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2016 Supreme(Bom) 133
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ANOOP V.MOHTA AND G.S.KULKARNI, JJ.
M/s Mahendra Builders – Petitioners
Vs.
The State of Maharashtra and Ors. – Respondents
WRIT PETITION NO.315 OF 2013
Decided On : 11.02.2016
Important Points
Subject
LAND USE AND ZONING - REGULARIZATION OF UNAUTHORIZED CONSTRUCTION
Act Referred
MAHARASHTRA REGIONAL AND TOWN PLANNING ACT : S.53(1), S.47, S.53
Headnote
(B) Maharashtra Regional Town Planning Act 1966 – Section 53 (1) – Regularisation of additional construction – Unauthorized construction in question is in a heritage building – Any addition or alterations in a heritage building would necessarily have far reaching implications to its structural stability and safety of occupants therein – As a matter of legal requirement and necessarily any additions or alterations are required to be undertaken only after obtaining prior permission from authorities concerned and only after such permission is granted, additions or alterations can be carried out – In present case, large additions and alterations are done and that too without a prior permission, of which regularization was sought – Impugned order passed by Municipal Commissioner struck down.
(C) Review – Parameters – Quasi judicial authority cannot review its own order unless power of review is expressly conferred on it by statute – Power of review is not an inherent power, it must be conferred by law either by specifically or by necessary implication.
Result – Writ Petition allowed.
Cases Referred :
Dr.Smt.Kuntesh Gupta Vs. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) & Ors., AIR 1987 SC 2186
Advocate Appeared:
Mr.Aspi Chinoy Sr.Advocate a/w Mr.P.S.Dani Sr.Advocate i/b Mrs.Janhvi Bejoy for Petitioners
Ms.Geeta Shastri Additional Government Pleader a/w Ms.Anjali Helekar Assistant Government Pleader for Respondent no.1
Mr.Kevic Setalwad Sr.Advocate a/w Mr.H.C.Pimple for Respondent nos.2 to 4.
Mr.Zai Andharujina a/w Ms.Sonal i/b Ms.Kavita Shah for Respondent nos.5 to 7.
G.S.Kulkarni, J.
1. Rule Returnable forthwith. By consent and at the request of the parties heard finally.
2. By this Petition under Article 226 of the Constitution of India, the petitioners seek quashing and setting aside of the order dated 24 January 2013 passed by the respondent no.3the Municipal Commissioner of the Mumbai Municipal Corporation, whereby it is held that the proposal for regularization submitted by the respondent nos.5 to 7 of additions and alterations namely additional rooms and toilets at the premises namely ‘Empire Royale Hotel' 3rd Floor, Empire Building, 147, Dr.D.N.Road, Fort, Mumbai, be processed by the Executive Engineer (Building and Proposals). The petitioners are also seeking quashing of the communication of the Assistant Engineer (Building and Proposal) dated 22 March 2012 by which certain compliances are sought from Respondent Nos.5 to 7. A further prayer is made that the notice dated 10 October 2003 issued under section 53 (1) of the Maharashtra Regional Town Planning Act 1966 ( for short the M.R.T.P. Act) and order dated 18th March 2004 passed by the Executive Engineer (Building and Proposal) declaring the said additional construction on the 3rd floor with intended toilets as unauthorized be implemented.
3. The litigation between the parties has a chequered history which needs to be noted in a little detail. The Petitioners claim to be the owners of a property being a heritage building known as ‘Mahendra Chambers' situated at C.S.No.1390, Dr.D.N.Road, Fort Mumbai acquired by virtue of a Deed of Assignment and Agreement dated 23rd August 1974 entered with the predecessor-in-title of the Petitioners namely the Parsi Panchayat Trust. These premises stand on the land leased by the Municipal Corporation for Greater Mumbai. There is a litigation pending in regard to the issue of subsistence of the lease. However, that may not be relevant in the context of the present dispute as the subject matter pertains to the additions and alterations namely the construction of the additional rooms and intending toilets on the 3rd floor of the said premises by Respondent No. 5 to 7, who are admittedly in occupation of the same. The 3rd floor premises were used by Respondents for a lodging house business under the name and style of “Empire Hindu Hotel.”
4. It is the Petitioner's case that the respondent no.5 under the guise of carrying structural repairs had made unauthorized construction on the 3rd floor of the said premises without the consent of the petitioners or of the Municipal authorities by constructing several additional rooms with attached toilets as also a mezzanine floor so as to multiply number of rooms and profit therefrom. This unauthorized construction casted a huge load on the 100 year old heritage building.
5. The Municipal Corporation had issued a notice dated 10th October 2003 under section 53 (1) of the M.R.T.P.Act calling upon respondent no. 5 to demolish the mezzanine floor as also the additional rooms with intended toilets. Petitioners aver that even as per the plans dated 28 June 2001, approved by the Corporation it was evident that there were only 16 number of rooms on the 3rd floor with only two toilet blocks on other side of the 3rd floor, which revealed nonexistence of the mezzanine floor and the additional rooms with attached toilets. Respondent no. 5 attempted to seek regularization of this unauthorized construction after receipt of the demolition notices dated 10 October 2003 and 5 January 2004 issued by the Corporation under section 53 (1) of the M.R.& T.P.Act. The Executive Engineer (Building and Proposal) by his communication dated 18 March 2004 rejected the regularization proposal. In this communication it was recorded that as per the municipal records of the Assessment Department there was no proof/documents to prove existence of mezzanine floor above 3rd floor of the building and that as regards the additional rooms constructed on the 3rd floor with intended toilets the sa
