IMPORTANT POINT
Issuance of an order of demolition of an additional floor constructed by appellant in his Hotel at Panchgani and subsequent concurrence thereof by the High Court in a writ petition filed by the Appellants herein is not sustainable, as it is not in violation of Maharashtra Regional Town Planning Act, 1966 or Municipal Rules.

Headnote:Constitution of India-Articles 136 and 226-Maharashtra Regional & Town Planning Act, 1966-Section 45-Appellant herein commenced the construction of an additional floor in the existing Hotel premises after conferment of a 3 star status in Panchgani Hill Station of Maharashtra-Bona fide belief of Appellant based on sanctioned plan by the Director, Town Planning-Issuance of order of demolition by Panchgani Municipal Council-Appellants approaching High Court by writ-Dismissed-Review also dismissed-Appeal to Supreme Court by special leave-Whether appellant s action is in violation of Municipal Act and Rules? (No)-Question of violation of ecological balance-Not pressed-No res judicata-Submissions of interveners, Municipal Council and State Govt. not accepted-Appeals allowed accordingly.
       Held : Ecological imbalance and non-conformity of the Municipal Rules are however two independent and separate factors to invoke the jurisdiction of the law courts and either of the two factors however would prompt the law courts to pass necessary orders by reason therefor to protect the environment. (Para 3)
       On Facts
       Held : It is in this factual matrix, the High Court dealt with the matter. At the first stroke, it seems rather significant though the High Court in the earlier judgment has categorically recorded that if the benefit of the Government resolution of the year 1971 has already been given, then and in that event, those cases are not to be disturbed and thus not to be reviewed. The High Court while incorporating the same recorded that it is an admitted position that the plans for additional floors were not sanctioned by the respondent No.1 and as such, the issue does not seem to have any benefit from the order of the Division Bench - at the first sight, it seems no exception can be taken on this but on a closer scrutiny of the record displaces such an observation of the High Court. By the letter dated 8/13th June, 1995, the Director, Town Planning has categorically recorded grant of permission of additional FSI and having regard to an additional floor, it would obviously be more than the sanctioned height of the building. The appellants were not only authorised to construct an additional flour but the memo also contained a relaxation on the height as well to the extent of 3.20 meters than the permissible sanction limit. The letter in question stands extensively quoted in the earlier part of the judgment and the emphasised portion would depict the conclusion as has been noticed hereinbefore. The situation therefore, turns out to be that the Director, Town Planning being the authority in terms of the provisions of law did grant sanction of an additional floor with an additional height of 3.20 metres upon proper relaxation being granted. This aspect of the matter, the High Court has not considered at all and thus clearly fell into an error. It is to be placed on record that Director himself as a matter of fact did place reliance on provision 28.2 of the bye-laws applicable to B and C class municipalities in the State of Maharashtra. The entire reference to the Director was by reason of the above said provision and all the statutory agencies have acted thereupon. The above noted provision 28.2 reads as below :
       "28.2 The Director of Town Planning may permit special relaxation to any of the bye-laws, provided the relaxation sought does not violate the health safety, fire safety, structural safety, public safety of the inhabitants and the buildings and the neighbourhood."
       The proviso noticed above having the definite application in the contextual facts, sanction from the Director, Town Planning in terms of the Standardised Building Bye-laws for "B" and "C" Class Municipal Council of Maharashtra supersedes any further power of the council. As a matter of fact, the power conferred under 28.2 being supreme, the Council is under statutory obligation to abide by the directions as contained in the Director s letter as above, and grant sanction in terms of Section 45 of the MRTP (for short) but in accordance therewith: Thus power stands absolute and there is no escape from that situation. We however, ought not to be understood to record the unguided power of the Director - The powers of the Director also stand circumscribed by and under the provision 28.2 itself and to the effect that exercise of such a power pertains to the grant of additional FSI and correspondingly authority and jurisdiction to grant relaxation as regard the height. (Paras 19 & 20)
       Mr. Dave s definite submission however has been that the appellants are not entitled to get the additional FSI and thus resultantly no relaxation on heights also is permissible. We are however, unable to record our concurrence therewith by reason of the factum of the issuance of the letter by the Director, Town Planning Department in terms of provision of Rule 28.2 and the entitlement follows therefrom. The issue of res-judicata as urged by Mr. Dave need not detain us for long since in our view, the doctrine or even constructive res judicata cannot possibly be have any application in the contextual facts. The other aspect of the matter requiring consideration pertains to the letter dated 31.12.1996 addressed to the Chief Officer, Municipal Council, Panchgani by the Assistant Director, Town Planning, Satara wherein the latter intimated the Municipal Council that sanction should not be granted taking into consideration the sanctioned development plan of the Panchgani city. The reason for such a refusal as available therefrom has been stated to be:
