2013 Supreme(Bom) 988

High Court of Judicature at Bombay
MOHIT S. SHAH & N.M. JAMDAR, JJ.
Janhit Manch & Another
Versus
The State of Maharashtra Through the Principal Secretary & Others
Public Interest Litigation Petition No. 43 of 2012
Decided on : 13-05-2013

Headnote:Development Control Regulation for Greater Mumbai, 1991 - Regulation 44(7) - Limit for Refuge area.

       Where no maximum cap on refuge and fire escape was provided therefore Commissioner directed to reconsider issue of refuge area free from FSI. - The DCR 44(7)and DCR 44(5) deal with refuge area, fire escapes and external stair cases. DCR 44(7) does not provide for any outer limit. The refuge area and fire escapes are free of FSI. The concept of refuge areas and fire escape is for the benefit and safety of the residents of the building. Such area which provide for protection in case of fire are more relevant in the high rise buildings. In the building such as the present one, conventional fire fighting equipment may not reach from the ground. In such cases modern methods of fire fighting have to be deployed and adequate refuge area and fire escape need to be provided. Thus refuge area in such building will have to modeled and provided for differently than conventional low rise buildings.

       However even though there is no maximum cap on refuge and fire escape provided under the DCR, it cannot be an arbitrary exercise and refuge area cannot be provided at an absurd percentages of built up area. A situation where a developer is free to provide any extent of refuge area and claim an excessive exemption, cannot be countenanced.

       Though the circular dated 21st September, 1993 does not amount to modification of the DCR, it provides some general indication. The circular provides for 4% of total built of area for floors above 24 metres and not more than 50% of total built up area of the floor where it is provided. According to the petitioners the refuge area and fire escape amount to 72.22% of the total habitable built up area. It is also placed on record by the petitioners that even if other common area are added to total built upon area still it would be the percentage of refuge area around 38.57%.

       It was in the facts of that case, that the Court did not consider the refuge area amounting to 474 sq. mtrs. as excessive. The Court went on to hold that the DCR do not prohibit a party from providing larger refuge area. This may be so but it does not mean that there is no limit whatsoever. It would depend on facts of each case and that case Court found it to be not excessive.

       The Corporation itself now has realized that the area sanctioned to respondent No. 5 for refuge area is excessive. The Corporation has filed an additional affidavit on 18 September, 2012 wherein it is stated that the recommendations for refuge area were excessive. It is stated in the affidavit that the Commissioner has directed an enquiry to be instituted as to how the Chief Fire Officer granted refuge area in excess of fire fighting requirements.

       It is thus clear from the stand of the Corporation itself that the refuge area granted is an excess of the norms. Once the planning authority comes to the conclusion that the recommendation of the Chief Fire Officer and the concessions granted by the Commissioner based on such recommendation, are faulty, it is not enough to merely institute an enquiry. If the percentage of refuge area is of such a magnitude i.e. of 70% as alleged by the petitioners and the general indication as per the Corporation is only 4% then, it is necessary that the Corporation reconsiders the concession granted by the Commissioner as well as the Planning permission granted on this basis. The planning authority cannot, having once come to the conclusion that concessions and permissions grant were excessive, choose to remain silent. Instead of doing the exercise of finding out what will be the appropriate admissible refuge area for the first time in this petition, it will be appropriate if the Commissioner is directed to reconsider the issue regarding the refuge area free from FSI. Though Court leaves the adjudication to the Commissioner, it cannot help at observing that the refuge areas free of FSI as being claimed and granted to the respondent No. 5, appears to be excessive.

       The Corporation has placed on record that there is a letter dated 14th September, 2004 of Additional Collector which records that the compensation was paid. The second affidavit filed by the Corporation dated 23rd July, 2005 states that the compensation is not paid for 705.45 sq. mtrs. The counsel on the behalf of the Corporation submitted that the exact position will be ascertained from Urban Development Department and appropriate decision will be taken. Considering that Court has already directed the Corporation to reconsider the aspect of FSI of the refuge area/fire escape and that factual position needs further clarification, the Corporation will ascertain the exact position as regards the F SI in lieu of set back area and take appropriate decision and consequential action.

       Mumbai Municipal Corporation Act, 1988 - Section 354-A - Maharashtra Regional & Town Planning Act, 1966, Sections 44 and 45 - DCR 1999, Reg. 33 - Approval for construction of PPL.

