by the Municipal Commissioner
regarding the refuge area is illegal, being contrary to the judgment of the
High Court and provisions of NBC. The order of the Additional Municipal
Commissioner dated 10.11.2016 purportedly adjudicating the notice under
section 51 of the Act is also illegal. Janhit Manch has filed a writ application
and the Transfer Cases in the public interest and has also attracted the
attention of this Court to the inconsistent stand taken by the
Corporation
at various stages.
35. Shri A.N.S. Nadkarni learned Additional Solicitor General,
submitted on behalf of the Corporation that pursuant to the order passed
by the High Court, the Commissioner has already passed an order
compounding the PPL and construction of PPL is in the public interest
as 900 cars can be parked in the same. It has been constructed by
spending a massive amount of Rs.165 crores; in addition, fine and penalty
have been imposed by the corporation, which is a substantial one, amount
of which is also going to be used for a public purpose. Thus no case for
interference is made out. Due to the order passed by the Commissioner
imposing fine and penalty, the matter is given a quietus, and no public
interest is going to be served by entertaining the petitions filed by Janhit
Manch.
In re. : development permission issued under section 45
of the MRTP Act :
36. First, we take up a question for consideration whether the
permission for development issued under section 45 has lapsed? It is
submitted on behalf of Janhit Manch that permission granted under section
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45 of the MRTP Act is valid for a maximum period of 4 years in aggregate
and lapses under section 48 of the Act on expiry of the said period. It is
submitted that intimation of disapproval (IOD) under section 346 of the
MMC Act was given to SRUIL in respect of a proposed commercial
building. It was necessary to obtain a commencement certificate as per
the conditions of IOD couched in negative form. On 24.2.2005 first
commencement certificate was issued. As per condition Nos. 5 and 9 of
the commencement certificate, it is renewable every year and can be
extended for 3 years. After that, fresh permission under section 44 of
the MRTP Act has to be obtained. The commencement certificate was
extended up to the 43rd floor on 8.2.2011. The commencement certificate
was endorsed on 12.9.2006. Earlier commencement certificate was for
different plans of commercial building and lapsed on 23.2.2006. Thus,
the plans dated 12.7.2005 could not have been approved as the
modification was substantial; hence, a fresh IOD and commencement
certificate was required as per Regulation 6(5) of DCR 1991. On
24.1.2008, a commencement certificate was endorsed concerning a
residential building as per the amended, approved plan dated 7.11.2007.
Earlier commencement certificate was for a different plan which lapsed
on 11.9.2007. The plan of 7.11.2007 could not have been approved as
the modification was substantial, which involved basements. The
commencement certificate concerning the residential building lapsed on
9.7.2010. It was endorsed on 11.8.2009 up to 34 floors. On 1.10.2010,
the commencement certificate concerning PPL was endorsed up to the
plinth level only. On 18.11.2011, it was extended from time to time
concerning the residential building. It is also submitted that under section
48 of the MRTP Act, commencement certificate shall remain in force
for one year from the date of receipt of such grant, failing which it will
lapse. The endorsement made concerning the residential building was
invalid. The endorsement on the commencement certificate dated
24.1.2008 was also illegal.
37. Learned senior counsel further submitted that under section
44 of the MRTP Act, application for permission for development has to
be filed. It can be granted or refused under section 45. In case it is
granted, it shall be contained in the commencement certificate in the
prescribed form. Section 48 has been relied upon, which provides that
every permission shall be valid for 1 year and renewable for the next 3
years. The MRTP Act has been amended by Maharashtra Act 17 of
2007 amended section 48 by substituting the second proviso. It is provided
that if the development is not completed up to the plinth level within 1
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year or the extended period, it shall be necessary for the applicant to
make an application for new permission, the second proviso cannot be
interpreted to nullify the effect of the main provision. Thus, development
permission lapses upon expiry of the aggregate period of four years.
Regulation 5(6) of DCR 1991 has also been relied upon by Janhit Manch.
Similar was the condition mentioned in the commencement certificate
dated 24.2.2005.
38. On the other hand, on behalf of SRUIL, it is submitted that the
finding of the High Court that commencement certificate is valid for 4
years in aggregate, is contrary to Regulation 5(6) of DCR 1991 and
section 48 of the MRTP Act, as amended. In case construction work up
to the plinth level is not completed within 4 years, it is necessary to
obtain fresh permission and not otherwise.
39. Regulation 5 contains the procedure for obtaining
commencement certificate, Regulation 5(6) provides as to
commencement of work. Regulation 5(6) is extracted hereunder:
“5. Procedure for obtaining Development Permission and
Commencement Certificate:-
(6) Commencement of work:— A commencement certificate/
development permission shall remain valid for four years in the
aggregate but shall have to be renewed before the expiry of one
year from the date of its issue. The application for renewal shall
be made before expiry of one year if the work has not already
commenced. Such renewal can be done for three consecutive
terms of one year
each, after which proposals shall have to be
submitted to obtain development permission afresh.
For the purpose of this Regulation, ‘Commencement’ shall mean
as under:–
(a) For a building work including 
additions and alterations:- 
Up to plinth level 
(b)
or bridges and overhead 
tanks; 
Foundation and construction work up to the base 
floor 
(c) For underground works: 
Foundation and construction work up to floor of 
underground floor 
(d)
For lay-out, subdivision, and 
amalgamation proposals: 
Final demarcation and provisions of infrastructure 
and services up to the following stages —  
(i) Roads: Water bound macadam complete. 
(ii) Sewerage, drainage, and water supply 
excavation and base concreting complete.” 
SHREE RAM URBAN INFRASTRUCTURE LTD. & ANR. v.
STATE OF MAHARASHTRA & ORS. [ARUN MISHRA, J.]
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 40. Section 48 of the MRTP Act, as amended in 2007, is relevant.
Same is extracted hereunder:
“48. Every permission for development granted or deemed to be
granted under section 45 or granted under section 47 shall remain
in force for a period of one year from the date of receipt of such
grant, and thereafter it shall lapse :
Provided that, the Planning Authority may, on application made to
it extend such period from year to year; but such extended period
shall in no case exceed three years:
Provided further that, if the development is not completed up to
plinth level or where there is no plinth, up to upper level of basement
or stilt, as the case may be, within the period of one year or
extended period, under the first proviso, it shall be necessary for
the applicant to make application for fresh permission.”
  (emphasis supplied)
It is provided in section 48 that permission for development or
deemed permission shall remain in force for a period of 1 year from the
date of receipt of such grant, and thereafter it shall lapse. It can be
extended from year to year, but such extended period shall in no case
exceed three years. The second proviso as inserted by way of amendment
in 2007 provides that if the development is not completed up to plinth
level or where there is no plinth, up to the upper level of basement or
stilt, as the case may be, within the period of 1 year or extended period,
under the first proviso, it
shall be necessary for the applicant to make
application for fresh permission. Thus, it is apparent from the second
proviso that in case construction has not been made up to plinth level or
where there is no plinth, up to the upper level of the basement or stilt,
within one year or the extended period, it is necessary to make an
application for new permission. Since the main section 48 does not deal
with the situation where construction has been made up to plinth level or
where there is no plinth, up to the upper level of basement or stilt, as the
case may be, and neither first proviso deals with the situation above.
The interpretation of the second proviso is clear that in case construction
has been made up to the plinth level or where there is no plinth, up to the
upper level of the basement or stilt, within 4 years, it shall not be necessary
for the applicant to make application for fresh permission for development
in the light of the second proviso to section 48.
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41. Regulation 5(6) deals with the commencement of the work. It
does not deal with the situation mentioned in the second proviso to section
48 of the Act. Regulation 5(6) provides that on expiry of one year if the
work has not already commenced and such renewal can be done for
three consecutive terms of one year each. The Regulation has to be
interpreted in tune with the provisions contained in section 48, as amended.
It cannot curtail the ken of section 48. Thus we hold that in case
construction has been done up to the plinth level within four years from
the date of development permission, it would not be necessary to obtain
it afresh. The finding of the High Court, to the contrary, is set aside.