       "Area of the construction of the building of the first floor and ground floor carried out at the said premises i.e. total area of construction is more than the construction area which is permissible and sanctioned by the Hon ble Director, Town Planning, Maharashtra State, Pune vide letter No.DS/Panchgani/Star Hotel/final Plot No. 414-E T.P.S.3/TPV-2/3/3060/dated 13.6.95."
       Needless to record and as noticed hereinbefore that the Council acting on the basis of such an intimation rejected the planand issued the impugned notice. Even a cursory look at the sanction letter dated 8/13.6.1995 belies the contents of the letter under reference dated 31.12.1996. The sanction pertains to the additional FSI vis-a-vis the circular issued by the Government dated 7th October, 1971. The sanction letter dated 8/13.6.1995 did not speak of construction or grant of sanction pertaining to the ground and first floor at the said premises. The Director, Town Planning by the letter dated 8/13.6.1995 never sanctioned any construction area in the ground and first floor at the same premises. As a matter of fact, the letter under reference dated 31.12.1996 seems to be overriding the order of the Director. Significantly, however the letter dated 31.12.1996 corroborates the stand of the appellants that there was in fact a sanction by the Director, Town Planning vide letter dated 8/13.6.1995. While it is true that sanction was granted for additional FSI as also increased height but there was never any mention or any sanction conveyed for ground and the first floor construction in the letter. It cannot thus but be termed to be the brain child of the Assistant Director who has, in fact, superseded the order of the Director - is this a permissible state of affairs? Mr. Deshpande offered us an answer in silence! Obviously he does not have anything else at his disposal to justify the issuance of the letter. Provision No. 28.2 of the Development Control Regulation has been taken recourse to and the Assistant Director not been able to avoid the same, simply recorded the factum of construction area on the ground and first floor being in excess of the sanction granted by the Director, Town Planning. The act or acts on the part of the Assistant Director by reason of the contents of the letter dated 8/13.6.1995 cannot but be said to be wholly without jurisdiction and consequently the action on the basis thereof as taken by the Municipal Council cannot also be sustained. The observations as noticed hereinbefore thus stands supported by the municipality s own public notice. This aspect of the matter has also escaped the attention of the High Court and as such, the High Court fell into a clear error. As regards the issue of deemed sanction, the High Court answered it in the negative recording therein that the appellants were refused of any sanction though beyond the period as such deemed sanction would not arise. Unfortunately, we cannot lend our concurrence thereto. Panchgani Municipal Council being a C Class Municipal Council of Maharashtra in its Standardised Buildings Bye-laws, in particular, bye-law 9.2 records that while the authority may sanction or refuse a proposal, there stands an obligation on the part of the authority to communicate the decision and where no orders are communicated within 60 days from the date of submission of the plan either by way of a grant or refusal thereto, the authority shall be deemed to have permitted the proposed construction. In view of our observations noticed hereinbefore, we are not inclined to go into this issue in any detail suffice however to record that the submissions pertaining to deemed sanction has substance and cannot be brushed aside in a summary fashion. Eventual rejection does not have any manner of correlation with deemed sanction - it is only that expiry of the 60 days that the sanction is deemed to be given, subsequent rejection cannot thus affect any work of construction being declared as unauthorised. The deeming provision saves such a situation. As noticed above, we are not inclined to detain ourselves any further on this score. Incidentally, be it noted that even though at the initial stage of hearing, environmental degradation was spoken of but the same have not been adverted to at all at the time of final submissions - the same were restricted to municipal violations. Environmental Audit Report has not seen the light of the day. Obviously, there would not be any such affectation and we also thus do not feel it expedient to deal with that aspect of the matter. In the view we have taken, we are unable to record our concurrence with the submissions of both the Intervenors and Municipal Council as well the State Government. The Appeals are thus allowed. The order of the High Court stands set aside. It is however made clear that in the event of there being any infraction of the order of the Director pertaining to additional F.S.I. and the height as relaxed by the Director and in the event of there being any infraction of the Building Rules concerning the ground and the first floor or the basement thereof, the municipality would be at liberty to take appropriate steps in accordance with law. We do feel it expedient to direct further that the appellants should furnish a fresh undertaking as regards the user of the basement in this Court within a period of four weeks from the date of the availability of a copy of this judgment. The Registry is directed to make available a copy of this judgment to the appellants with utmost expedition. No order however as to costs. (Paras 23 to 31)

