2010 Supreme(Bom) 754

2010(4) ALL MR 596
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
FERDINO I. REBELLO & A. A. SAYED, JJ.
Amit Maru & Anr.
Vs.
State of Maharashtra & Anr.
Public Interest Litigation No.94 of 2008 WITH Writ Petition No.2443 of 2008 10th June, 2010.

Headnote:Maharashtra Regional and Town Planning Act, 1966 - Sections 22-A(f) and 37 - Development Control Regulation for Greater Bombay, 1991, Regulation 32 - State Government Notification dated 11.7.2008 and 3.10.2008 - Increasing F.S.I. from 1 to 1.33 - Challenged - Contention, such increase amounts to change in character of development plan - Held - Considering expression "change character of plan", as additional F.S.I. 1 in form of TDR available before modification, to be used on plot - It cannot be said that same amounts to change of character of plan. - Attention is invited to Section 22-A(f) wherein it is set out that alterations in the Floor Space Index beyond ten per cent of the Floor Space Index prescribed in the Development Control Regulations prepared and published under Section 26 or published with modifications under Sections 29 or 31, as the case may be. It is sought to be pointed out that the effect of granting additional O. 33 FSI will result in increase of 33% and this would directly amount to substantial change and consequently change the character of the plan. From the affidavits filed by the Planning Authority and the State Government it is clear that in the suburbs and extended sub-surbs apart from FSI of 1.00 which is available on the plot, the said plot can be burdened/loaded with additional FSI of 1.00 in the form of TDR, certificates are issued under various provisions of DC Regulations like Slum TDR, Road TDR, Reservation TDR, Heritage TDR and the like. However out of the additional FSI of 1.00 it is mandatory to use 0.2 from Slum TDR. It is open to the developer/builder also to use the entitled TDR from slum rehabilitation. In other words though considering Section 22-A(f) technically though the amendment which provides for increase of 0.33% FSI may amount to amendment of substantial nature however considering the expression "change the character of the plan" as additional FSI of 1 in form of TDR was available before the modification to be used on the plot, in Court’s opinion it can not be said that the same amounts to change of character of the plan. The Supreme Court while interpreting words "chance in character of the plan" in Bombay Dyeing observed that the question would be as to whether the change in character is referable to alteration of the entire plan. Change in character would necessarily mean that change in the basic feature thereof the entire plan and the same has to be read in totality. The question is whether a radical transformation has taken place to its basic features resulting in the plant losing its original identity. Reference was also made to the judgment in Sadanand Varde and others v. State of Maharashtra, 2007 (1) Bom CR 810 (O.S.) to contend that in that case validity was upheld as the Court arrived at the finding that granting additional FSI to specific building plots cannot be said to change character of the plan. The plan before the present modification had already been modified permitting use of additional FSI of by way of TDR. Those modifications to the plans were not challenged or if challenged, the challenge was rejected. The only change by the present modification is that the FSI is generated on the same plot instead of the plot being loaded with FSI generated an another plot. There is therefore no wholesale replacement in the character of the plan. In Court’s opinion therefore this argument will have to be rejected.

       Maharashtra Regional and Town Planning Act, 1966 - Sections 22(m), 37(1) and 124-A - Development Control Regulation for Greater Bombay, 1991, Regulation 32 - Notification of State Government - Sanctioning modification of Regulation 32 of D.C.R. - Increase in Floor Space Index (F.S.I.) from 1 to 1.33 - Contention, such increase purports to charge premium ranging from Rs. 7000/- to Rs. 23,000/- per sq. mtr. is illegal and ultra vires provisions of MRTP Act - Held - Modification under Section 37 of Act is modification of plan, providing for imposition of premium is fee to be held ultra vires Act - Notification ultra vires MRTP Act - Struck down. - In opinion of Court therefore Section 22 which falls under Chapter III and which requires what must be the contents of the development plan does not expressly confer any power on the State Government or the planning Authority to make a provision for imposing a fee whether regulatory or compensatory. Modification of the plan. Providing for imposition of a premium which is nothing but a fee will have to be held to be ultra vires the provisions of the MRTP Act. Once the Legislature has provided for development charge under Section 124-A which charge has to be kept in a separate fund to be used for providing amenities it is not open for the State or the Planning Authority to contend that under the guise of giving grant of additional FSI of 0.33 they are entitled to a charge or a fee for the purpose of providing amenities.

       The question is, whether it is possible to severe the notification from grant of additional FSI and charge of premium. In Court’s opinion it is not possible to do so. The exercise of grant of additional FSI is only on payment of premium. The object behind amending the DC Regulations and for granting addition FSI is reflected in the budget speech. Even otherwise the regulation is for raising of revenue. In the light of that Court has to hold that the entire notification dated 3rd October 2008 is ultra vires the MRTP Act and consequently the notification on that point has to be struck down.

       Maharashtra Regional and Town Planning Act, 1966 - Sections 37(1) and 154 - Development Control Regulation for Greater Bombay, 1991 - Regulation 32 - Government Notification dated 11.7.2008 and 3.10.2008 - Sanctioning notification to Regulation 32 of D.C.R. - Increasing Floor Space Index (F.S.I.) - Challenged - Contention, petition lacks bona fide - It is to extent of espousing cause of holders of slum T.D.R. - Held - Petitioner aggrieved since they invested monies in SRA Scheme - Entitled to contend that action of Government to change F.S.I. ultra vires Act - Petitioner has locus standi - Public Interest Litigation (P.I.L.) must prevail. - In Court’s opinion, in order to entertain a petition, the answer is not whether the petition ultimately succeeds.

       The question that the Court is called upon the answer is whether the issues raised by the petitioners have prima facie to be considered. Once Court holds that there was issues which have to be answered, and petitioners in both the petitions have raised issues involving both Articles 14, 21 and also the power of the State Government and or the Planning Authority to charge a premium for sanctioning 0.33 additional FSI in the suburbs and extended suburbs. Merely because the petitioners in the PIL Petition may be to an extend espousing the cause of the holders of slum TDR that by itself can be no ground to hold that the petitioners in PIL petition lack bona fides. The petitioners in the other petition are aggrieved since they have invested moneys in a S.R.A. Scheme and legitimately expected to make profit for it. They are entitled to contend that the action of the Government to charge F.S.I. and thereby profit itself is ultra vires the Act. The petitioner in both the petitions have locus standi Apart from that PIL being non adversial litigation public interest must prevail. Mere absence of some pleading or some grounds will not prevent a constitutional Court from examining the real issues in controversy at the instance of public spirited citizens. See Janhit Manch