Sadanand Varde vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(Bom) 1889

2007(2) ALL MR 101
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
F.I. REBELLO & Smt. V.K. TAHILRAMANI, JJ.
Sadanand Varde & Ors.- Petitioners
Versus
State of Maharashtra & Ors.- Respondent
Writ Petition No.283 of 2005
Decided on 21st November, 2006.
Advocates appeared
Mr. G. G. KALESKAR, Sr. Counsel with Mr. A. C. MAHIMKAR, Advocate for the Petitioners.
Mr. RA VI KADAM, Advocate General with Mr. NIRANJANPANDIT, AGP for Respondent No. 1.
Mr. K. K. SINGHVI, Sr. Counsel with Mr. A. KAMA T and Mrs. P. A. PURANDARE, Advocate for Respondent Nos.2 to 4.
Mr. R. M. SAWANT, Govt. Pleader for Respondent No.5.
Mr. J. REIS, Sr. Counsel with Mr. Y.M. CHOUDHARI, Advocate for Respondent No.6.

Headnote:Constitution of India - Article 226 - Development Control Regulations for Greater Bombay, 1991 - Writ petition - Challenging Development Plan - Delay and laches in challenge - Relevant - However petition treated as PIL - Heard on merits - Cannot be dismissed on ground of delay and laches - Directions issued. - It may be mentioned that delay and laches in a challenge to a Development Plan and D.C. Regulations, are relevant considering that it is of a limited period and as in the mean time various third party rights are created. In the circumstances, really find it difficult to entertain a petition after a lapse of nearly five years have however considered the fact that petition was treated as PIL and has been heard on merits therefore do not propose to dismiss the same on the ground of delay and laches.
       Constitution of India - Article 226 - Development Control Regulations for Greater Bombay, 1991 - Writ petition - Challenging validity of Regulations - Power of High Court - A mandamus cannot be issued by High Court under Article 226 - High Court cannot direct Legislature or its delegate to make any law. - Court exercising its extra jurisdiction under Article 226 of the Constitution of India or for that matter a Civil Court exercising powers of judicial review cannot issue a mandamus or direction to the Legislature or its delegate to make any law. That relief therefore, cannot be considered by the Court.
       Development Control Regulation for Greater Bombay, 1991 - Constitution of India, Article 226 - Development plan - Amendment in - Exercise of powers - Fraud on statute alleged - Reconstruction of old and cessed buildings in same area permitted by way of amendment granting additional F.S.I. for - Recommendation of a Study Group made basis of amendment to meet objective of Development Regulations - Powers exercised not amounts to fraud on statute or Constitution. - It also cannot be said that exercise of powers amounts fraud on the statute and or on the Constitution. The MRTP Acts permits modification of Fund Development Plan by the procedure laid down. The procedure includes inviting objections and hearing the objections. In other words, a consultative process. The amendment themselves were based on recommendations of a Study Group under the Chairmanship of Mr. D.M. Sukhtankar. The amendments were made to carry out and give effect to the recommendations of the Study Group in order to repair/reconstruct old and dilapidated buildings. In Court’s opinion, it cannot be said that this amounts to a fraud on the statute or Constitution.
       Maharashtra Regional and Town Planning Act, 1996 - Section 37 - Town plantings - Modifications therein - Changes character of Development Plan - Cessed buildings - Notification issued for repairs and reconstruction of - Amendment providing grant of additional FSI for reconstruction of buildings in same area - Not changing character of Development Plan. - Additional FSI was for the purpose of construction of houses to dishoused, who are displaced by the project undertaken by the Corporation and also for repairs or reconstruction of cessed buildings and urban renewal scheme. It would be clear therefore that in the Planning area itself, there were structures. The Amendment of Development Control Regulation provides for demolition or reconstruction of the ceased buildings in the same area by granting additional FSI house those who were staying in the old building Court’s opinion, this cannot be said to change the character of the plan.

JUDGMENT:- The Petitioners are tax payers of the State of Maharashtra and ratepayers of Respondent No.2. All of them are nationals and citizens of India, and have been active in agitating various social issues. By the present petition, they have sought quashing of notification dated 25th January, 1999, whereby modifications have been made to the Development Control Regulations for Greater Bombay, 1991. Regulation 31 was modified by adding a proviso making non applicable height restrictions for reconstruction and redevelopment of old buildings undertaken under Regulations 33(7), 33(8) and 33(9) and which are not affected by the Costal Regulation Zone Notification dated 19th February 1991, issued by the Ministry of Environment and Forest, Government of India, and orders issued from time to time. Similarly, Regulation 59 was modified, pursuant to which restrictions on height were not to be made applicable for reconstruction and redevelopment of old buildings undertaken under Regulations 33(7), 33(8) and 33(9) of the Regulations, which are not affected by the Costal Regulation Zone, dated 19th February, 1991. Similarly, modification was made to Regulation 67, making applicable the provisions of the Regulation only to Grade-I and Grade-II category of Heritage Buildings for reconstruction and redevelopment of old buildings undertaken under Regulations 33(7), 33(8) and 33(9). There is a provision also made for redevelopment of cessed buildings from Grade III and precincts. Regulation 33(7) was replaced by new regulation for reconstruction and redevelopment of cessed buildings. Similarly, Regulations 33(8) and 33(9) were replaced increasing the FSI for reconstruction of buildings for Housing the Dishoused in the island city with additional FSI, which is not available, when owner undertakes development. So also additional FSI was provided for repairs and, reconstruction of cessed buildings under Urban Renewal Scheme. It is not necessary to refer to Appendix thereof. The Regulations have been made in exercise of the powers conferred on the State of Maharashtra by Sub-section (2) of Section 37 of the Maharashtra Regional Town Planning Development Act, which hereinafter shall be referred to as the MRTP Act.

2. The validity of these Regulations have been challenged, contending that these are not minor modifications. The Petitioners have also sought to challenge the practice of indiscriminate user of TDR on residential plots, which are not eligible as also the Circular under the Caption "Fees for Revalidation of Building Proposals", which is based on the Corporation Resolution No.563, dated 14-9-1995. Prayer Clause (i) seeks quashing the notification of 25th January, 1999 and also the 1994 amendment of the definition of FSI, by insertion of Section 2(13-A) by Maharashtra Act No.39 of 1994. We may also note at this stage itself that an amendment has also been made to the marginal notes under Section 37 and for the words "minor modification", the word modification has been substituted" Prayer Clause (ii) seeks to quash Regulation 34, which enables incentive FSI obtained by way of TDR from the Island City to be used in the Suburbs on plots, which do not have marginal side spaces in proportion to the height and length of the building, as required as per original Regulation 29 of D.C.Regulations, 91. Prayer Clause (iii) is for quashing the building permission, which is consequential, if prayer Clause (ii) is allowed.

Prayer Clause (iv) is to quash Regulation 34 and to direct Respondent Nos.1, 2 and 3 to amend the same as per the norms internationally accepted, particularly from the US from where this concept is borrowed. We are afraid a Court exercising its extra jurisdiction under Article 226 of the Constitution of India or for that matter a civil court exercising powers of judicial review cannot issue a Mandamus or direction to the legislature or its delegate to make any law. That relief therefore, cannot be considered by this Court. Prayer Clau

Click Here to Read the rest of this document

Judicial Analysis

SupremeToday

2006 Supreme(Bom) 1889

Cases Referred (4)

Judicial Analysis