1. Appeal seeking deemed development permission and additional FSI for luxury hotel on land in CRZ II after reservation lapsed under MRTP Act. (Para 2 , 3 , 4 , 5 , 6 , 7 , 8 )
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SUPREME COURT OF INDIA
K.G. Balakrishnan, CJI., Lokeshwar Singh Panta & J.M. Panchal, JJ.
Suresh Estates Pvt. Ltd. & Ors. - Petitioner
Versus
Municipal Corp. of Greater Mumbai & Ors. - Respondents
Appeal (civil) No. 5948 of 2007
Decided On : 14-02-2007
1. Appeal seeking deemed development permission and additional FSI for luxury hotel on land in CRZ II after reservation lapsed under MRTP Act. (Para 2 , 3 , 4 , 5 , 6 , 7 , 8 )
2. Whether DC Rules 1967 or 1991 apply — entitlement to additional FSI under Rule 10(2) — whether deemed permission arises under Section 45(5). (Para 13 , 14 , 15 , 16 , 18 , 19 )
3. CRZ notification freezes building regulations as on Feb 19, 1991 – DC Rules 1967 apply – no deemed permission – discretion under Rule 10(2) must be judiciously exercised. (Para 21 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 )
4. In CRZ areas, existing local regulations as on notification date apply; EP Act overrides MRTP; discretion for additional FSI must be guided by past practice and Article 14. (Para 27 , 25 , 28 , 33 , 38 )
5. Appeal partly allowed – High Court order modified – State directed to decide application within six weeks applying DC Rules 1967 and considering past grants. (Para 42 , 43 , 44 , 45 )
The existing local town planning regulations as on February 19, 1991, which are the DC Rules 1967, apply, not the later DC Regulations 1991. (Para 21 , 23 , 24 , 25 , 29 )
No, because the proviso requires the application to be strictly in conformity with relevant regulations, and the authority had no occasion to consider compliance. (Para 39 , 40 )
No, it is a discretionary power, but the discretion must be exercised judiciously, considering past grants and in compliance with Article 14 of the Constitution. (Para 33 , 34 , 38 )
Yes, once reservation lapses because the authority fails to acquire, the owner may use the land for purposes permissible under the town planning scheme. (Para 35 , 36 , 37 )
No, because the CRZ notification under the Environment Protection Act overrides the MRTP Act, and the draft regulations were not in force on the critical date. (Para 26 , 27 , 28 , 29 , 30 , 31 )
JUDGMENT :
J.M. Panchal, J. - Leave granted.
2. The instant appeal is directed against judgment dated August 13, 2007 rendered by the Division Bench of High Court of Judicature at Bombay in Writ Petition No. 1627/2007 by which the prayers made by the appellants.
(1) to declare that application submitted by them on December 26, 2005 to the Municipal Corporation of Greater Mumbai to give permission to develop land bearing CTS No. 2193 (P) of Bhuleshwar Division at Dr. Babasaheb Jaykar Marg stands granted in view of Section 45(5) of the Maharashtra Regional and Town Planning Act, 1966,
(2) in the alternative to direct the respondents to grant forthwith their application for permission to develop land referred to above with additional FSI of 3.73 times the FSI permissible under Rule 10(2) of DC RULES , 1967, and,
(3) to direct the respondents to allow them to proceed with the development of their plot mentioned above for construction of luxury hotel by utilisation of additional FSI of 3.73 times the FSI permissible on the said plot as per DC RULES , 1967, are refused.
3. The appellants No.1 and 2 are the Companies incorporated under the provisions of the Companies Act, 1956. The petitioner No. 2 holds/owns a plot of land bearing CTS No. 2193 (P) of Bhuleshwar Division at Dr. Babasaheb Jaykar Marg, Thakurdwar. The plot admeasures approximately 8983 square meters. The respondent No. 1 is the Municipal Corporation for Greater Mumbai, and the Planning Authority under the provisions of Mumbai Municipal Corporation Act, 1888 as well as Maharashtra Regional and Town Planning Act, 1966 (The M.R.T.P. Act, for short).
4. The appellant No. 1, obtained requisite rights in respect of plot referred to above. The plot was reserved for play ground of Municipal Primary School and Secondary School as well as for D.P. Road. The appellant No. 1 caused a purchase notice to be served to the Municipal Authorities on June 16, 2005.
5. The Municipal Corporation found that the land was encumbered with residential as well as commercial structures and the cost of purchase would be roughly about Rs. 13.6 crores which was very high. The Municipal Corporation, therefore, decided not to purchase the said plot of land, as a result of which the reservations on the plot lapsed on December 16, 2005 under the relevant provisions of the M.R.T.P. Act.
6. The appellants thereupon desired to develop the plot for construction of a luxury hotel. It may be mentioned that in exercise of rule- making power conferred by the M.R.T.P. Act, the State Government had earlier framed Development Control Rules, 1967. According to the appellants, the Ministry of Environment and Forests issued Notification I on February 19, 1991 under Section 3(1) and 3(2)(v) of the Environment (Protection) Act, 1986 and Rule 5(3)(d) of the Environment (Protection) Rules, 1986 declaring coastal stretches as Coastal Regulation Zone (CRZ) and regulating activities in the CRZ, as result of which the plot belonging to them falls within CRZ II.
7. What is claimed by the appellants is that the buildings permitted in CRZ II on the landward side of the existing and proposed road would be subject to the existing local Town Planning Regulations and therefore, the luxury hotel will have to be constructed as per D.C. Rules of 1967 which were existing local Town Planning Regulations. The appellant, therefore, submitted the plans to develop the land in question by constructing a luxury hotel in terms of Rules of 1967 on December 26, 2005.
8. The case of the appellants is that they are entitled to additional FSI of 3.73 times the FSI in addition to 1.33 FSI allowable on the said plot as per the provisions of Rule 10(2) of DC RULES , 1967. The appellants did not receive any communication from the Municipal Authorities about their application by which permission to develop the plot was sought. On December 31, 2005 the Municipal Corporation submitted a proposal to the Principal Secretary, Urban Development Department, Governm
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