       Construction of multistoried public parking lot (PPL) in Mumbai on deemed permission, not illegal. - (a) A letter of intent was issued to the respondent No. 5 on 6th August, 2010 to develop a PPL to accommodate 900 parking spaces under DCR 33(24). The plan submitted by respondent No. 5 were approved on 20th August, 2010 for three basements + ground + 15 story car park having an excess of 62000 sq. mtrs.

       (b) The arguments advanced by the petitioners in respect of PPL is primarily on the ground that since the commencement certificate was granted only up to plinth level, no construction could have been carried on beyond the plinth level. It is also submitted that unauthorized work in contravention of the stop work notices has been carried out and the construction of PPL is illegally carried out only for gaining incentive FSI.

       (c) Counsel for the petitioners submitted that the commencement certificate was granted in respect of the PPL up to plinth level only and no further commencement certificate was issued. It is submitted that since the commencement certificate was issued only up to plinth level no construction could have been carried out beyond the plinth. The counsel for the petitioners submitted that the case of the respondent No. 5 that it had deemed permission in respect of the PPL on 7th May, 2011 is not borne out by the record. The counsel submitted that on 22nd July, 2011, when inspection of construction was carried out, the PPL was only up to plinth. It was contended that when a notice was issued on 29th November, 2011, the respondent No. 5 in the reply did not deny that construction was not carried out beyond plinth. It was further urged that in the suit filed by respondent No. 5 the Corporation did not take steps to get the ad interim stay vacated.

       (d) The counsel for the petitioners urged that circular dated 22th June, 2011 regarding the height of PPL was not merely an executive circular but was issued pursuant to Clause 4 of DCR 33(24). The notice issued to respondent No. 5 based on the circular was not challenged by the respondent No. 5 in any Court of law.

       (e) It was also urged on behalf of the petitioners that whatever work of PPL that was carried out was in violation of the stop work notice and a benefit arising from such work cannot accrue to respondent No. 5. It was urged that there was no substantial progress in the construction so as to enable the respondent No. 5 to take benefit of proviso (a) of Section 51 of the MRTP Act.

       (f) It was urged on behalf of the respondent No. 5 that the rights to construct the PPL emanated not from the commencement certificate but from the principal approval granted by the State Government, which permission validly subsisted with the respondent No. 5. It was contended that after obtaining the principal approval from the State Government under DCR 33(24), the role of the respondent No. 2 was confined to being supervisory and ministerial in nature and the commencement certificate was limited to ensuring compliance with the approved plans from where the right to construct accrued to the respondent No. 5. It was further contended on behalf of the respondent No. 5 that no substantive rights accrue from a commencement certificate, and its issuance is merely a procedural to ensure that construction is carried out in accordance with the approved plans.

       (g) The counsel for the respondent No. 5 submitted that the work of PPL is carried out as per the original approved plans and original commencement certificate dated 1st October, 2010. The counsel submitted that the Corporation has not denied that the letter of 7th May, 2011 was received and it is not denied that no decision thereon was taken. The counsel submitted that there was no stop work notice for the PPL till 14th December, 2011 and which notice was stayed by the City Civil Court. The counsel further submitted that the inventories were not signed by respondent No. 5 and do not depict the correct state of affairs. It is further urged that the inventories were in respect of stop work notice issued to residential building.

       (h) The counsel for the respondent No. 5 submitted that once the work had substantially progressed, Section 51 of the MRTP Act cannot be invoked. A decision of High Court in the case of Kohinoor CTNL Infrastructure Company Private Limited and another v. Municipal Corporation of Greater Mumbal and others, (Writ Petition No. 143 of 2012 decided on 9th July, 2012) 2012 (6) All MR 49 was relied upon. The counsel submitted that the grant of permission under DCR 33(24) stipulate that incentive FSI will be available and the PPL has been completed and therefore the respondent No. 5 is entitled to incentive FSI on the basis of plans approved for residential buildings.

       (i) The Corporation has filed three affidavits. The Corporation has contended that the it had issued notice under Section 51 of the Act to the respondent No. 5 in view of Circular dated 22nd February, 2011 and reply has been filed to the said notice. It is also stated that the stop work notice under Section 354-A of the MMC Act was issued and the respondent No. 5 has instituted a civil suit in which an order of injunction has been passed. The Corporation has stated that the question as to whether there is any deemed conveyance is under consideration of the Civil Court. The Corporation submitted that against the decision given by the Division Bench of High Court in the case Kohinoor CTNL Infrastructure Company Private Limited, 2012 (6) All MR 49 on 9th July, 2012, the Corporation has find special leave petition which is pending in the Apex Court.