In re: additional amended plans of SRUIL up to 56 floors:
42. It is submitted on behalf of Janhit Manch that additional
amended plans submitted by SRUIL up to the 56th floor are illegal and
contrary to DCR 33(24). DCR 33(24) was introduced vide a Notification
by which a car parking scheme was brought into effect from 2008
thereunder for a public parking lot (PPL) constructed on a plot of land
and handed over free of cost to the corporation. A plot owner/developer
was entitled to receive incentive FSI, inter alia to the extent of 50% of
the area of the PPL handed over by him, to be used on the said plot
itself. DCR 33(24) allowed unrestricted construction of PPLs of unlimited
floors without having any logical or scientific basis for their need in specific
areas
and/or localities. The provision was subjected to misuse. On
18.6.2010, the proposal for the construction of PPL received the approval
of the Urban Development Department of the Government of
Maharashtra in respect of the PPL proposed by SRUIL. Condition Nos.2,
5, and 8 of the said approval made it clear that the additional FSI in lieu
of development of PPLs shall be granted after parking is created and
handed over to the corporation free of cost. The Corporation has not
taken over the PPL so far; as such, there is no additional FSI available to
SRUIL. The IOD could not have been granted beyond the 44th floor up
to 56 floors. Thus, the sanction granted to SRUIL for construction of a
Palais Royale having 56 floors was void ab initio.
43. It is further submitted that as per condition Nos.13, 18 and 24,
it is after conditions under DCR 33(24) are complied with, and actual
handing over of the PPL, commencement certificate for the additional
FSI shall be granted and not before that. On 20.8.2010, the Corporation
issued a letter approving the amended plan for the PPL proposing 3
basements plus lower ground plus stilt plus 15 floors. On 1.10.2010,
SHREE RAM URBAN INFRASTRUCTURE LTD. & ANR. v.
STATE OF MAHARASHTRA & ORS. [ARUN MISHRA, J.]
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commencement certificate for the PPL was granted up to the plinth
level, only including the basement. On 8.2.2011, the plans for the residential
Palais Royale building were sanctioned up to 56 floors for a total FSI of
54,715.19 sq. meters. It is submitted that the sanction was illegal. On
realizing the disastrous consequences of DCR 33(24), a circular was
issued on 22.6.2011, directing that all proposals of PPL may be considered
subject to the height of PPL being limited to ground plus four upper
floors and two basements. SRUIL did not challenge circular in the court.
The State Government proposed the modification of DCR 33(24) on
19.3.2012. On 14.9.2012, SRUIL requested the Corporation to take over
the PPL. The State Government issued a notification amending DCR
33(24) on 6.8.2014 by inter alia limiting PPL as provided in said Circular,
i.e., three basements plus ground plus four upper floors.
44. It is apparent that in principle the approval had been granted
to raise the PPL. On 18.6.2010 at that time, DCR 33(24), there was no
restriction on the floors of PPL that came to be introduced in 2014 before
that the completion of PPL has taken place. The PPL has been validly
constructed under deemed permission. Additional FSI would be available
as soon as the Corporation takes over the PPL. The High Court has
directed the Corporation to decide the fate of 13 floors beyond the 44th
floor in the impugned order concerning
which the decision has to be
taken as ordered by the High Court to the Corporation. FSI no doubt
would be available once possession of PPL is handed over. The fact
remains that residential building, as well as the PPL, have been
constructed as per sanctioned plan, and now a final decision has to be
taken by the Corporation regarding 44 to 56 floors as ordered by the
High Court. We find ourselves in unison with the decision of the High
Court that construction was not illegal as the development permission
was granted, the plan was sanctioned for PPL as well as for the residential
building. Thus, we find no force in the submission raised by Mr. Ahmadi.
However, the Corporation to take a decision concerning 13 floors of the
residential building as ordered by the High Court within 1 month.
In Re: deemed permission under Regulation 6(4) of DCR
1991:
45. SRUIL submits as to PPL  that on the basis of application for
inspection submitted on 7.5.2011 by the Architect who was looking after
the project under Regulation 6(4), intimation was given for inspection
under DCR 6(4) and there was no inspection made by the Commissioner
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jointly with the licensed technical personnel or Architect within 15 days
from the date of receipt of the notice. It was incumbent upon the
Commissioner either to refuse or to give permission for further
construction as per the sanctioned plan in the form in Appendix XVI. As
the permission had not been declined, the permission shall be deemed to
have been given. It is submitted on behalf of SRUIL that though the
application for inspection was not given in the prescribed format,
nonetheless, the same fulfilled the requisites as provided in the prescribed
form XVI. It is submitted that the Government of Maharashtra granted
in-principle approval for construction of multi-storeyed parking lot to
SRUIL on its land at Worli, Mumbai on 18.6.2010. The need for PPL
had been examined. All the approvals, as contemplated by DCR 33(24),
starting with the Government approval, were in place before commencing
the construction of PPL. The total built-up area of the public parking lot
is 62,005.91 sq.mtrs. It is submitted that in the construction of PPL,
Rs.165 crores has been spent apart from the value of the land. The PPL
is to be handed over free of cost to the Corporation. In the civil suit, it
was held that there was deemed permission under DCR 6(4). The
judgment of the High Court dated 13.5.2013 in PIL No.43/2012 and the
decree of the city civil court in Suit No.2942 of 2013 was at that stage,
accepted by the Corporation and the Municipal Commissioner proceeded
in
September 2013 to determine the issues which were to be decided by
him as per the decision of the High Court dated 13.5.2013.
46. It was held by the Commissioner that though the construction
above the plinth level was legal and valid, the construction of the PPL
above the 4th floor, i.e., floors 5 to 15 was against the Government circular
dated 22.6.2011 by which restrictions have been imposed in the city of
Mumbai to a maximum of 4 upper floors. In W.P. [C] No.2223/2013, the
challenge was limited to the incentive FSI arising out of the PPL above
the fourth floor. In the writ petition filed by SRUIL, the challenge was
limited to incentive FSI arising out of PPL above the fourth floor, which
the Commissioner held will not be granted as it was not in accordance
with the Circular dated 22.6.2011.
47. The High Court in the impugned judgment has held that Circular
dated 22.6.2011 has been struck down by the High Court in several
cases. In the High Court, in many cases, the Corporation has taken the
stand that Circular dated 22.6.2011 and consequential directives would
not be enforced in view of statutory provisions of DCR 33(24).
SHREE RAM URBAN INFRASTRUCTURE LTD. & ANR. v.
STATE OF MAHARASHTRA & ORS. [ARUN MISHRA, J.]
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48. It is also submitted on behalf of SRUIL that after passing the
order dated 12.9.2013 in which it was held that there was deemed
permission, the Corporation belatedly filed First Appeal No.884 of 2015
on 20.11.2013 to challenge the City Civil Court’s judgment and decree.
Filing of the belated appeal after accepting the verdict of the trial court
and that of the High Court and in view of the order dated 12.9.2013, it
was not open to the Corporation to file the appeal. It is further submitted
on behalf of SRUIL that the High Court has erroneously held that the
application dated 7.5.2011 filed by the Architect for further
commencement certificate above plinth level was not in the prescribed
format as it does not state “under my supervision” instead, the Architect
says “we have completed the work.”
49. It is further submitted on behalf of SRUIL that it was not the
Corporation’s case in the written statement filed in the civil suit that the
letter received on 7.5.2011 was not in the prescribed format, nor it was
submitted that deemed permission did not accrue for the aforesaid reason.
As such, no issue was framed on the aforesaid aspect. No evidence
was adduced. At a subsequent stage, the plea could not have been raised
by the Corporation. The witness examined on behalf of the Corporation
admitted the receipt of the letter dated 7.5.2011 and failure to send the
reply that without raising the issue before the civil
court, it was orally
argued at the time of final argument which was rejected by the civil
court. However, the Corporation in First Appeal No. 884/2015 did not
challenge the said finding of the city civil court. It was not the case such
set up that failure to follow the Appendix XVI format vitiated the deemed
permission. Thus, deemed permission accrued under DCR 6(4).
