2003 Supreme(Bom) 190

IN THE HIGH COURT OF BOMBAY
Thakker C.K., C.J. Dr. Chandrachud D.Y., J.
Nariman Point Association another .... Petitioners.
Versus
State of Maharashtra others.... Respondents.
Writ Petition (PIL) No. 3048 of 2001, decided on 29-1/14-2-2003.
Advocates appeared :
Dr. Virendra Tulzapurkar, Sr.A. with R.G. Govilkar, for petitioners.
Niranjan Pandit, A.G.P., for respondent Nos. 1, 4 5.
R.M. Sawant, for respondent No. 2.
P.A. Sawant with N. Engineer i/b. Desai Diwanji, for respondent No. 6.
R.A. Dada, Sr.A., F. Divetri with Shyam Mehta, i/b. Federal and Rashmikant, for respondent No. 7.
Ms. P.A. Purandare i/b., S.J. Billimoria, for BMC.

Headnote:Maharashtra Regional and Town Planning Act, 1966Sections 31 and 40 - Sanction for development of plots - P.I.L. against - Delay/Laches - Effect - Plots entrusted to private parties for development on condition - Full use of F.S.I. permitted to them with incentive - Stipulated number of places free of cost to MMRDA to be handed over - Project sanctioned in 1998 - Respondent 6 already carried out work upto 9th floor - Held - Project get delayed and cost over run - P.I.L. failed after a delay not maintainable on ground of delay/laches. - The petitioners admit that in June, 1998, information was gathered that the seventh respondent was to put up a multi-storeyed car parking facility on the plots of land in question. The attention of the Court has also been drawn on behalf of the sixth and seventh respondents to the fact that on 23rd and 25th May, 2001 inspection of the relevant documents was furnished to the petitioners by MMRDA. This has also been stated in the affidavit filed by MMRDA before the Court. The writ petition was filed before the Court only in December, 2001. By the present time, a substantial part of the construction work has been carried out. Counsel for the sixth and seventh respondents has stated before the Court that an amount of Rs. 23 crores has been paid over to MMRDA. Rs. 1 crore as EMD on 1st July, 1997, Rs. 10.5 crores on 15th June, 1998 and Rs. 11.5 crores on 25th February, 1999. The construction commenced in October, 2001. On behalf of the petitioners it was urged that initially the commencement certificate was granted only for the work upto the plinth level and that the certificate for work above the plinth level was granted only on 10th July, 2002. The seventh respondent was served and was joined as a party on 14th February, 2002. Be that as it may, in the present case, the petitioners were clearly aware as far back as in June, 1998 of the award of contract and, on 23rd May, 2001 they took inspection of the relevant documents. In a matter such as the present, the Court would be slow to interfere with the construction and with the implementation of the project when there has been a significant delay on the part of the petitioners in moving the Court. The question of latches is one to be addressed in the facts of each case, where the issue arises. In the present case, there has been a significant delay on the part of the petitioners even after they obtained knowledge of the project and thereafter, since the date on which inspection of documents was taken. Moreover, as already noted earlier, the petitioners had themselves submitted a proposal in 1989 for the construction of a multi-storeyed car parking facility and that proposal also envisaged utilisation of commercial space as a part of the overall development of the plots of land in question for multi-storeyed car parking.

       Maharashtra Regional and Town Planning Act, 1966Sections 31 and 40(1)(c) - Development Control Regulations Table, IV, Regulation 9 - Sanction for developments of plots - P.I.L. against - Plots to be developed for multiplex car park - Part of it allowed to be developed as commercial multiplex - Work to be carried out by public authority under Regulation 9 of Table IV - Not possible for various reasons - Private party needed to be involved on condition - Full use of F.S.I. permitted to them - Fulfilling dominant purpose of reservation a parking lot free of cost entity undertaking development - Entitled to full use of F.S.I. of plots as permissible under DCR s - As a recompense for development of parking lot - Land can be used for multiplex or commercial purposes. - The sanctioned development plan of which the Development Control Regulations are a part expressly contemplates that once the full permissible FSI of the plot is utilised for effectuating the reservation of a parking lot, the full permissible FSI of the plot can be utilised for other permissible users of the plot. The manner of development that has been carried out is consistent with Development Control Regulation 9 IV(i). MMRDA had invited tenders for effectuating the reservation of a multi-storeyed parking lot on Plot Nos. 240 and 240-A. The terms and conditions on which development was to take place were clearly spelt out in the Tender Notice. The tender conditions provided the extent of the area that would be (i) utilised for the purpose of the parking, (ii) handed over for parking spaces to MMRDA free of cost, (iii) developed for commercial use and the part thereof that would be handed over to MMRDA free of cost. Commercial utilisation was expressly contemplated by the terms of the tender notice which received wide publicity. Development Control Regulation 9, read with Entry IV (i) of Table-4, as noted earlier permits this, once the entire FSI of the plot is utilised for a multi-storeyed parking lot. The utilisation of the entire permissible FSI of the plots for the multi-storeyed car parking facility subserves the dominant purpose of the reservation.