Sudhir M. Khandwala Adult vs Municipal Corporation of Greater ) Mumbai, Mahapalika Marg, Mumbai ) (Summons to be served on the ) Municipal Commissioner

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(Bom) 1737

High Court of Judicature at Bombay
THE HONOURABLE CHIEF JUSTICE MR. SWATANTER KUMAR & THE HONOURABLE MR. JUSTICE S.C. DHARMADHIKARI
Sudhir M. Khandwala Adult & Others
Versus
The Municipal Corporation of Greater ) Mumbai, Mahapalika Marg, Mumbai ) (Summons to be served on the ) Municipal Commissioner & Others
Case No : WRIT PETITION NO. 1077 OF 2007 ALONG WITH WRIT PETITION NOS.3123 OF 2006, 1124 OF 2007, 1130 OF 2007, 1190 OF 2007, 1428 OF 2007, 1364 OF 2009, 1572 OF 2009, WRIT PETITION (LODGING) NOS.1280 OF 2007, 1467 OF 2007, PUBLIC INTEREST LITIGATION NO.100 OF 2008, AND WRIT PETITION NO. 1379 OF 2008 (A.S.)
Decided on : 16-12-2009

Advocates appeared:
For the Appearing Parties:V.A. Thorat, Senior Advocate, a/w P.J. Thorat, K.K. Singhvi, Senior Advocate, a/w Mrs. V.S. Gharapure for the Mumbai Municipal Corporation, R5 & 6, J.G. Reddy i/b Utangale & Co. for Respondent No.4. N.H. Seervai, Senior Advocate, a/w R.N. Narula and Anuj Narula i/b M/s. J.Naruyla & Associate, R7, F.E. D’itre, Senior Advocate, a/w. Ms. Rajani Iyer, Senior Advocate, and Birendra Saraf i/b Y.N. Adhia, Ms.Geeta Shastri, Assistant Government Pleader, Sanjay Jain i/b Nityoah Sunil, S.U. Kamdar a/w Mr. N.M. Shah for the Petitioner, Shekhar Ingavale, Assistant Government Pleader, for the State. K.K. Singhvi, Senior Advocate, a/w Mrs.V.S. Gharapure for the Mumbai Municipal Corporation, Advocates.

Headnote:(A) Maharashtra Regional and Town Planning Act, 1966-Sections 45 and 53-Grant/refusal of permission-Order must state the grounds which motivated the authority to pass such order-In case of demolition of any building notice must be serve on owner of the building-This is mandatory retirement of the law-In spite of notice issued to owner the person having intention to carry out any development on the land, can apply for retention-Till the disposal of such application notice will have no effect on retention of works or buildings or continuance of its use. (Para 97)
       (B) Development Control Regulations for Greater Mumbai, 1991-Regulation 64-Power conferred upon Commission by virtue of Regulation 64 is discretionary-Such discretionary power can be exercised by the Commissioner only in such cases where clear case of hardship is made out. (Para 120)
       (C) Development Control Regulations for Greater Mumbai, 1991-Regulation 64(b)-Maharashtra Regional and town Planning Act, 1966-Sections 52 and 53-Infrastructure and basis amenities are provided considering existing population and growth at a projected rate over a passage of time-Municipal and Town Planning authorities cannot adopt an attitude by which they further interest and cause of developers and wrong-doers at cost of township as a whole-Right of individual has to be balanced with requirements of society, (Para 123)

Judgment :

1. Rule in all the Writ Petitions. Rule made returnable forthwith. By consent of parties,

petitions are heard finally.

2. These Writ Petitions and Public Interest Litigations were heard together. Although, some of the points in them are common, it would be necessary to refer to the facts in each of these Writ Petitions. However, majority of them involve the common issue, namely, unauthorized works, irregularities and illegalities in construction of buildings and the power of the Planning and Municipal authorities to regularize such acts of Builders and Developers.

I) WRIT PETITION NO. 1077 OF 2007

3. In this Writ Petition, the Petitioner Sudhir Khandwala has approached this Court on the basis that he is residing presently in South Bombay but he is a purchaser of Flat Nos.1004A and 1004B, 10th Floor, Gaurav Gagan Building constructed in Kandivali (West), Mumbai 400067.

4. It is his case that the Respondent No.1 is the Mumbai Municipal Corporation which is a body corporate incorporated under the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to for short as “MMC Act, 1888”). Respondent Nos.2 and 3 are its Officers. Respondent No.4 is the Slum Rehabilitation authority constituted under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (hereinafter referred to for short as “the Slum Act”). It is common ground that Respondent Nos. 1 to 3 are also the authorities under the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to for short as “MRTP Act”).

5. Respondent No.5 is a Private Limited Company carrying on business as builder and developer. Respondent No.6 is the Director of this Company.

6. In this Writ Petition, an order was made after hearing both sides that Respondent No.7 be impleaded as party Respondent. It is a proprietary concern of one Arun Damji Gada. Since it was stated that Respondent No.7 is also responsible for construction of the building in question that the impleadment was ordered by us.

7. The Petitioner states that he is aggrieved by an order dated 14th May 2007 passed by the Municipal Commissioner (Respondent No.2) directing the builder and developer to demolish all floors above the 7th floor of Gaurav Gagan building. The Petitioner states that he and the other flat purchasers in this building are aggrieved by the order of the Municipal Commissioner.

8. It is the case of the Petitioner that he purchased two flats from Respondent No.6 under two registered Agreements for Sale dated 4th March 2002. He has paid the major/substantial portion of the consideration by obtaining loans from Standard Chartered Bank and by mortgaging these flats. It is the case of the Petitioner that the Respondent No.5 made an application for development permission through Respondent No.6. The permission for development was granted by Respondent Nos.1 to 3. The plans were initially sanctioned for a building consisting of stilt plus seven upper floors on 11th January 1992. The Commencement Certificate was granted on 15th September 1992. It is stated that at the time of inspection of Respondent No.3, it was noticed that the building was constructed upto 24th floors and therefore a stop work notice under Section 354 of the MMC Act, 1888 was issued on 2nd December 1992. Similarly, action under Section 53(1) of the MRTP Act was also initiated on 24th October 2002. In response to these notices, Respondent No.5 through an Architect applied for regularization of the work as in his opinion the work was capable of being regularized.

9. It is the case of the Petitioner that in the meanwhile, two Public Interest Litigations were filed in this Court and one of them was PIL No. 379 of 2003. That was filed by one Rajendra Thakkar. There was another PIL being Writ Petition No. 2822 of 2007 that was filed by Bhrastachar Nirmulan Sanghatana. Both PILs were disposed of by a common judgment and order of this Court dated 5th May 2004. The Division Bench issued certain directions

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