       (j) While considering the rival submissions it has to be kept in mind that Court is considering a public interest litigation. The construction in question is of a public parking lot is ultimately a public amenity. In a city like Mumbai need for public parking cannot be emphasized enough. The present PPL assures 900 parking places. It is in this backdrop that we have to consider the submissions made by the petitioners made in public interest. It also needs to be considered as to whether the respondent No. 5, who has constructed the PPL which is to be handed to the Corporation for benefit of general public, should be deprived of the incentive FSI.

       (k) The Corporation has accepted the factual position in the affidavit dated 4th May, 2012 that the construction of PPL has substantially progressed and it is near completion. The 900 parking lots meant for use of general public are thus nearly ready for public use. The petitioners have primarily relied upon inventory reports and stop work notices issued by the Corporation to contend that the construction of the PPL is illegal. It is to be noted that the inventories which were carried on have not been signed by respondent No. 5. If the entire case is sought to be built on the inventory reports then such reports need to be unquestionable documents. The inventory reports, on the face of it do not show that they have been signed by the respondent No. 5. As far as the stop work notice is concerned, Corporation has itself admitted that the stop work notice dated 16th July, 2011 was not in respect of construction of PPL.

       (l) The respondent No. 5 has contended that it had submitted a letter on 7th May, 2011 under DCR 6(4) for further commencement certificate and the application having not been refused, deemed to have been granted. The petitioners have laid heavy emphasis on the fact that the said letter purported to be of 7th May, 2011 is undated and therefore there is no question of deemed permission. It is true that the said letter is undated but there is a receipt by the Corporation of having received the application on 7th May, 2011. During the course of the hearing the counsel for the Corporation produced the original inward register. Court perused the said inward register and found nothing suspicious or out of ordinary. There is an entry of 7th May, 2011 as regards receipt of the application of the respondent No. 5 which seems to be made in usual course. Admittedly this application is not decided by the Corporation. In the circumstances, Court does not find that the submission made by the respondent No. 5 that it had deemed permission is without any substance. The respondent No. 5 has filed a civil suit taking this contention in which there is an interim order passed in favour of respondent No. 5.

       (m) As far as the notice issued by the Corporation on the basis of circular dated 22nd June, 2011 is concerned, it is true that the respondent No. 5 has not challenged the circular. However, Court cannot ignore the fact that in series of orders Division Bench of High Court held that the said circular was not a valid instrument and have passed orders directing the Corporation not to implement the said circular against the petitioners therein. Apart from this position, Division Bench of the Court in the case of Kohinoor CTNL Infrastructure Company Private Limited, 2012 (6) All MR 49, has held that once the work has substantially progressed then the Corporation ought not to invoke power under Section 51 of the MRTP Act. In the said decision the Division Bench clarified that what is ’substantial progress’ will depend on facts of each case and no general principle can be laid down in that regard. The respondent No. 5 in its reply to the stop work notice had given details of the steps taken by it and the monies spent, which have been referent earlier. Details have been given about the work force employed, third agencies appointed and investment made and expenses incurred. The principle laid down in the case of Kohinoor CTNL Infrastructure Company Private Limited, 2012 (6) All MR 49 is an equitable one that when a party substantially alters its position based on a position of law then equities are created in it’s favour. This position is statutorily recognized in the proviso to the Section 51 of the MRTP Act itself.

       (n) In the present case the assertion of the petitioners as regards the factual position is based primarily on the inventory carried out by the Corporation, to demonstrate that substantial work had not progressed. As noted above the inventories are not signed by the respondent No. 5 acknowledge them as true and on the basis of such inventories. If the construction had progressed substantially then respondent No. 5 will be entitled to seek protection of the observation made by the Division Bench of the Court in the case of Kohinoor CTNL Infrastructure Company Private Limited, 2012 (6) All MR 49. In a public interest litigation High Court is not inclined to hold that the construction of PPL is illegal on the basis of an inventory which is not signed by the aggrieved party and deprive it the protection of an equitable principle laid down in the aforesaid decision of the Division Bench.

