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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SANDEEP K. SHINDE, J.
Anand Apartment Co-Operative Housing Society Ltd. – Appellant
Versus
Aikya Realty Pvt. Ltd. – Respondent
Appeal from Order No. 136 of 2021, Notice of Motion No. 1170 of 2021, L.C. Suit (ST) No. 3729 of 2021
Decided On : 28-01-2022
Code of Civil Procedure, 1908 - Order 43 Rule 1(r) read with Section 104 - Maharashtra Regional and Town Planning Act - Section 45 and 149 - Development Control and Promotion Regulations - Regulation 2(36), 33(7) and 47(A) - Breach of building regulations - Discretionary Powers - Whether open space deficiency on northern side of Plot, has rendered development permission, void - Whether development permission in question has been granted by compromising fire protection requirements stipulated under Regulation 47(A) of DCPR - Whether redevelopment proposal under Regulation 33(7) of DCPR, admits “Demonstrable hardship” within meaning of Regulation 2(36) of DCPR - Whether order passed by Municipal Commissioner in exercise of discretion under Regulation 6(b) of DCPR, permitting modification of dimensions was in conformity with intent and spirit of the Regulations - Whether impugned order calls for interference - Challenging order passed by which learned Judge declined to restrain defendant no. 1 (developer) from making construction on Plot - Plaintiff is a Co-operative Housing Society - Defendant no. 1 is Developer/Owner of adjoining plot - Plaintiffs’ alleged, that defendant no. 1 in collusion with Planning Authority, started constructing ground plus 15 floors building on Plot as per development permission which was void, being granted in breach of building regulations.
Finding of the Court:
Planning Authority has not compromised the fire safety requirement i.e. Regulation 47 of DCPR, while granting development permission to develop the plot in question - There were planning restraints and it was not possible accommodate all existing tenants on one location and therefore rehabilitation of few tenants was proposed on different locations. Accordingly, splitting of residence of rehab tenants was allowed. Although, the plaintiff has not challenged this concession/relaxation granted by the Municipal Commissioner for splitting of residence of rehab tenants, yet this fact would show that, there was apparent hardship in developing the plot under Regulation 33(7) of DCPR - Factually speaking, plaintiffs have neither questioned discretionary powers of Municipal Commissioner to relax the dimensions stipulated in Regulations, nor challenged order relaxing space from 6 meters to 1.50 meters on Northern side of the Plot. There, challenge to development permission was not peripheral. In so far as, right to air and light is concerned, no substantive prayers have been made in plaint. For all that reasons, in my view, the order granting development permission under Section 45 of MRTP Act, was in conformity with Regulations. As a consequence, plaintiffs’ could not have questioned its legality and validity in suit in view of express bar contained in Section 149 of MRTP Act.
Result: Appeal dismissed and disposed of.
JUDGMENT :
SANDEEP K. SHINDE, J.
1. Plaintiffs, have fled this Appeal under Order 43 Rule 1(r) read with Section 104 of the Code of Civil Procedure, 1908, challenging the order dated 29th April, 2021, by which the learned Judge, City Civil Court, Mumbai declined to restrain defendant no. 1 (developer) from making construction on Plot No. 391, at Motishah Cross Lane, Byculla, Mumbai.
2. Heard Mr. Pradeep Aggarwal, learned Counsel for the appellant; Mr. Girish Godbole, learned Senior Counsel for the Municipal Corporation and Mr. Prasad Dhakephalkar, learned Senior Counsel for respondent no. 1.
Factual Matrix:
3. Plaintiff is a Co-operative Housing Society. It owns a building, situated at Plot No. C.S. No. 392, Motisha Cross Lane, Byculla, Mumbai. The defendant no. 1 is, the Developer/Owner of adjoining plot no. 391. Plaintiffs’ alleged, that the defendant no. 1 in collusion with Planning Authority, started constructing ground plus 15 floors building on Plot No. 391, as per development permission dated 15th April, 2020 which was void, being granted in breach of building regulations. Plaintiffs’ would assert, that, the development permission has been granted by the Planning Authority in defance of Development Control and Promotion Regulations for Greater Mumbai, 2034 (“DCPR” for short), by compromising the urban safety requirements. Plaintiffs would plead that, the building, then existing on Plot no. 391 was demolished by the defendant no. 1 and that distance between the old building prior to demolition and plaintiff’s building was approximately 9 feet/mtrs. however, as per approved plan, open space between their building and proposed building is 1.5 meters. In other words, plaintiff’s case is, that the Planning Authority granted development permission, and approved plans under Section 45 of the Maharashtra Regional and Town Planning Act, by compromising the fire and health safety of inhabitants of neighbourhood. As well, plaintiffs’ would assert that the proposed construction on Plot no. 391, would affect its members right to air and light. To assert these rights in the Suit (St.) No. 3729/2021, plaintiffs’ seek the following reliefs:
(b) That this Hon’ble Court be pleased to declare that the construction of the proposed building known as cozy cottage situated at C.S. no. 391 situated at 1st Motisha Cross Lane, (love lane), Byculla (E), Mumbai-400 027 is illegal, improper, bad in law.
(c) That this Hon’ble Court be pleased to passed the order directing the defendants no. 1 and 2 to remove the illegal, improper and unauthorized construction work of the proposed building known as cozy cottage situated at C.S. no. 391 situated at 1st Motisha Cross Lane, (love lane), Byculla (E), Mumbai-400 027.
(d) That this Hon’ble Court be pleased to grant the permanent order and injunction restraining the defendants, their officers, servants, agents, person/persons claiming through them from carrying out any addition, alteration and or construction of any nature of the proposed building on the plot bearing C.S. 391 situated at 1st, Motisha Cross Lane, (love lane), Byculla (E), Mumbai-400 027.”
4. Pending suit, vide Notice of Motion No. 1170/2021, plaintiffs’, sought an order, to restrain defendant no. 1 from making construction on Plot No. 391, on the premise that the development permission under Section 45 of the M.R.T.P. Act being granted in breach of DCPR, it was void. The learned trial Court declined the r
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