50.  SRUIL further submits that Janhit Manch filed PIL on 1.3.2012
after 3 basement levels, and 9-10 upper floors of a public parking lot had
been constructed. There was a delay in filing the PIL as construction
has substantially progressed. On this ground, the special leave petition
of Janhit Manch and Transfer cases are liable to be dismissed. In PIL
No. 43/2012, it was not the case set up by Janhit Manch that the letter
dated 7.5.2011 was not in prescribed format Appendix XVI nor that the
deeming fiction under DCR 6(4) was not available. The High Court in
the previous round had rejected all the submissions which were raised
therein vide judgment and order dated 13.5.2013 in paragraph 28(m) to
(o). It is further submitted that in SLP [C] No.20279/2013, Janhit Manch
challenged only those findings of the High Court, which were against it,
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and they did not raise any plea beyond what was argued and decided in
PIL. It was not the case set up in the special leave petition that the letter
received by the Corporation on 7.5.2011 was not in the prescribed form.
This Court closed the special leave petition on 15.1.2018 with the disposal
of IA No.6. The contentions raised therein were left open as no such
ground was ever raised in the said petition. Hence, the same cannot be
raised now in the instant matter, which was not left open and taken in
the previous round. The stop-work notice dated 16.7.2011 did not relate
to PPL. The Corporation expressly asserts this fact in their affidavit
dated 4.5.2012.
51. On the other hand, it was submitted on behalf of Janhit Manch
that Regulation 6(4) mandates that an application should be filed in the
prescribed form Appendix XVI. The form contains a mandatory
requirement of the statement of the Architect that the work up to the
plinth has been done under his supervision. The same is not an empty
formality as the statement to that effect binds the Architect in respect of
any defect or calamity, which may occur in the future. Letter dated
7.5.2011 did not fulfil the aforesaid mandatory requirement. It is also
submitted that the letter was undated. The provision is mandatory. Janhit
Manch further submits that stop-work notice was issued to SRUIL for
the entire plot. An inventory was prepared on 22.7.2011, which records
that “The work of PPL tower is in progress up
to plinth which is as per
commencement certificate granted.” Therefore, the construction of the
plinth was not complete even on 22.7.2011. The sine qua non for making
an application under Rule 6(4) is that the work up to the plinth must be
completed. Because of inventory dated 22.7.2011, it was submitted that
the plinth was not completed up to that date. As such, no legal fiction is
created under DCR 6(4). For deeming fiction of permission to take effect,
the condition precedent must have strictly complied. There is no scope
for a liberal interpretation of such condition, and unless there is strict
compliance of the provisions, a deeming fiction cannot take effect. The
High Court has rightly held that unless the application is submitted in the
format, it will lead to chaos as lower-level officials would be saddled
with the burden of deciding whether the applicant complies with the
requirement of DCR 6(4). Even if the form is not mandatory, when the
law prescribes a mode of doing a thing, it can be done in that manner
only and not in any other mode. In any event, deemed permission under
DCR 6(4) cannot go beyond 1 year. Therefore, the construction is done
beyond the period of 1 year, that is, after 22.5.2012, is patently illegal.
The construction was ready only on 14.9.2012.
SHREE RAM URBAN INFRASTRUCTURE LTD. & ANR. v.
STATE OF MAHARASHTRA & ORS. [ARUN MISHRA, J.]
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52. Before we appreciate the rival submissions, it is necessary to
consider the provisions contained in DCR 6(4). DCR 6 deals with the
procedure during construction. DCR 6(1) provides construction to
conform to regulations. Under DCR 6(2), the owner shall give notice to
the Commissioner of his intention to start work in the form given in
Appendix XV. DCR 6(3) provides that results of the test of any material
shall be kept available for inspection during the construction of the building
and such period after that, as may be prescribed. DCR 6(4) contains a
provision for checking plinth columns up to the plinth level by the
Commissioner. Regulation 6(4) with which we are concerned is extracted
hereunder:
“6. Procedure during construction:-
(4) Checking of plinth columns up to plinth level:—The owner
through his licensed surveyor, engineer, structural engineer or
supervisor or his architect shall give notice in the form of Appendix
XVI to the Commissioner on completion of work up to plinth level
to enable the Commissioner to ensure that the work conforms to
the sanctioned plans. The Commissioner may inspect the work
jointly with the licensed technical personal or architect within
fifteen days from the receipt of such notice and either give or
refuse permission for further construction as per the sanctioned
plans in the form in Appendix XVII. If within this period, the
permission is not refused, it shall be deemed to
have been given
provided the work is carried out according to the sanctioned plans.”
It is apparent from DCR 6(4) that the purpose of the intimation to
be given by licensed surveyor, engineer, structural engineer or supervisor
or his architect in the form of Appendix XVI to the Commissioner on
completion of work up to plinth level is to enable the Commissioner to
inspect to ensure that the work conforms to the sanctioned plans. It is
the Commissioner’s satisfaction that work conforms to the sanctioned
plans, not that of Architect of builder. It is for the Commissioner to satisfy
himself,  he has to inspect the work jointly with the licensed technical
person or Architect within 15 days from the receipt of such notice, and
thereupon he has to form an opinion whether the work conforms to the
sanctioned plans and thereupon he is required to give or refuse permission
for further construction as per the sanctioned plans. Further permission
has to be issued in Form Appendix XVII.
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53. It is also provided under DSR 6(4) that if within the period of
15 days, the permission is not refused, it shall be deemed to have been
granted provided the work is carried out according to the sanctioned
plans. Thus, it is necessary to decide whether to give permission or to
refuse after inspection within 15 days of the notice. In case it is not so
done within 15 days, the permission shall be deemed to have been granted.
However, it is necessary for deemed permission to come into play; work
of foundation up to the plinth level had been carried out according to the
sanctioned plans.
54. In DCR 6(4), the prescribed Form XVI is extracted hereunder:
                “APPENDIX XVI
               [Regulations No.6(4)]
Form of intimation of Completion of Work up to Plinth Level
To
The Executive Engineer (Building Proposal) ................Ward,
Municipal Corporation of Greater Mumbai.
Sir,
       The construction up to plinth/column up to plinth level has
been completed in Building No..........on/in Plot No./C.S. No./
C.T.S.No.................Division/Village/Town 
Planning
Scheme             No.........................Road/
Street.................Ward.......................................in accordance
with your permission No.................dated……...............under my
supervision and in accordance with the sanctioned plan.
        Please check the completed work and permit me to proceed
with the rest of the work.
         Yours faithfully,
Signature of Licensed Surveyor/
                    Engineer/Structural Engineer/Supervisor
          or Architect
SHREE RAM URBAN INFRASTRUCTURE LTD. & ANR. v.
STATE OF MAHARASHTRA & ORS. [ARUN MISHRA, J.]
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            Name ………………………………………
(in block letters)
                                  Address…………..………………………….
                               …………………………………………………
                               …………………………………………………
Date : .........................................”
55. The notice dated 7.5.2011, which has been served by the
Architect of SRUIL under Regulation 6(4), is extracted hereunder:
“TALATI & TALATI & PANTHAKY
ASSOCIATES PVT. LTD.
EST, 1964
ARCHITECTURE & INTERIOR DESIGN
                 CHAIRMAN NOSHIR TALATI
M.DIRECTOR NOZER PANTHAKY
DIRECTORS – NOUSHIR DEVITRE – PHIROZE PANTHAKI –
ZAHIR CASSUM –
SHAROOKH MEHTA – XERXES TALATI
To,
The Executive Engineer (B.P.) City – 1,
‘E’ Ward MCGM Office,
Byculla, Mumbai – 400008
Dear Sir,
Sub: Development of Public Parking Lot on plot bearing
C.S.No.288, 289, 310, 1/1540, 3/1540, 1547, 1548, 1549, 1/1539
& 1550 of Lower division belonging to Shree Ram Mill Ltd. at
Ganpatrao Kadam Marg, Mumbai – as per the provisions of D.C.
Regn. 33 (24).
Ref:  File U/No. EB/987/GS/A.
With reference to the above subject.  The amended plan submitted
by us has been approved by your office.  Further, we have complied
all the condition of I.O.D. as well as amended plan, and we have
complied work up to plinth as per approved plans. You are therefore
requested to kindly check the plinth and grant us further C.C. at
the earliest.
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Thanking you,
Yours faithfully,
For Talati & Panthaky Associated Pvt. Ltd.
