1. Application for construction permission under the Bombay Metropolitan Region Development Authority Act — Initial rejection quashed by High Court — Fresh rejection passed after statutory period — Claim of deemed permission. (Para 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 )
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1994 Supreme(SC) 1268
SUPREME COURT OF INDIA
BEFORE B. P. JEEVAN REDDY AND SUHAS C. SEN, JJ.
BOMBAY METROPOLITAN REGION DEVELOPMENT AUTHORITY, BOMBAY
Versus
GOKAK PATEL VOLKART LTD. AND OTHERS.
Civil Appeal No. 9152 of 1994 with Nos. 9153-54 of 1994
Decided on 13-12-994
Advocates appeared:
Harish N. Salve and Atul Setalvad, Senior Advocates (U.A. Rana, Rajiv Tyagi, Anand Prasad and A.S. Bhasme, Advocates, with them) for the Appellant; F.S. Nariman, Senior Advocate, Milon Seth, Bharat Damodar, Ravi Gandhi, R. Sasiprabhu, Advocates (D.N. Mishra, Advocate for JBD & Co., with him) for the Respondents.
Important Points
A statutory deeming provision triggered by failure to pass an order within a specified period does not apply to a fresh order passed pursuant to a court's direction, provided the initial order was passed within the statutory limit. The consequential order is not bound by the original limitation period.
Subject
Administrative Law - Judicial Review
Act Referred
Headnote
Bombay Metropolitan Region Development Act, 1974 - Section 13, 346 - Tenants - Eviction of Tenants - Construction of a Thirty-Storeyed Building Utilizing - Establishment of an Authority - Development Control Rules existent at the relevant time permitted construction of building on FSI zone in which above property was situated - Plan was approved by Corporation and Intimation of Disapproval (IOD) was granted to the Company under Section 346 of the Bombay Municipal Corporation Act. It was stipulated in the IOD that no work should be started unless the existing structures proposed to be removed were in fact removed - It was also stated in the IOD that it was given exclusively for the purposes of enabling the party to proceed further with arrangements of obtaining "No Objection" Certificate from the Housing Commissioner - In pursuance of the IOD granted by the Corporation, the Company initiated proceeding for eviction of the tenants from the existing structures on the property in question - Ultimately in August 1979, tenants were evicted and old structures were demolished - In meantime State Legislature of Maharashtra enacted to provide for establishment of an authority for the purpose of planning, coordinating and supervising the proper, orderly and rapid development of the areas falling within that region – Held, If valuation list was entirely quashed there will be chaos. Therefore, the existing list could remain until it was replaced by a new list, when the new list was prepared the old list will be quashed by writ of certiorari. Lord Denning was of the view that certiorari was not a necessary prerequisite to mandamus - Having regard to the view, however, that I take of the facts, the point as to whether the 1963 list could be temporarily kept alive were mandamus to issue does not arise for decision and I express no concluded opinion upon it – Appeal disposed of
Legal Category Hierarchy
Advocates:
A.S.BHASME, ANAND PRASAD, ATUL SETAWAD, BHARAT DAMODAR, D.N.Mishra, F.S.NARIMAN, HARISH N.SLAVE, MILON SETH, R.SASIPRABHU, RAJIV TYAGI, RAVI GANDHI, U.A.RAMA
A.S.BHASME, ANAND PRASAD, ATUL SETAWAD, BHARAT DAMODAR, D.N.Mishra, F.S.NARIMAN, HARISH N.SLAVE, MILON SETH, R.SASIPRABHU, RAJIV TYAGI, RAVI GANDHI, U.A.RAMA
Table of Contents
2. Maintainability of writ petition despite alternative remedy — Applicability of statutory time-limit for passing a fresh order following the quashing of an initial order. (Para 12 , 14 )
3. Existence of alternative remedy bars writ jurisdiction — Deeming provision triggers only upon failure to pass initial order — Fresh orders directed by courts are not bound by original statutory limits. (Para 13 , 14 , 16 , 17 , 18 , 24 , 26 )
4. A consequential order passed pursuant to a court's direction to reconsider an application is not subject to the statutory limitation period applicable to the initial order. (Para 19 , 20 )
5. Appeal allowed — High Court judgment set aside — Appellant permitted to proceed in accordance with law. (Para 29 , 30 , 31 )
6. Does a deeming provision for permission apply if an initial order was passed within the time limit but subsequently quashed?