JUDGMENT

Banerjee, J.-Leave granted.

2. The appellants herein, moved this Court under Article 136 of the Constitution of India seeking special leave to appeal against the orders of the Division Bench of the High Court of Judicature at Bombay in the matter of dismissal of the writ petition being No. 2226 of 1999 dated 10th July, 2000 as also an order of dismissal of the Review Petition dated 6th November, 2000. By the impugned order of dismissal, the High Court did lend its concurrence to an order of demolition of an additional floor constructed by the appellants in Panchgani said to be in violation of the Municipal Rules as also of the direction contained in an earlier judgment of the same High Court in a public interest litigation being No. 2754 of 1997 wherein the High Court has dealt with a circular issued by Urban Development, Public Health and Housing Department in 1971. Incidentally, be it noted that various public interest petitions have been filed before the High Court seeking to prevent construction and/or regular constructions in the Mahabaleshwar-Panchgani area in the State of Maharashtra being an ecologically sensitive belt. In the writ petition filed by the Bombay Environmental Action Group the bone of contention of the appellants had been that there was large scale illegal construction and deforestation in the Mahabaleshwar-Panchgani region resulting in wide spread environmental and ecological degradation to these two hill stations in the State of Maharashtra. The High Court upon consideration of the pleadings and the facts on record passed various orders from time to time and finally dealt with the matter in its judgment dated 18th November, 1998 containing certain directions in order to put an embargo to the constant exploitation of nature resulting in ecological imbalance in the area and thus to avoid the bio-diversity crisis. The appellants herein were also parties therein as respondent No. 17.

3. Ecological imbalance and non-conformity of the Municipal Rules are however two independent and separate factors to invoke the jurisdiction of the law courts and either of the two factors however would prompt the law courts to pass necessary orders by reason therefor to protect the environment.

4. Before adverting to the contextual facts in the present appeals under Article 136 of the Constitution, the earlier order of the Bombay High Court spoken of hereinbefore in this judgment dated 18th November, 1998 ought to be adverted to so as to appreciate the resultant culmination on to the issuance of an order of demolition by the Panchgani Municipal Council and subsequent concurrence thereof by the High Court in a writ petition filed by the appellants herein.

5. Incidentally, be it noted that the two hill stations of Panchgani and Mahabaleshwar recently have been acclaimed to be very popular tourist resorts and tourism has thus turned out to be a great economic benefactor to the State - and it is this possible improved economic situation that the State Government in the year 1971 issued a circular (more fully dealt with hereinafter in this judgment) under which an additional FSI was made available to the luxury hotels (with 3 star facilities and above) - obviously the State Government at the time of issuance of the circular had in its mind the long catena of cases of this Court as also that of various High Courts that while ecology cannot be given a go by, in the same vein development process cannot be ignored: As a matter of fact the law courts thus evoked the factum of striking of a balance between the development and ecology since in a developing economy there cannot be either development or ecology but both must exist and thus a balance shall have to be struck between the two, as otherwise the society will perish in the absence of either of the two elements noticed above.

6. In this context, two decisions ought to be adverted to briefly: one from the Calcutta High Court and the other of this Court. In the Calcut

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2001 Supreme(SC) 1197

Cases Referred (2)