Sd/-
Authorised Signature”
  (emphasis supplied)
56. When we compare the aforesaid Form XVI and the intimation
submitted by SRUIL’s Architect on 7.5.2011, it becomes clear that notice
given is rightly addressed to the Executive Engineer. The subject
mentioned is the development of PPL as per the provisions of DCR
33(24). The requirement that construction up to plinth/column up to the
plinth level has been completed, in accordance with the approved plan,
fulfils the requirement of the first part of the format Appendix XVI
mentioned before the word “date.” After the word “date”, the requirement
in the prescribed format is that “the work has been completed under my
supervision” and “in accordance with the sanctioned plan.” The latter
portion, in accordance with the sanctioned plan, has been mentioned in
so many words. The only difference is the format prescribes that the
work has been done “under my supervision and in accordance with the
sanctioned plan.”. It has been mentioned that “we have complied (sic –
completed) work up to plinth as per approved plans.”
57. The architect, by the aforesaid expression, is owning that he
has completed the work as per the approved plans. He owns responsibility
upon himself that he has ‘complied with’ or ‘completed the work’ up to
the plinth level as per approved plans, which would obviously mean that
it has been done under his supervision. When the
Architect is saying that
we have completed the work, he owns the responsibility of the
construction that has been made. When he owns that construction is on
his part as per plan, that would mean under his supervision. Apart from
that, the basic idea of DCR 6(4) is not to ensure the satisfaction of the
Architect, some licensed surveyor, engineer, structural engineer,
supervisor or Architect but it is for the Commissioner to ascertain that
the work up to plinth level has been done as per sanctioned plan. A mere
statement by the Architect that the work has been done under his
supervision is not going to satisfy the main requirement of DCR 6(4) of
satisfaction of the Commissioner. The intendment of DCR 6(4) is that
the work conforms to the sanctioned plan, which is as per the satisfaction
of the Commissioner. The purpose of the notice is to enable the
SHREE RAM URBAN INFRASTRUCTURE LTD. & ANR. v.
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Commissioner to inspect and reach the satisfaction that the work done
conforms to sanctioned plan. Then he has to act further based on his
satisfaction, in case of construction as per the sanctioned plan, he has to
give permission for further construction within 15 days or refuse it. In
case he fails to do so, permission is deemed to have been granted for
further construction.
58. In the instant matter, the receipt of the letter dated 7.5.2011
has not been denied on behalf of the Corporation in the written statement
filed in the civil suit, instead this fact has been admitted by the witness
examined on behalf of the Corporation in the civil suit, in the city civil
court, that the communication dated 7.5.2011 had been received and no
reply to it was sent. It is not the case anywhere set up by the Corporation
that the construction up to plinth was not as per the sanctioned plan.
Thus, the deemed permission has come in force under DCR 6(4), on
expiry of 15 days from the service of notice dated 7.5.2011. In C.S. No.
2942/2011 filed by SRUIL in the plaint, it has been stated that the plaintiff’s
Architect has served notice on 7.5.2011 under DCR 6(4). No reply or
any rejection was received within 15 days from the corporation/
defendants. Thus, the deemed permission came into play. Following
averments have been made in the plaint:
“18. As per the LOI dated 6th August 2010, the Plaintiffs were
required to complete and
handover to the MCGM the said Public
Parking Lots within 24 months of issue of the LOI, i.e., by 6th
August 2012.  The Plaintiffs state that the construction of the
plinth was completed in May 2011 following the CC.  The Plaintiffs,
after that, gave notice as required under DCR 6(4) for inspection
of the plinth and grant of further CC on 7th May 2011.  Since the
Plaintiffs received no reply nor any rejection to the same within
15 days, the construction of the Public Parking Lot was continued
by the Plaintiffs as per the sanctioned plans, in accordance with
the law.  Hereto annexed and marked Exhibit “I” is a copy of the
Plaintiffs Architect’s letter dated 7th May 2011.  The Plaintiffs
say and submit that as no reply/rejection was received within 15
days from the Defendants as required under law and hence as
per DCR 6(4), it is a deemed provision permitting the plaintiffs to
carry out further work as requested in their letter dated 7th May
2011.”
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59. We have gone through the entire written statement filed by
the corporation. They have nowhere denied that they received the notice
dated 7.5.2011, nor it is denied that there was deemed permission, after
the lapse of 15 days of notice under DCR 6(4). Averments made in para
18 have not been replied. In para 5, there is a reply to paras 1 to 4. In
para 6, there is a reply to paras 5 to 8 of the plaint. Then in reply to para
7, there is a reply to paras 9 to 20. Even otherwise, we have gone through
para 7 and the special pleas and the entire written statement. We find no
reply to the averments described above made in the plaint. Thus, in the
civil suit, for want of denial, no issue was framed on the aspect of deemed
permission. Apart from that, the witness of the corporation namely Ajay
Sadanand Chawan has admitted in para 2 of the cross-examination that
the letter issued by the plaintiff to the Corporation for obtaining further
commencement certificate for the construction of public parking building,
was received by the Corporation and that the Corporation did not reply
to the said letter. Para 2 of cross-examination is extracted hereunder:
“2. On perusal of the file in my custody, I had seen that there is
one letter issued by plaintiff to the corporation for obtaining further
commencement certificate for the construction of public parking
building.  The letter at Exh.14 now shown to me was received by
our corporation.  The corporation did not reply to
the said letter
either or allowing of the said letter or of refusing the said letter till
the 31st May 2011.  After the 31st May 2011, the corporation did
not reply to the said letter copy at Exh.14.  Public Parking Building
is of RCC.  So far as completion of the RCC Slab at each floor,
there should be interval of two to three weeks’ time.  In order to
complete the RCC Slabs up to the 7th floor, reasonable time of 3
to 4 months is required.  The corporation had received a reply
issued by the plaintiff to the notice dt/29/011/2011 copy at Exh.25.
It is true that our corporation had received the reply to the notice
dt. 19/12/2011 copy at Exh.24.”
60. In para 1 of the cross-examination, the witness has admitted
that the said work in respect of 14 floors of the PPL building was following
the approved and sanctioned plan of the Corporation. It was not the
case set up by the Corporation that the notice dated 7.5.2011 was illegal,
and it did not conform to Form XVI as prescribed under DCR 6(4). The
factum of the receipt of the notice has been admitted. The submission
raised on behalf of Janhit Manch that notice dated 7.5.2011 is a doubtful
document is belied by the record of the Corporation and the admission
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made by the witness of the Corporation. The notice dated 7.5.2011 was
available on the file of the Corporation, but it was not replied. The Division
Bench of the High Court while deciding PIL No. 43/2012 filed by Janhit
Manch vide order dated 13.5.2013, has called for the inward register to
verify whether the Corporation received the notice and the High Court
had made following observations:
“(l) The Respondent no.5 has contended that it had submitted a
letter on 7th May 2011 under DCR 6(4) for further commencement
certificate and the application having not been refused, deemed
to have been granted.  The Petitioners have laid heavy emphasis
on the fact that the said letter purported to be of 7th May 2011 is
undated, and therefore there is no question of deemed permission.
It is true that the said letter is undated, but there is a receipt by the
Corporation of having received the application on 7th May 2011.
During the course of the hearing, the learned counsel for the
Corporation produced the original inward register.  We perused
the said inward register and found nothing suspicious or out of the
ordinary.  There is an entry of 7th May 2011 as regards receipt of
the application of the Respondent No.5, which seems to be made
in the usual course.  Admittedly this application is not decided by
the Corporation.  In the circumstances, we do not find that the
submission made by the Respondent no.5 that it had deemed
permission is without any substance. The Respondent no.5 has
filed a Civil suit taking this contention in which there is an interim
order passed in favour of Respondent no.5.”
   (emphasis supplied)
61. It is apparent that the Division Bench of the High Court has
seen the inward register also and there is a corresponding entry on
7.5.2011 as regards the acceptance of notice. It seems to have been
made in the usual course. In PIL No. 43 of 2012 filed by Janhit Manch,
no such plea was taken that the notice was not in Form XVI, and it was
illegal. In First Appeal No.884/2015, the Corporation did not challenge
the finding of the civil court, nor did it raise the ground that owing to the
failure to submit a notice in Form XV, the letter dated 7.5.2011 cannot be
treated as valid intimation and as such deemed permission did not accrue.
