1994 Supreme(Bom) 592

IN THE HIGH COURT OF BOMBAY
M.L. Pendse S.M. Jhunjhunuwala, JJ.
Bombay Environmental Action Group.... Petitioners.
Versus
The Bombay Municipal Corporation and others.... Respondents.
Writ Petition No. 1473 of 1984, decided on 19-10-1994.
Advocates appeared :
Atul Setalved with N.H. Seervai, S.A. Diwan, Gautam Patel and Gaurav Joshi i/b H.V. Jayekar Co.,, for the petitioners.
E.P. Bharucha with M.B. Rao, for respondent No. 1.
Janak Dwarkadas with B.S. Mehta, for respondent No.2.
Virendra Tulzapurkar with Milind Sathe i/b Kanga Co., for respondent No. 3.
Vibhav Krishna i/b Law Charter, for respondent No. 4.
S.B. Shenoy i/b Savla Co., for respondents 5 9.
N.G. Thakkar i/b Little Co., for applicants in Chamber Summons No. 110 of 1994.

Headnote:Section 299 (1)-Development Control Rules for Greater Bombay, 1967, R. 10 (2)-Extra floor space-Grant of whether legal.

       Held-The perusal of the computation, the contents of which are not disputed by the Builders and the Corporation, clearly establishes that the Reference was sought by Gamadias In respect of acquisition of set back area of 791.15 sq. yards which was acquired in the year 1962. The reference was not in respect of compensation for acquisition of land In the year 1958. The computation also establishes that in the year 1969 consent terms were filed before the Court of small causes between Gamadias and the Corporation and compensation at the rate of Rs. 400/- pro sq. foot was paid. It is difficult to imagine how the Executive Engineer Building Proposals while preparing not in the year 1979 i. e. 10 years after the filing of the consent terms in the Court of Small Causes can pretend that it is not clear whether the reference was finally decided or otherwise. The perusal of the note also establishes that that Executive Engineer was deliberately misleading the Commissioner by suggesting that the dispute in the reference was in respect of the set back area acquired in the year 1958. That was obviously a false statement.

       The Executive Engineer at the foot of the note recommended that in accordance with Clause 5 of the Circular it is for the Municipal Commissioner to decide on merit whether the additional F. S. I. should be granted in view of the pendency of dispute in the Court. The Municipal Commissioner on July 21, 1979 made endorsement that though the fun payment has been made the same is disputed and hence the Corporation may give benefit of additional F. S. I. It is obvious that the Municipal Commissioner made the endorsement by relying upon false note prepared by the Executive Engineer Building Proposals. The respondents 2 and 3 obviously though their architect made a false representation to the Municipal Corporation and Executive Engineer either blindly accepted the same or knowingly prepared the note to assist the Builders. Held, that the Builders had secured permission for construction of Arihant Apartments by false representation that the built-un area available in the Plot No. 4/155 after construction of Tirupati Apartments is 2431.45 sq. yards. The false representation was made and the Corporation illegally accepted the claim that additional F. S. I. can be granted in respect of the set back area acquired in the year 1958 as Builders has repaid the compensation amount paid to Gamadis with interest.

       Section 354-Development Control Rules for Greater Bombay, 1967, Rule 10 (2)-Illegal construction-Whether can be regularised on payment of penalty?

       Held-In the City of Bombay builders by joining hands with the officers of the Corporation openly flout every conceivable rule, including Development Control Rules: The builders are under the impression that once the shell of the building is illegally constructed then the Court can be persuaded to take a sympathetic view and permit the construction even though in total breach of every legal provision. The Development Control Rules were enacted by the State Government as it was realised that unregulated construction is put up by the builders at every nock and corner of the city leading to serious problems and causing serious hardship in providing civil amenities to the citizens.

       It is not a secret that the land available in the island city of Bombay is very limited and the prices are shooting up to an unimaginable level. Taking advantage of the situation the Builders lobby is exploiting the need of the people by setting up illegal constructions and it is unfortunate that in indulging in these illegal activities assistance is secured from some of the officers of the Corporation. It is only because of the continuous efforts of the groups like the petitioners that illegurities are brought to the attention of the Court. Once it is found that the grant of sanction to the construction of the building Arihant was in total breach of law, then we would be failing in our duty if the Builders are permitted to regularise the illegalities by offering to make payment. Time has come when everyone should realise that rule of law is not a purchasable commodity and illegalities will not be tolerated merely because some one is willing to offer payment in lieu of violating the law.

       DEVELOPMENT CONTROL RULES FOR GREATER BOMBAY, 1967 Rule 10 (2).

       See Bombay Municipal Corporation Act, 1888-Section 299 (1).

       Rule 10 (2)

       See Bombay Municipal Corporation Act, 1888-Section 354-AA.