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High Court of Judicature at Bombay
A.M. KHANWILKAR & A.P. BHANGALE, JJ.
Sandeep Sharadchandra Thakur
Versus
Navi Mumbai Municipal Corporation & Others
Public Interest Litigation No. 132 of 2011
Decided on : 20-03-2013
While allotting use of public land under public policy of State, due process of an invitation or advertisement must be strictly followed. - The policy made by the State or by any of its instrumentality must be a rational policy more particularly while allotting use of the public land on the basis of applications made by individuals, bodies, organizations or institutions recognized by law to follow the due process of an invitation or advertisement by the State or its agency/instrumentality. By entertaining applications made by individuals, organizations or institutions for allotment of land or for grant of any other type of largesse, the State cannot exclude other eligible or qualified persons from competing claim to an estate or legal right to be allotted on behalf of the State or its instrumentality. Any such allotment of land or grant of other form of largesse by the State or its agencies/ instrumentalities by treating it as a private business enterprise is liable to be treated as arbitrary, discriminatory and an act of favoritism and/or nepotism violating the soul of the equality clause embodied in Article 14 of the Constitution.
Constitution of India, 1950 - Articles 14 and 226 - Public Interest Litigation.
Since scarcity of common parking space in urban areas is becoming acute and posed serious problems to sustainable transport system hence Local Planning Authority ought to set standards for car parking and parking related problems. - Scarcity of common parking spaces in urban areas is becoming acute and has posed serious problems to sustainable transport system. Local public and planning and development authority need to act responsibly for transportation reforms, to solve the severe problem of mobility in city areas, shortage of car parking spaces. The local planning authority ought to set the standards for car parking and parking related problems. In densely populated cities parking car spaces can be made available at reasonable hourly, daily or periodical licence charges payable as consideration to the public authority, for obtaining written or computerized parking vehicle pass. The charges collected would help the public authority concerned to utilize the same for proper maintenance of the reserved parking premises for fair use and benefit of members of general public and for payment of salaries to the parking attendees and beautification of the area. Reserving personal parking spaces should be discouraged in shared, public and common parking premises. Common and shared parking for the benefit of general public must be encouraged. Efficient and well managed and regulated, preferably computer aided car parking scheme is necessary in urban environment.
In the case in hand reserved open ground space reserved for public parking-plot on which no FSI was permissible, could not have been selectively licensed like a private venture for allowing a private hotel establishment raising construction of the building and other structure like podium more particularly so in violation of D.C. Regulations of the municipal laws by the Authority, entrusted with the planned development of the Vashi area of Navi Mumbai.
A.P. Bhangale,J.
1. Rule. Counsel for the respective Respondents waive notice. Heard finally by consent of the parties.
2. The Petitioner-in-person claims that he is a Social Activist and takes up Social causes in public interest. He prays for a writ of mandamus against Respondent No.1, the Navi Mumbai Municipal Corporation (hereinafter referred as ‘NMMC’ for short) for direction to cancel development permission (Exh.'N') given to Hotel Tunga Regency Private Limited, Vashi, the Respondent no. 4 herein (hereinafter referred to as ‘Tunga’ for short) and for the direction to City and Industrial Development Corporation of Maharashtra, the Respondent no. 2 (hereinafter referred as ‘CIDCO’ for short) to cancel the leave & license agreement at Exh. 'B' regarding allowing parking of the vehicles upon public parking plot no. 36-B and to hand over the said plot to NMMC, the Planning Authority, for public parking management and for direction to the State of Maharashtra to investigate the events leading to the grant of the permission (Exh. 'N'), issuance of letter (Exh. 'L') by CIDCO and prayed for appropriate action against the officials of the respondents nos. 1 to 3, responsible to grant permission and concessions in violation of the Rules and Regulations.
3. According to the Petitioner, Respondent No. 3 – the State of Maharashtra issued the Notifications No. RPB-1171/18124.WII dated 20.03.1971, RPB.1172-II-RPC dated 16.08.1973 designated a site for development of new township at Navi Mumbai to the East of Mumbai Harbour and after acquiring the land at the site, vested the said land with the CIDCO, appointed by the State as New Town Development Authority for the area of Navi Mumbai. The CIDCO became the Planning Authority for the entire area of Navi Mumbai in accordance with the provisions of the Maharashtra Regional Town Planning Act, 1966 (for short, “MRTP Act”). The State of Maharashtra in exercise of the powers under Section 154 of the MRTP Act, issued order dated 07.09.1994, appointing NMMC as the Planning Authority for the developed nodes in Navi Mumbai like Vashi, Sanpada, Nerul, Belapur-CBD, Airoli, Koparkhairane etc., and consequently CIDCO ceased to be Planning Authority. However the CIDCO continues to be the Landlord of the entire land in Navi Mumbai including the land in developed nodes.
4. The CIDCO under the Agreement of Lease dated 11.12.2000, leased the plot no. 37 admeasuring 2282 sq. Mts. Sector no. 30A of Vashi node of Navi Mumbai to M/s. Tunga Regency Private Limited (for short, hereinafter referred to as “Tunga”) to construct a starred Hotel. The Petitioner contended that there is 20 meter wide Road to the North of plot no. 37 in possession of Tunga and to the north side of that road there is plot no. 36B admeasuring about 8096.56 Square Meter; thus the plots are separate. The plot no.36B is reserved for the “public Parking” in the nodal plan of Vashi.
5. Hotel Tunga was permitted the maximum FSI of 1.5 on plot no 37. Thus commencement certificate was granted by the NMMC on 23.05.2005 to construct a built up area of 3418.47 Sq. Mts. within permissible FSI of 1.5.9. Tunga had undertaken to provide 61 car spaces (each admeasuring 5 Mtrs. X 2.5 Mtrs.) for parking in plot no. 37.
6. Meanwhile, as argued by the Petitioner, Tunga had, apparently with malafide intentions represented to CIDCO in 2004 that it would undertake to develop plot no. 36B for public parking on build-operate-transfer (BOT) basis pursuant to leave and license agreement dated 18.11.2004 for duration of 15 years with recitals that the entire assets such as road, parking lot and garden will be public facilities which will be open to all. The agreement was signed by Mr. A.V. Kadam, the Estate officer of CIDCO which provided only Rs 100/- per annum as lease Rent and recited that Tunga is entitled to levy parking charges from the users of the parking lot.
7. Subsequently vide Notification dated 14.10.2005 the State Government permitted a higher
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