The main ground raised in PPL was about FSI, and concerning public
car parking proposal, pleadings were made in para 23 of the writ petition.
In para 25 it was pleaded that commencement certificate dated 1.10.2010,
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permitted construction only up to the plinth level for public parking lot
vide undated letter of Architect of respondent no.5 received by the
Building Proposal Department of the Corporation on 7.5.2011, respondent
No.5 through its Architect informed that the amended plan has been
approved by their office, and have completed the work as per the approved
plans, and sought further commencement certificate at the earliest. In
para 26, it was pleaded that the Corporation did not respond to the letter.
Paras 25 and 26 of the petition are extracted hereunder:
“25. Since the C.C. dated October 1, 2010, permitted construction
only up to the plinth level for Public Parking Lot, a further
Commencement Certificate was required for the ground + upper
floors above the plinth. By an undated letter of the Architects of
Respondent No.5 received by the Building Proposal Department
of the MCGM on 7th May 2011, Respondent No.5, through its
Architect, informed that “The amended plan submitted by us has
been approved by your office.  Further, we have complied all the
conditions of I.O.D. as well as amended plan, and we have
complied work up to plinth as per the approved plans.  You are
therefore requested to kindly check the plinth and grant us further
C.C. at the earliest.  This letter significantly is undated, and as
more particularly set out hereafter, it is evident that work on the
plinth was completed.  This was clearly a false contention as set
out hereafter.  Hereto
annexed and marked as Exhibit “O” is a
copy of the undated letter addressed by the Architect of
Respondent No.5 to the Executive Engineer (B.P.) City – I.
26. The MCGM apparently did not respond to this letter.  Based
upon the alleged lack of response, though no inspection was carried
out, Respondent No.5 now contends that it carried out construction
above plinth level pursuant to Regulation 6(4).  Significantly, on
the date of this letter of its Architect, there was no revised MOEF
permission for this Public Parking Lot, and Respondent No.5 was
not entitled to construct without prior permission of the MOEF
under the Environment Impact Assessment Notification, 1994.
This EIA Permission was only subsequently obtained on June 8,
2011.”
   (emphasis supplied)
62. It was not the case set up by Janhit Manch in the previous
writ petition (PIL) that the notice was not in Form XVI, and the letter
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dated 7.5.2011 did not fulfill the requirement of Form XVI. Instead, it
was admitted that it was received by the Corporation and was not replied
to and that the Architect intervened to have the work completed as per
the approved plan. In the special leave petition preferred in this Court
against the decision of the High Court in PIL No. 43/2012, this ground
was not raised, nor was it raised before the High Court in the PIL. In
SLP [C] No.20279/2013 as against order dated 13.5.2013 which was
decided on 11.3.2016, the following order was passed by this Court:
“Permission to file additional documents is granted.
Having heard the learned counsels for the parties, we are of the
view that there is no live issue for adjudication in the present
Special Leave Petition. The Special Leave Petition is disposed of
accordingly. However, we make it clear that in the event it becomes
so necessary, after receipt of the order passed by the Bombay
High Court, it will be open for the petitioners to make a mention
for recall of the present order.”
63. On 15.1.2018, IA No.6 was filed in SLP mentioned above,
and the following order was passed:
“I.A. No.6 IN SLP (C) NO.20279/2013
Upon hearing Shri Shekhar Naphade, learned Senior Counsel
appearing for the applicants we are of the opinion that in view of
subsequent developments and subsequent challenges which are
pending before this Court it is not necessary to reopen and
reconsider the
present I.A.  Therefore, the present I.A. (No.6)
shall stand closed.
Special Leave Petition (Civil) No.10704-10705 of 2016, Special
Leave Petition (Civil) No….. CC No.13523-13528 of 2016 and
Transferred Case (Civil) No.271 of 2017 shall, consequently, be
de-tagged and be listed before the appropriate Bench.  All issues
are kept open.
Office to post Special Leave Petition (Civil) No.10704-10705 of
2016, Special Leave Petition (Civil) No….. CC No.13523-13528
of 2016 and Transferred Case (Civil) No.271 of 2017 before the
appropriate Bench on 22nd January 2018.”
Thus, it was not considered appropriate by this Court to reopen
the matter and reconsider it. Thus, all the issues were left open. They
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were only those raised earlier in the PIL by Janhit Manch. It is also
pertinent to mention that in compliance of the order passed by the High
Court on 13.5.2013, the Corporation has passed order on 12.9.2013,
before filing the First Appeal in the High Court, in which the Commissioner
of the Corporation has clearly held that in view of notice dated 7.5.2011
as per DCR 6(4), the deemed permission came into effect on lapse of
15 days.
64. Though we have decided the plea on merits, however, it is
apparent from the aforesaid discussion that it is not open to the parties,
i.e., the principle of constructive res judicata bars the Corporation and
Janhit Manch to take somersault and take a different stand in the
subsequent litigation and all the available pleas, which could have been
taken in previous civil suit and PIL, ought to have been raised, otherwise
raising of them in subsequent lis.
65. It passes comprehension how Janhit Manch is raising the
question now that the notice dated 7.5.2011 was not served upon the
Corporation, whereas it has been admitted by it in the previous PIL that
it was served but was not attended to by the Corporation. In the written
statement filed by the Corporation before the city civil court, it is not
denied, and its witness has admitted that the notice was received and it
was not replied to by the Corporation. It is not open to the parties to take
a different stand at different stages. In the instant matter, these questions
cannot
be taken up by Janhit Manch, and the Corporation has not come
up in the appeal against the decision dated 13.5.2013 of the High Court
and has complied with the order bypassing the order dated 12.9.2013.
The Corporation is not before us in the appeal. It is only Janhit Manch
agitating the matter. Janhit Manch has preferred the special leave petition
in this Court as against the impugned judgment and order of the High
Court deciding the second PIL and SRUIL has come to this Court and
not the Corporation. As against the subsequent decisions taken by the
Corporation according to the impugned judgment and order, Janhit Manch
is before us.
66. Because of the discussion above, we are of the considered
opinion that firstly, the finding of the High Court concerning the illegality
of the notice dated 7.5.2011 is not sustainable on merits. In our opinion,
there was substantial compliance with Form, and the purpose of giving
notice is only to enable the Commissioner to inspect and ensure that the
construction raised is as per the sanctioned plan. There is admission
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made by the witness of the Corporation that the entire construction is as
per the sanctioned plan and since the Commissioner failed to inspect
after notice, thus deemed permission came into being; as such, it was
open to SRUIL to raise the construction of PPL up to 16th floor. There
was no illegality in the same.
67. Coming to the submission that construction up to the plinth
level had not been completed by 7.5.2011 when the architect gave the
notice. The notice was given about the PPL, which was received by the
Corporation. It was, therefore, open to the Commissioner to inspect and
to ensure whether the construction work was done up to the plinth level,
and it was as per the sanctioned plan. After that, to decide within 15
days of the notice whether to grant permission for further construction
or to refuse it. Thus, when it was open to making inspection as provided
in the notice, it having not been done by the Commissioner, it is not open
to the Corporation to contend that the work has not been completed up
to the plinth level, as it was open to verify the fact on the spot which was
not done. There is nothing to doubt the claim of SRUIL for the reasons
to be mentioned hereafter.
68. It is submitted on behalf of Janhit Manch that on 16.7.2011, a
notice was issued to SRUIL, and an inventory prepared on 22.7.2011 in
which it was mentioned that the work of PPL tower was in progress up
to plinth, as per commencement
certificate granted. Therefore, it is
submitted that the construction of the plinth was not complete even on
22.7.2011. Our attention has also been drawn on behalf of Janhit Manch
to report dated 11.11.2011 in which it has been mentioned that the work
of the PPL is found to be carried out up to the plinth level. Corporation
has issued a notice dated 29.11.2011 to SRUIL concerning the public
parking lot. In the notice dated 29.11.2011, it has been mentioned that
the construction has not been completed beyond the plinth level as such
why the permission should not be revoked, whereas the inventory dated
14.12.2011 of the Corporation indicates that the work up to 6th floor of
PPL is carried out. On 14.12.2011, the Corporation has issued second
stop-work notice. On 19.12.2011, notice under the MRTP Act was issued.