       (o) The respondent No. 5 has placed on record that it carried on construction on the basis of deemed permission. The respondent No. 5 has placed on record that there was no stop work notice in respect of PPL till 14th December, 2011, which notice was stayed by the City Civil Court. Court finds force in the submission of the respondent No. 5 that it had deemed permission to continue with the construction and in fact the construction had come up substantially. The civil suit filed by the respondent No. 5 is pending in which the Civil Court has passed an interim order finding prima facie substance in the case of the respondent No. 5. Court does not find any grave error in the order of interim relief passed so as to override the same and hold that the construction of PPL as illegal. The construction of PPL has been completed in accordance with sanctioned plan. As noted earlier, the said PPL will be handed over to the Corporation free of costs for the use of general public. Once that is done the respondent No. 5 will be entitled to avail of the incentive FSI.

       Mumbai Municipal Corporation Act, 1988 - Section 354-A - Maharashtra Regional & Town Planning Act, 1966, Sections 44 and 45 - DCR 1999, Reg. 33(4) - Residential Building Plans.

       Where building plan for residential building was sanctioned upto 56 floors but commencement certificate issued for only 43 floors therefore Builder may apply for regularisation and corporation may consider such request. - (a) On this ground it is submitted by the petitioners that under the provisions of DCR 33(24) grant of incentive FSI in lieu of PPL is contemplated with the previous approval of the State Government and it is available only after such PPL is constructed and handed over to the Corporation free of costs. It is submitted that the State Government, while according approval on 18th June, 2010, made this condition clear. It is submitted that incentive FSI of 31002.9 sq.mtrs. was being claimed by respondent No. 5 though the said FSI had not accrued to respondent No. 5. It is submitted that when the amended plans were approved on 8th February, 2011 for 56 floors, the FSI that was approved to the respondent No. 5 was taken into consideration. It is submitted that FSI for construction of additional floors from 44 to 56 was solely dependent on the incentive FSI. It is submitted that till date mandatory precondition of handing over the PPL has not been fulfilled by the respondent No. 5.

       (b) It is submitted on behalf of the petitioners that there is no commencement certificate to construct the residential building beyond 43rd floor however the respondent No. 5 has constructed the residential building up to 56 floors without there being any commencement certificate, it is submitted that since the construction is in breach of law it should not be permitted to be regularized. It is further submitted that in the written statement tiled by the Corporation it is placed on record that the work in the main building has reached completion. In spite of the pendency of the suit the respondent No. 5 has undertaken construction in a hurried manner.

       (c) The counsel for the respondent No. 5 on the other hand submitted that the grant of commencement certificate is only a ministerial action and substantive rights of the parties are governed by the sanction of plans. It is submitted that the plans have been approved from time to time and the residential structure is approved till 56 floors. It is submitted that the work has been carried out as per the sanctioned plan and non- endorsement of commencement certificate is not a breach of the DCR. It is further submitted that the position has been recognized under Section 53 of the MRTP Act and in such situation there is an option for regularization under Section 44 of the MRTP Act. The counsel for the petitioners have placed on record circulars dated 17th June, 2006, 6th July, 2005 and 4th February, 2011 in respect of the regularization.

       (d) The counsel for the Corporation submitted that commencement certificate for residential building is granted up to 43rd floor, however plans are sanctioned till 56 floors and the decision thereupon is pending.

       (e) The position thus emerges that the building plans of the respondent No. 5 for the residential building are sanctioned up to 56 floors. It is true that the commencement certificate has been issued only till 43rd floors. The question is whether the action of the respondent No. 5 to continue construction up to 56 floors is so patently illegal so as to warrant an order of demolition. It is to be noted that the plans are sanctioned up to 56 floors and the construction per se is not in violation of the sanctioned plans. The Corporation has placed on record that before occupation certificate is granted these aspects will be considered. Section 52 of the MRTP Act envisages different categories of constructions. Once a construction is found to be as falling in the category of constructions enumerated in Section 52 then a notice under Section 53 of the MRTP Act is issued. At this stage it is open to the developer to make an application for regularization as per the Act and the circulars and it is open to the Corporation to consider the re quests as per law. Since the Corporation has not yet granted occupation certificate to the respondent No. 5, the Corporation has not yet taken a final decision in the matter. At this stage considering the fact that there is a sanctioned plan which Permits the respondent No. 5 to construct up to 56 floors, Court does not think it necessary to intervene and issue a drastic order of demolition on the ground that the work is carried out beyond commencement certificate. When the statutory planning body has not yet taken final decision in the matter, it will not be appropriate to prejudge the issue and direct demolition.