1. Dispute over legality of residential building and public parking lot construction — Issues concerning commencement certificates, incentive FSI, and refuge area calculations under MRTP Act and DCR. (Para 1 , 2 , 3 , 4 , 10 , 11 )
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2019 Supreme(SC) 1190
SUPREME COURT OF INDIA
ARUN MISHRA, VINEET SARAN, JJ.
SHREE RAM URBAN INFRASTRUCTURE LTD. & ANR – APPELLANTS
VERSUS
STATE OF MAHARASHTRA & ORS – RESPONDENTS
CIVIL APPEAL NOS 8265-8266 OF 2019 [Arising out of SLP [C] Nos.10704-05 of 2016] WITH CIVIL APPEAL NOS. 8267-8272 OF 2019 [@ S.L.P. [C] .….CC Nos.13527-13528 OF 2016] TRANSFER CASE [C] NO.271 OF 2017 AND TRANSFER CASE [C] NO.6 OF 2018
Decided On : 24-10-2019
Important Points
IMPORTANT POINTS
If the Commissioner does not grant or refuge permission within 15 days of inspection, permission would be deemed to be granted.
As regards refuge area, determination by CFO must prevail.
If the Commissioner does not grant or refuge permission within 15 days of inspection, permission would be deemed to be granted.
As regards refuge area, determination by CFO must prevail.
Subject
Administrative Law - Municipal Law
Act Referred
CORPORATIONS ACT: S.337, S.346
DEVELOPMENT CONTROL REGULATION: Reg.6(4), Reg..35(2)(d), Reg..33(24)
MAHARASHTRA REGIONAL AND TOWN PLANNING ACT: S.37, S.51, S.22(m)
MUMBAI MUNICIPAL CORPORATION ACT: S.354
DEVELOPMENT CONTROL REGULATION: Reg.6(4), Reg..35(2)(d), Reg..33(24)
MAHARASHTRA REGIONAL AND TOWN PLANNING ACT: S.37, S.51, S.22(m)
MUMBAI MUNICIPAL CORPORATION ACT: S.354
Headnote
(a) Maharashtra Regional and Town Planning Act, 1966 - Section 48 r/w Regulation 5(6), Development Control Regulations for Greater Bombay, 1991 - Construction done up to plinth level within four years from date of development permission - Not necessary to obtain development permission afresh. (Para 41)
(b) Development Control Regulations for Greater Bombay, 1991 - Regulation 33(24) - Approval granted to raise the PPL, plan sanctioned for PPL as well as residential building, and PPL completed before promulgating restrictions on floors of PPL - PPL validly constructed under deemed permission - Construction not illegal - Additional FSI would be available on Corporation taking over the PPL - High Court rightly directed Corporation to take a decision regarding top 13 floors of the residential building. (Para 44)
Development Control Regulations for Greater Bombay, 1991 - Regulation 6(4) - All approvals contemplated by Regulation 33(24) in place before commencing construction of PPL - Permission applied - Intimation given to Commissioner for inspection - Inspection not done for 15 days as required - Commissioner neither refusing nor granting permission - Non refusal rightly taken as deemed permission. (Para 45)
(c) Development Control Regulations for Greater Bombay, 1991 - Regulation 6(4) - Satisfaction as to construction as per sanctioned plan is that of the Commissioner - not the Architect of Builder - Commissioner required to inspect the site within 15 days of intimation - he has to pass an order either granting or refusing permission - In case no order is passed, permission would be deemed to have been granted. (Para 53, 57, 66)
(d) Code of Civil Procedure, 1908 - Section 11 - Constructive res judicata - Parties cannot take a different stand in subsequent litigation - All available pleas ought to have been raised in previous suit - Not in subsequent lis. (Para 64)
(e) Development Control Regulations for Greater Bombay, 1991 - Regulation 6(4) - Notice - There should be substantial compliance with Form and its purpose should be clear. (Para 66)
(f) Administrative law - Circular of 2011 - Not supplementary to DCR 33(24) but in derogation to it - Rightly quashed by High Court - No executive direction could be issued under the said circular. (Para 74)
(g) Development Control Regulations for Greater Bombay, 1991 - Regulation 6(5) r/w sections 337 and 346, Mumbai Municipal Corporation Act, 1888 - Under Regulation 6(5) Commissioner can allow any departure of substantial nature from the sanctioned plan - Section 337 does not restrict ambit and scope of Regulation 6(5) - Section 346 applies in case the development plan is disapproved at any point of time. (Para 78)
(h) Development Control Regulations for Greater Bombay, 1991 - 2(13), 2(42), 2(44) and 44(7) r/w Section 3, Maharashtra Fire Prevention & Life Safety Measures Act, 2006 - Refuge area - Determination done by CFO, the competent authority - View of the Fire Safety Officer has to prevail Revisited and confirmed by 3 successive Commissioners - 36 floors constructed accordingly - Petitioners awaking after completion of 36 floors - Objection repelled. (Para 81, 83, 84)
Facts of the case:
The matter relates to unauthorized constructions in Mumbai.