It was mentioned that the work of construction of PPL tower, 1st to 6th
floor (entire), and 7th to 9th floors (Part) is beyond CC granted. Thus, it
was mentioned by Corporation that by 19.12.2011, up to 6th-floor work
was complete and 7th to 9th floors were in progress; whereas in the
order of the court dated 24.12.2011 which is 4 to 5 days after that, the
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fact is mentioned that the work has been completed up to the 9th floor.
The Court granted the interim injunction because of the deemed
permission, according to the notice dated 7.5.2011, to complete the
remaining work.
69. It is pertinent to mention here that the witness examined on
behalf of the Corporation Mr. Ajay Sadanand Chawan stated in para 2
of the examination quoted above that so far as completion of the RCC
slab at each floor, there should be an interval of 2 to 3 weeks which is a
correct statement. In order to complete the RCC slabs up to the 7th
floor, reasonable time of 4 to 5 months is required. It is also pertinent to
mention here that an affidavit has been filed on behalf of the Corporation
on 4.5.2012. Para 4 of the affidavit filed by the Corporation is as under:
“(v) I submit that another Stop Work Notice dated 16th July 2011
was issued by these respondents to respondents no.5 for carrying
out the work by misrepresenting by way of showing amalgamation
of leasehold and freehold plot, but the same was withdrawn on
11th November 2011 as the same was rectified by the Respondent
no.5 and has given a registered undertaking.  The respondent,
no.5, was also directed to deposit a sum of Rs. One Crore with
MCGM.  The Respondent NO.5 has also agreed to convert their
freehold land to a leasehold land with the lease of 30 years as
against the existing lease of the leasehold land of 999 years.  The
said order is not in respect of the construction of
public parking
building, which to subject matter of the present petition.”
   (emphasis supplied)
70. It has been clearly admitted that show cause notice dated
16.7.2011 did not relate to PPL, and it was withdrawn on 11.11.2011,
and it related to other parts of the plot of SRUIL.  In view of the aforesaid
clear admission it is apparent that there is misrepresentation made by
Janhit Manch that this show cause notice related to PPL, in fact, same
is not related to PPL, as admitted by the Corporation in its affidavit; and
secondly when it has been mentioned in the notice dated 11.11.2011 that
the work up to plinth level only was complete, the aforesaid fact was
wrongly mentioned as in the notice dated 14.12.2011,issued by the
Corporation after few days, it was mentioned that the work up to 7th
floor had been completed. It passes comprehension when on 14.12.2011,
the Corporation mentions that the work had been carried out up to the
6th floor, and on 19.12.2011, it has also been mentioned that it has been
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completed up to 6th floor, and from 7th to 9th storey was in progress, how
overnight RCC construction of the various floors could have been
completed without lapse of 2 to 3 weeks for each of storey which is a
minimum period, as admitted on behalf of the Corporation by its witness
also. Thus, obviously, the work up to the plinth level had been carried out
by 7th May 2011, the date on which notice was given and deemed
permission came into force on the expiry of 15 days. Otherwise, 7th to
9th floors would not have been constructed by 19.12.2011. After that,
the total days available to SRUIL were 210 till 19.12.2011. Thus,
construction up to the 9th floor is bound to take at least 5 to 6 months
even if it is done at a fast speed, and it also included the monsoon season,
which also intervened in-between when work is slow or halted. It passes
comprehension when on 11.11.2011; it was mentioned that work was
only up to the plinth level, how within 35 days, a total of 9 floors could
have been constructed, one floor every 3 days. Thus, there was something
grossly amiss about what was happening on the part of the Corporation,
and absolutely wrong facts had been mentioned in the inventories, which
are contradicted by the facts mentioned in the notice for demolition and
also by the minimum time required for construction of each floor. Thus,
no reliance can be placed on the inventory dated 22.7.2011, and stop
work notice dated
16.7.2011 was not related to PPL. Thus, it cannot be
said that the work had been carried out in violation of stop-work notice
dated 16.7.2011 as submitted on behalf of Janhit Manch. The submission
has no legs to stand, and is hereby rejected.
71. In the inspection report dated 22.7.2011, it has not been
mentioned what is the name of the representative of SRUIL who was
present on the spot. Nor is it mentioned in the subsequent report of
November 2011. The Corporation has falsely mentioned in the notice
dated 29.11.2011 that the work of PPL had not been carried out beyond
the plinth level on 29.11.2011.  How within 19 days, construction of 9
storeys could be completed, can only be explained by some superpower,
and it appears to be a fairy tale. It appears that anyhow or somehow, the
Corporation sat over the intimation dated 7.5.2011. The Commissioner
did not inspect the plinth of PPL thereafter, and concerning the residential
portion, the stop-work notice dated 16.7.2011 had been issued. Notice
was withdrawn on 11.11.2011. After that, the notice was issued concerning
PPL by mentioning patently wrong facts on 29.11.2011 for reasons best
known to the Corporation. We are constrained to observe that the case
reflects some severe kind of rivalry and distortion of facts. There was
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an attempt made to ensure that the building is delayed or is demolished
by way of filing the PIL one after the other, taking different grounds at
different stages, many interventions have been filed. The Human Rights
Federation had also attempted to intervene in this Court. Though earlier,
a PIL, which was filed by it on 9.5.2014, was dismissed as withdrawn
on 7.11.2014 to approach an appropriate forum by way of filing
appropriate application/representation. The said intervenor also filed an
SLP before this Court challenging the impugned judgment and orders
dated 22,25,27.1.2016 passed by the High Court. This Court has rejected
the prayer, dismissed the SLP filed by the petitioner to avail of any other
remedy. After that, the intervention application has been filed. The
intervenor cannot enlarge the scope of PIL.  We have no hesitation in
rejecting the intervention application filed on behalf of the said Federation.
In re: whether construction of PPL is limited up to 4 upper
floors because of Circular dated 22.6.2011?
72. It is submitted on behalf of Janhit Manch that as per DCR
33(24) introduced w.e.f. 20.10.2008, “public car parking lot scheme”
was brought into effect. Thereunder for a PPL constructed on a plot of
land and handed over free of cost to the Corporation, the plot owner/
developer was entitled to receive incentive FSI inter alia to the extent
of 50% of the area of the PPL handed over by him. The unrestricted
construction of PPL followed
under the said Regulations.
73. It was submitted on behalf of Janhit Manch that the Government
had issued a Circular on 22.6.2011 to limit the PPLs to ground plus four
upper floors plus two basements. Thus, in the light of the Circular
mentioned above, notice has been issued by the Corporation for the
demolition of floors and why commencement certificate should not be
modified or revoked. Notice was issued on 29.11.2011. The counsel has
submitted that the notice dated 16.7.2011 was also issued. The Corporation
pursuant to a direction issued in PIL No. 43/2012 passed an order on
12.9.2013 relying upon the Circular that construction from 5th to 15th
floors of the PPL was not in consonance with the Circular of 2011. Mr.
Ahmadi also submitted that the draft amendment was proposed to amend
Regulation 33(24) on 19.3.2012. SRUIL had not submitted any modified
plan despite the direction of the Corporation. Later on, an amendment
had been incorporated on 6.8.2014 in DCR 33(24), restricting the height
as mentioned in the Circular. As such, construction is illegal, and its
regularisation could not have been ordered.
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74. The submission is untenable. We have gone through the various
orders passed by the High Court in which aforesaid circular of 2011 has
been quashed as the Development Control Regulations, 1991 are
statutory in nature and it was not open to issue any direction which is
executive in nature, either by the State Government or the Corporation
in derogation to the statutory provisions. When Regulation 33(24) was in
vogue, development permission had been granted to SRUIL in the year
2010. The provisions of DCR 33(24) containing no restriction on the
number of floors of PPL, came into force on 20.10.2008. Development
permission has been granted on 18.6.2010 after 1 year 10 months and
thereafter commencement certificate had also been granted on 1.10.2010
with respect to PPL and notice under which deemed permission accrued
under DCR 6(4) had been served on 7.5.2011 by the Architect.  Once
deemed permission accrued to SRUIL on lapse of 15 days, the
construction had been completed in 2012 before the amendment was
made in the Regulations in 2014. The order of regularisation was not
necessary because of deemed permission. Thus, in our opinion, the High
Court has rightly held that the decision of the Corporation applying the
said Circular was impermissible as it did not have the force of law, and
it stood quashed by the High Court in other cases. Thus, the submission
made by Mr. Ahmadi stands repelled.
