JUDGMENT :

V. Gopala Gowda, J.

Leave granted.

2. My sister Justice Gyan Sudha Misra has delivered the Judgment today in this matter by dismissing the Special Leave Petition holding that it has become infructuous. I am in respectful disagreement with the view expressed by Her Ladyship in this matter. As I received draft judgment in the evening of 24th April, 2014, I could not deliver judgment. I am of the view that the leave has to be granted and civil appeal has to be allowed. In the proceedings, it is stated that reasons would follow, that is why I am releasing this reasoned judgment.

Pursuant to the order of the High Court of Judicature at Bombay dated 13.05.2013 passed in Public Interest Litigation Petition No. 43 of 2012 filed by the appellants, 13 issues of violations and breach of Development Control Regulations for Greater Mumbai, 1991 (for short "the DCR") and the Maharashtra Regional and Town Planning Act, 1966 (for short "the MRTP Act") were raised.

3. Out of the 13 issues raised in the said writ petition, which were in two parts, six issues (in Part-A) were remanded to the Municipal Commissioner for reconsideration and re-examination and (Part-B) Eight issues were finally decided by the High Court in the aforesaid writ petition (one issue being remanded in part). Pursuant to the said order of MCGM, six issues were decided vide order dated 12.09.2013.

4. Being aggrieved by the order dated 12.09.2013 respondent No. 5 challenged the correctness of the same by filing W.P. No. 2223 of 2013 before the High Court of Judicature at Bombay.

For the sake of ready reference, the issues pending for adjudication before High Court and this Court is highlighted in the following table:-

1. PUBLIC PARKING LOT (PPL) AND STOP WORK NOTICES; PENDING (From plinth to 15th floors) PENDING (From 5th to 15th Floor)

2. CONSTRUCTION OF FLOORS 43rd TO 56th OF THE RESIDENTIAL BUILDING PENDING --

3. REFUGE AREA/FIRE ESCAPE PASSAGES TO BE COMPUTED - PENDING

4. SET-BACK AREA - PENDING

5. HEIGHT OF HABITABLE FLOORS PENDING -

6. PASSAGES AT MANOR LEVEL, PASSAGES IN FRONT OF THE FLATS, SWIMMING POOLS - PENDING

7. SERVICE FLOORS PENDING -

8. AMENITY FLOOR PENDING -

9. FSI OF DUPLEX FLOORS - PENDING

10. SERVANT TOILETS PENDING -

11. STRUCTURAL COLUMN - PENDING

12. TOILETS AT DUPLEX LEVEL PENDING -

13. FLOWER BEDS AREA PENDING -

TOTAL ISSUES PENDING IN HIGH COURT AND IN SUPREME COURT 8 IN SUPREME COURT 6 IN HIGH COURT

Therefore, the learned sister Her Ladyship held that the challenge made in relation to the other issues in this appeal has become infructuous and has been dismissed by Her Ladyship in the Special Leave Petition by recording Her reasons to which I am in respectful disagreement and of the view that certain factual and legal contentions rise before the High Court in Part-A, and 7 issues were not decided. The correctness of the same are challenged in this appeal raising certain questions of law and grounds in support of the same.

5. After hearing the legal contentions advanced by both the parties, Mr. Shekhar Naphde the learned senior counsel who appeared on behalf of the appellants and Mr. Goolam E. Vahanvati, Attorney General along with Mr. R.P. Bhatt, learned senior counsel who appeared on behalf of respondent Nos. 2 to 4, Dr. A.M. Singhvi and Mr. Paramjit Singh Patwalia, learned senior counsel on behalf of respondent No. 5, I am of the view that this Special Leave Petition has not become infructuous. I intend to consider the legal questions raised and answer the same by adverting to certain necessary relevant facts.

Brief facts are stated hereunder for examining the factual and rival legal contentions urged on behalf of the parties and I answer the same by recording reasons in this judgment :-

6. The appellant no. 1 herein, a non-Governmental organization, filed Public Interest Litigation No. 43 of 2012 before the High Court of Judicature at Bombay questioning the legality of the permission granted in favour of respondent No. 5 regarding construction of 56 storied