No. The deeming provision operates only if the authority fails to pass any order within the stipulated period. If an order was passed within the time limit, the fact that it was later quashed does not trigger the deeming fiction. (Para 16 , 17 , 26 )
7. Is a fresh order passed under a court's direction to reconsider an application subject to the original statutory limitation period?
No. When a statute prescribes a limitation for an initial order, a consequential order passed to give effect to an appellate or court direction is not subject to that same statutory period of limitation. (Para 19 , 20 )
8. Can a writ petition be entertained when an alternative statutory remedy is available and has already been invoked?
Generally, no. If a petitioner has an adequate alternative statutory remedy and has already availed of it, particularly while the statutory appeal is still pending, a writ petition should not be entertained. (Para 12 , 13 )
JUDGMENT
SEN, J.—Leave granted.
2. On 28-5-1974, Gokak Patel Volkart Ltd, submitted a plan for construction of two houses at premises Nos. 124-126 Wodehouse Road, Colaba, Bombay, to the Municipal Corporation of Greater Bombay. The said two houses were occupied by tenants. The plan was for construction of a thirty-storeyed building utilising Floor Space Index (for short FSI) of 2.45 of the said plot.
3. The Development Control Rules existent at the relevant time permitted construction of building on the FSI of 2.45 under R-8 FSI zone in which the above property was situated. The plan was approved by the Corporation and on 13-9-1974 Intimation of Disapproval (IOD) was granted to the Company under Section 346 of the Bombay Municipal Corporation Act. It was stipulated in the IOD that no work should be started unless the existing structures proposed to be removed were in fact removed. It was also stated in the IOD that it was given exclusively for the purposes of enabling the party to proceed further with arrangements of obtaining "No Objection" Certificate from the Housing Commissioner under Section \?>(bb) of the Bombay Rents, Hotel and Lodging House Rates Control Act. In pursuance of the IOD granted by the Corporation, the Company initiated proceeding for eviction of the tenants from the existing structures on the property in question. Ultimately in August 1979, the tenants were evicted and old structures were demolished. In the meantime, in 1975, the State Legislature of Maharashtra enacted the BOMBAY METROPOLITAN REGION DEVELOPMENT ACT , 1974 (Maharashtra Act No. IV of 1975) to provide for the establishment of an authority for the purpose of planning, coordinating and supervising the proper, orderly and rapid development of the areas falling within that region. The said Act came into force with effect from 26-1-1975. Section 13 of the Act provides:
"13. (1) Notwithstanding anything contained in any law for the time being in force, except with the previous permission of the Authority, no authority or person shall undertake any development within the Metropolitan Region of the type as the Metropolitan Authority may from time to time specify, by notification published in the Official Gazette, and which is likely to adversely affect the overall development of the Metropolitan Region.
(2) Any authority or person desiring to undertake development referred to in sub-section (1) shall apply in writing to the Metropolitan Authority for permission to undertake such development.
(3) The Metropolitan Authority shall, after making such inquiry as it deems necessary and within 60 days from the receipt of an application under sub-section (2), grant such permission without any conditions or with such conditions as it may deem fit to impose or refuse to grant such permission. If such permission is not refused within 60 days as aforesaid, it shall be deemed to have been granted by the Authority.
(4) Any authority or person aggrieved by the decision of the Metropolitan Authority under sub-section (3), may, within 30 days, appeal against such decision to the State Government, whose decision shall be final."
4. The Metropolitan Authority, in exercise of powers under sub-section (1) of Section 13 of the said Act, published in the Official Gazette a notification dated 10-6-1977 providing, inter alia, that no construction or reconstruction of any building including addition to any existing building shall be carried out so as to have a Floor Space Index exceeding 1.33.
5. As a result of the provisions of Section 13(1) of the Act and the notification dated 10-6-1977, a person desiring to undertake development in contravention of the notification had to apply in writing to the authority for permission to undertake such development. The authority could grantpermission without any condition or with such conditions as it thought fit or refuse to grant such permission. This has to be done within 60 days from the receipt of the application under sub-section (2) of