75. It could not be said
that the Circular of 2011 was supplementary
to DCR 33(24). It was clearly in derogation to it and could not have
prevailed over a statutory provision. It was not necessary to question it
in the present petition by SRUIL as it has no force of law and has been
rightly quashed by the High Court in other cases.
In re: whether the sanction of the PPL building by way of
an endorsement of commencement certificate is illegal?
76. Mr. Ahmadi also submitted that initially, IOD was granted on
24.1.2005. After that, there was an amendment to the residential building
on 12.7.2005, and again, there was an amendment of the plan for
construction of a residential building on 7.11.2007, 2.2.2009, and
11.8.2009. SRUIL amended the plans from time to time for a residential
building in question. On 8.2.2011, the plan for residential building was
sanctioned for 56 floors. Because of the aforesaid, it is submitted on
behalf of Janhit Manch that it is a case of departure of substantial nature
from the initially sanctioned plan, DCR 6(5) governs the deviation during
construction. Even if the deviation is within the ambit of Regulation 6(5),
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the sanction is necessary under sections 337 and 346 of the Corporation
Act.
77. When we examine the submission, it is apparent that the
development permission has been granted. The residential building plan
has been approved. The commencement certificate was endorsed from
time to time. Amendment was made on 8.2.2011, and commencement
certificate was again endorsed on 8.2.2011 under DCR 33(24). The
PPL policy came into force in 2008, and its development plan was
sanctioned in 2010, and commencement certificate had been granted on
1.10.2010. The reliance has been placed on Regulation 6(5), the same is
extracted hereunder:
“6. Procedure during construction:-
(5) Deviation during constructions:—If during the construction of
a building, any departure of a substantial nature from the sanctioned
plans is intended by way of internal or external additions, sanction
of the Commissioner shall be necessary. A revised plan showing
the deviations shall be submitted, and the procedure laid down for
the original plans heretofore shall apply to all such amended plans.
Any work done in contravention of the sanctioned plans, without
prior approval of the Commissioner, shall be deemed as
unauthorised.”
78. It is apparent from the aforesaid Regulation 6(5) that the same
is applicable during the construction of the building, and any departure of
substantial nature from the sanctioned plan can be allowed by the
Commissioner. The provisions of section 337 do not restrict the
ambit
and scope of Regulation 6(5). Initial permission had been obtained for
development, and during construction, further variation could have been
made. The provision of section 346 is of no help as, at no point in time,
the development plan had been disapproved. The question of modifying
disapproval is not germane. The submission raised by Mr. Ahmadi is
held to be devoid of substance and cannot be accepted.
In re: Refuge Area
79. Janhit Manch submitted that the order dated 3.8.2016 passed
by the Municipal Commissioner concerning the refuge area is illegal. It
was further submitted that in the refuge area, occupants could take refuge
and also can be rescued by the fire officers. Access to refuge area has
been allowed, which is absurd that a disabled person or an older person
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will wait outside the flat, who stay at the 56th floor of the building to be
rescued by the fire officer in case of a fire in the building, access to the
area is difficult. In the case of senior citizens, disabled persons, small
children in the building, it defies common sense to provide for refuge
areas at such height, which are almost commensurate with the extent of
the habitable area shown and included in the FSI. It was further submitted
that the refuge area sanctioned by the Corporation in the order dated
31.8.2016 is a whopping 39,000 sq. mtrs against the habitable area of
54715.19 sq. mtrs., that is almost 60% of the habitable area. The said
areas have also been sold to flat buyers under the guise of decks/terraces
and are, in fact, a device to get the additional habitable area for sale to
flat buyers under the guise of refuge area. This point was agitated in
PIL No.43/2012. The High Court has disposed of the said PIL by
observing that the refuge area was excessive. It is urged that the
Corporation has now accepted the area was excessive. There was a
norm of 4%, and now Corporation has said that it has been now reduced
to 23%.  Janhit Manch has further submitted that the High Court in the
impugned judgment observed that the Commissioner should recalculate
the refuge area following the National Building Code (NBC). It is also
submitted that in the order dated 31.8.2016, it has been observed that
NBC cannot be
applied in toto as the refuge area is already constructed.
As the corporation has granted permission, refuge area has now been
reduced to 23% and structural columns can be allowed free of FSI in
the permissible area which is illegal, and four full refuge areas in one
floor are not necessary and cannot to be taken as refuge area as they
cannot be used in case of fire. It is submitted on behalf of Janhit Manch
that the decision of the Commissioner is illegal and entirely contrary to
DCR 44(7), which states that the refuge area over 4% of the habitable
area has to be counted in FSI. Reliance has been placed on DCR 43(1),
which provides that Chapter (iv) of NBC, 2005, shall apply unless the
matter is otherwise provided. It is submitted that the reasoning employed
by the Commissioner is perverse. On each floor, there are 4 flats of 4
bedrooms. Therefore, the maximum occupancy per flat can be estimated
to be about 6-7 persons or at best 10 persons per flat, which for 4 flats
will aggregate to 40 persons. Thus, the occupancy load of 322 persons
per floor, to say, is perverse and arbitrary. There is an arithmetical mistake
done while calculating the area. It is further submitted that as refuge
areas have been provided for four flats, in case of an emergency like a
fire, the fire brigade will find it impossible to access 144 different areas
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at the same point of time. It may not be in the interest of inhabitants. It
is further submitted that the Chief Fire Officer has permitted to provide
glass curtain walls on all sides of the building at refuge floors, regarding
the individual refuge floors on the four floors of the building. The CFO
has permitted glass curtain walls in the rest of the building, which makes
the 144 refuge areas inaccessible and unusable as refuge areas. The
areas are shown as refuge areas, and fire escape passages have been
sold as decks/terraces to flat purchasers and merged with the flats as
usable areas. The purpose is to create a balcony over the terrace. It
was submitted that merely because construction has been completed,
no equities can be claimed.
80. It is submitted on behalf of SRUIL that the vires of DCR
2(13), 2(42), and 2(44) have not been questioned. The regulations
described above contain a clear and unambiguous provision which was
in force at the relevant time. It is also submitted that Regulation 44(7) is
significant in this regard. The only requirement is the minimum area of
15 sq.mtrs of a specific width. There is no other restriction on the grant
of refuge area. Regulations in respect of fire and safety are not
exhaustive, and CFO is an expert authority to consider the requirement
of high-rise buildings. It is also submitted that Regulation 44(5) makes it
mandatory for high-rise and special buildings and exempts them from
FSI calculations under DC
Regulation 35(2)(d). It is further submitted
that in the NOC granted by the CFO vide order dated 30.12.2006, it has
been directed to provide requisite area as approved in the plan. The
recommendation made by the CFO is the recommendation of an expert,
which has expressly been recognised in DSR 5(ii). The Circular dated
21.9.1993, which is issued by CFO, provides for the size of the refuge
area with the minimum requirement of 4% of the total built-up area and
the size of each refuge area. The built-up area has been defined as the
total built-up area. The circular is not a statutory circular and does not
amend the DC regulations. Regulations are in the form of delegated
legislation, as observed in Pune Municipal Corporation & Anr. v.
Promoters & Builders Association & Anr. (2004) 10 SCC 796.
Directions issued by the Urban Development Department dated
2.12.1993 required the Municipal Commissioner to withdraw the
guidelines issued by the CFO as they were not in conformity with the
DC Regulations. It is urged on behalf of SRUIL that DC Regulations
cannot be amended except by following the procedure under the Town
Planning Act under section 37. Executive Circulars cannot amend the
SHREE RAM URBAN INFRASTRUCTURE LTD. & ANR. v.