Finding of the Court:
SRUIL had deemed permission. Determination of refuge area as determined by CFO must prevail.
Result: Finding recorded by the High Court that no deeming permission accrued under Regulation 6(4) of Development Control Regulations, 1991 set aside.
Accrual of deemed permission, and determination of refuge area as per order dated 31.8.2016 passed by the Municipal Commissioner, do not require interference
Petitions filed by Janhit Manch – PIL [L] No.133/2015, T.C. No.271/2017 and T.C. No.6/2018 dismissed.
Legal Category Hierarchy
-
administrative law
-
urban planning and development
- building permissions
- floor space index
- fire safety
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urban planning and development
- statutory interpretation
- practice and procedure
Advocates appeared:
For the Parties :C.U. Singh, Ruby Singh Ahuja, Deepti Sarin, Lalit Kataria, Sanjeet Ranjan, M/S. Karanjawala & Co., Garima Prashad, Devashish Bharuka, Nishant Ramakantrao Katneshwarkar, A.N.S. Nadkarni, ASG R.P. Bhatt, Priti Purandare, S. Sukumaran, Anand Sukumaran, Bhupesh Kumar Pathak, Meera Mathur, M/S. Karanjawala & Co., Vikas Mehta, Bijoy Kumar Jain, Neeraj Kishan Kaul, Hansa Kaul, Anuradha Dutt, Fereshte D. Sethna, B. Vijayalakshmi Menon, Ekta Kapil, Anirudh Bakhru, N.Nihaal Rao, Kunal Dutt, Vishal Prasad, Advocates
For the Parties :C.U. Singh, Ruby Singh Ahuja, Deepti Sarin, Lalit Kataria, Sanjeet Ranjan, M/S. Karanjawala & Co., Garima Prashad, Devashish Bharuka, Nishant Ramakantrao Katneshwarkar, A.N.S. Nadkarni, ASG R.P. Bhatt, Priti Purandare, S. Sukumaran, Anand Sukumaran, Bhupesh Kumar Pathak, Meera Mathur, M/S. Karanjawala & Co., Vikas Mehta, Bijoy Kumar Jain, Neeraj Kishan Kaul, Hansa Kaul, Anuradha Dutt, Fereshte D. Sethna, B. Vijayalakshmi Menon, Ekta Kapil, Anirudh Bakhru, N.Nihaal Rao, Kunal Dutt, Vishal Prasad, Advocates
Table of Contents
2. Validity of deemed permission for parking lot — Lapsing of development permission under Section 48 MRTP Act — Legality of incentive FSI and refuge area computations. (Para 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 )
3. Executive circulars cannot override statutory regulations — Deemed permission under DCR 6(4) occurs if notice is served and no refusal is issued within fifteen days. (Para 40 , 41 , 44 , 52 , 53 , 56 , 57 , 66 , 67 , 70 , 74 , 75 , 83 , 84 )
4. Development permission under Section 48 MRTP Act does not lapse if construction up to plinth level is completed within the aggregate four-year period. (Para 40 , 41 )
5. High Court order set aside in part — Deemed permission for parking lot upheld — Refuge area order upheld — PILs dismissed — Corporation to decide on residential floors. (Para 89 , 90 )
6. Does development permission under Section 48 of the MRTP Act lapse after four years if construction up to the plinth level is completed?
No. If construction up to the plinth level, or upper level of basement or stilt, is completed within the one-year period or the extended period (up to four years total), it is not necessary for the applicant to make an application for fresh permission. (Para 40 , 41 )
7. When is permission for further construction deemed to have been granted under Regulation 6(4) of the DCR?
Deemed permission is granted if the owner, through a licensed professional, gives notice of completion up to plinth level and the Commissioner neither grants nor refuses permission within fifteen days, provided the work is carried out according to sanctioned plans. (Para 52 , 53 , 57 , 58 )
8. Can an executive circular restrict development rights granted under statutory Development Control Regulations?
No. Statutory regulations prevail over executive circulars or directives. Directions issued by the government or corporation in derogation of statutory provisions are impermissible and lack the force of law. (Para 74 , 75 )
9. Who is the competent authority to determine refuge area requirements for high-rise buildings, and can these be revisited based on possible misuse?
The Chief Fire Officer is the competent technical authority. Once permission is granted based on expert recommendations, it cannot be questioned or revoked based on mere apprehension of possible misuse. (Para 80 , 81 , 83 , 84 )
JUDGMENT :
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 2013 and First Appeal No.884/2015. Janhit Manch has also filed an appeal. It has 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 REGULATION s 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 multistoreyed 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 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 stopwork 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. Af