STATE OF MAHARASHTRA & ORS. [ARUN MISHRA, J.]
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regulations as observed in Godrej and Boyce Manufacturing Co. Ltd.
v. State of Maharashtra & Ors., (2009) 5 SCC 24. Thus, relying on
circular, the submission that the refuge area as recommended by the
CFO and the corporation is excessive and contrary to DC Regulations is
erroneous and incorrect.
81. The determination of the refuge area was done by the CFO,
who is the competent and technical authority. The decision of the CFO
has been revisited by 3 successive Commissioners and has been confirmed
while approving the sanctioned plan merely because some apprehension
was raised about possible misuse of the refuge area. It is impermissible
to revisit the said decision. SRUIL submits that while order dated
31.8.2016 allowed free of FSI of 16262.06 sq.mtrs, that is the area at
the external periphery and has further directed that this should be
mentioned in and prominently displayed in the building. In Indore
Municipal Corporation & Anr. v. Dr. Hemalata & Ors., (2010) 4
SCC 435, possible misuse of the refuge area had been considered, and
the court observed that based on possible misuse, the planning permission
cannot be questioned nor can be revoked. This Court has observed:
“14. The fact that the sanction is for a residential-cum-commercial
purpose is not disputed by the respondents. They have never
claimed that they will use the building contrary to the permissible
user. Even before the completion of the construction and
obtaining
of occupation certificate, without issuing a show-cause notice
alleging such misuse, an order has been issued alleging a violation
of the permitted user. There is no occasion for the second appellant
to assume that the respondent is likely to violate the sanctioned
user. After the issue of occupancy certificate, if there is any
violation of sanctioned use, it is always open to the Municipal
Corporation to take appropriate action in accordance with law at
that stage. The finding in the order dated 11.4.2000 that there has
been a violation of the Rules in this behalf, is unwarranted and at
all events premature.”
82. It is further submitted on behalf of SRUIL that Maharashtra
legislature has passed an Act known as the Maharashtra Fire Prevention
& Life Safety Measures Act, 2006, which has received the assent of
the President on 5.2.2007. Section 3 of which mandates owners to provide
for fire prevention and life safety measures and also prescribes a stringent
penalty for non-observance of such conditions.  A Director or Chief Fire
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Officer has been empowered to prescribe measures for fire prevention
and life safety measures.  It is further urged that the National Building
Code is in respect of the fire protection requirement of high-rise buildings
(15 meters and above). As per clause C-1.11 provisions contained in
clause 4.12.3 shall apply for buildings except for multi-family dwellings,
refuge area of not less than 15 sq.m. shall be provided on the external
walls. Clause 4.12.3 of the National Building Code does not stipulate
4% as a requirement of the refuge area. Even if the NBC provides that
anything in excess of requirement is to be counted in FSI and that refuge
area in excess of 4% is to be counted in FSI, it is submitted that it would
require amendment of DCRs 35 and 44(7) by following the procedure
under section 37 of the MRTP Act.
83. When we consider the order that has been passed by the
Municipal Commissioner pursuant to the impugned judgment passed by
the High Court, re-determining the refuge area, it has been reduced to
23% only. The CFO has considered the higher requirement of building
and providing a separate refuge area for each of the flat that is to say
that four refuge areas on each floor, one attached to each flat, has been
approved by the CFO and the corporation. The permission was granted
way back in the year 2006 and the inspection note dated 11.11.2011
indicates that the construction of the residential building had been carried
out up to a height of 180
meters i.e., 36th floor, the permission was granted
in 2006 and commencement certificate has also been issued from time
to time as mentioned above. The construction of the residential building
had been raised to the 36th floor in 2011, and Janhit Manch awakened
the first time to file PIL No. 43/2012 in the High Court. Thus, it was a
belated petition. For fire safety, with respect to the refuge area, the view
of the Fire Safety Officer has to prevail not ipse dixit whether it would
be appropriate to have more area or the lesser cannot be said to be
acceptable which appears to be a hang-over, the objection appears to be
more the outcome of some grudge harboured by unknown hands behind
Janhit Manch.
84. The objections have been raised on behalf of Janhit Manch
concerning the height of service floor and elevation features like flower
beds, ornamental projection, servant toilets, and structural columns
concerning which the Commissioner, Municipal Corporation has given
in extensive details the reasons for the decision rendered by it. This
Court is not an expert in the field of determination of refuge area and in
SHREE RAM URBAN INFRASTRUCTURE LTD. & ANR. v.
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our opinion, when Corporation and Chief Fire Officer had granted
permission, it cannot be said that any tremendous public purpose is going
to be served by entertaining the belated objections which appear to be
the outcome of some business rivalry between warring groups. We find
the order passed by the Municipal Commissioner dated 31.8.2016 with
respect to refuge area cannot be said to be illegal or arbitrary in any
manner in the facts and circumstances of the case, mainly due to the
fact that permission had been granted by the CFO as well as the
corporation which has been questioned belatedly. The order dated
31.8.2016 is upheld as we are not inclined to interfere on the aforesaid
grounds in the peculiar facts and circumstances of this case.
In re: order of the Additional Municipal Commissioner
dated 10.11.2016 and the notice under section 51 of the Act :
85. It is submitted on behalf of Janhit Manch that show-cause
notice dated 29.11.2011 was issued under section 51 of the MRTP Act.
A reply was filed on 14.12.2011 in which stand was taken that provisions
of section 51 are not applicable, and despite the notice, SRUIL did not
stop the work as such the notice for demolition was issued on 19.12.2011.
Ultimately, pursuant to the direction issued in PIL No. 43/2012, it was
decided by the Municipal Commissioner on 12.9.2013 that PPL above
5th to 15th floors was not in consonance with the circular of 2011. Thus,
no
incentive FSI would accrue. It was submitted that the corporation
took the stand that no decision was pending on show-cause notice dated
29.11.2011, as stated in the affidavit dated 26.2.2014. The High Court in
the impugned judgment held that the Commissioner was required to re-
work the FSI; hence, SRUIL ought to have submitted the modified plans.
As SRUIL submitted no fresh proposal for development permission, the
application for regularisation was not in compliance. On 10.11.2016, the
Additional Municipal Commissioner passed an order deciding the show-
cause notice dated 29.11.2011 and held that the construction of the PPL
had substantially progressed, and as such, the entire PPL can be
regularised, is contrary to law.
86. We have held there was deemed permission for PPL under
DCR 6(4) as per notice of Architect dated 7.5.2011; thus, the submissions
raised cannot be accepted. Moreover, it is not necessary to go into the
question of whether the notice dated 29.11.2011 survives or not for the
decision, as we have held that there was deemed permission. Thus,
there was no question of regularisation of the PPL. The submissions are
devoid of substance and as a result of this repelled.
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87. We have not accepted the finding of the High Court concerning
deemed permission as to PPL. Thus, the findings recorded in the judgment
and order and the submission raised on that basis by Janhit Manch, cannot
be said to be sustainable. The consequent order of the Corporation in
that regard falls.
88. We place it on record that we have examined the matter on
merits, notwithstanding that we are not satisfied with the bona fides of
PIL, as the litigation has a chequered history and has several rounds.
Hence, we ignore the aforesaid aspect.
89. In the circumstances, we have no hesitation in setting aside
the order of the High Court in part and also set aside the finding recorded
by the High Court that no deeming permission accrued under Regulation
6(4) of Development Control Regulations, 1991. In our opinion, deemed
permission accrued, and concerning the determination of refuge area as
per order dated 31.8.2016 passed by the Municipal Commissioner, no
interference is called for. Order dated 31.8.2016 passed by the Municipal
Commissioner regarding the refuge area is upheld. Petitions filed by
Janhit Manch – PIL [L] No.133/2015, T.C. No.271/2017 and T.C.
No.6/2018 deserve dismissal and are, as a result of this, dismissed.
90. Let the Corporation take over PPL and proceed further to
decide concerning 13 floors, i.e., 44 to 56 floors of residential building
within one month from today.
Kalpana K. Tripathy
                                         Matters
disposed of.
SHREE RAM URBAN INFRASTRUCTURE LTD. & ANR. v.
STATE OF MAHARASHTRA & ORS. [ARUN MISHRA, J.]