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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, KAMAL KHATA, JJ.
Kaalkaa Real Estates Private Limited, Through its Director Mr.Kanta Ramchandra Rane – Appellant
Versus
Municipal Corporation of Greater Mumbai – Respondent
Writ Petition (L) No. 22398 of 2022
Decided on : 20-09-2022
The Court held that the second application for retention filed by the petitioners for regularization/retention under section 44 of the MRTP Act is not maintainable even if the first application for regularization/retention which was made for the larger plot was rejected on various grounds on merits by the Municipal Corporation and the said order having been upheld by this Court in the writ petition filed by the petitioners. The Court further held that the Municipal Corporation cannot be allowed to consider an application for retention even in case of large scale violation of the sanctioned plan for carrying out construction granted by the Municipal Corporation itself or to what extent and in what circumstances application for retention/regularization of violations can be considered.
Fact of the Case:
The petitioners, who are the original owners of Aadish Bungalow at CTS Nos. 997 and 997A of Juhu, Mumbai, filed a writ petition challenging the notices issued by the Municipal Corporation for alleged unauthorized addition, alterations and change of user in contravention to the approved plan by the petitioners. The petitioners also filed an application for retention of the unauthorized construction. The Municipal Corporation rejected the said application on various grounds. The petitioners filed a writ petition challenging the said order of rejection. The Court dismissed the said writ petition. The petitioners filed a fresh application (hereinafter referred to as the 2nd application) on 11th July, 2022 for retention of the unauthorized construction. The Municipal Corporation in its affidavit stated that the 2nd application filed by the petitioners for regularization/retention under section 44 of the MRTP Act is maintainable even if the first application for regularization/retention which was made for the larger plot was rejected on various grounds on merits by the Municipal Corporation and the said order having been upheld by this Court in the writ petition filed by the petitioners.
Finding of the Court:
The Court held that the second application for retention filed by the petitioners for regularization/retention under section 44 of the MRTP Act is not maintainable even if the first application for regularization/retention which was made for the larger plot was rejected on various grounds on merits by the Municipal Corporation and the said order having been upheld by this Court in the writ petition filed by the petitioners. The Court further held that the Municipal Corporation cannot be allowed to consider an application for retention even in case of large scale violation of the sanctioned plan for carrying out construction granted by the Municipal Corporation itself or to what extent and in what circumstances application for retention/regularization of violations can be considered.
Issues: 1. Whether the second application for retention filed by the petitioners for regularization/retention under section 44 of the MRTP Act is maintainable even if the first application for regularization/retention which was made for the larger plot was rejected on various grounds on merits by the Municipal Corporation and the said order having been upheld by this Court in the writ petition filed by the petitioners? 2. Whether the Municipal Corporation can be allowed to consider an application for retention even in case of large scale violation of the sanctioned plan for carrying out construction granted by the Municipal Corporation itself or to what extent and in what circumstances application for retention/regularization of violations can be considered?
Ratio Decidendi: 1. The Court held that the second application for retention filed by the petitioners for regularization/retention under section 44 of the MRTP Act is not maintainable even if the first application for regularization/retention which was made for the larger plot was rejected on various grounds on merits by the Municipal Corporation and the said order having been upheld by this Court in the writ petition filed by the petitioners. The Court relied on the following judgments: - State of U.P. & Ors. Vs. Maharaja Dharmander Prasad Singh & Ors. (1989) 2 SCC 505 - Raja Bahadur Motilal Poona Mills Ltd. & Anr. Vs.State of Maharashtra & Ors., (2003) 1 Bom C R 251 - City of Nagpur Corporation, Nagpur Vs. Indian Gymkhana, Nagpur, 2010 (3) Mh.L.J. 196 - Susme Builders Private Limited Vs. Chief Executive Officer, SRA, 2014 SCC OnLine Bom 4822 - State of Jharkhand & Ors. Vs. Brahmputra Metallics Ltd., Ranchi & Anr., 2020 SCC OnLine SC 968 - Consumer Action Group & Anr. Vs.State of T.N. & Ors., (2000) 7 SCC 425 - Friends Colony Development Committee Vs. State of Orissa & Ors., (2004) 8 SCC 733 - Sharad Nago Chinawale Vs. Ulhas Devram Sable & Ors., 2017 SCC OnLine Bom 8179 2. The Court further held that the Municipal Corporation cannot be allowed to consider an application for retention even in case of large scale violation of the sanctioned plan for carrying out construction granted by the Municipal Corporation itself or to what extent and in what circumstances application for retention/regularization of violations can be considered. The Court relied on the following judgments: - Mahendra Baburao Mahadik & Ors. vs. Subhash Krishna Kanitkar & Ors., (2005) 4 SCC 99 - Mahendra Baburao Mahadik & Ors. (supra) - M.I. Builders (P) Ltd. vs. Radhey Sham Sahu (1999) 6 SCC 464 - Sharad Nago Chinawale Vs. Ulhas Devram Sabale, 2019 SCC OnLine Bom 1771 - Divgi Metal Wares Pvt. Ltd. Vs. Municipal Corporation of the City of Pune & Ors. (2019) 5 Mah LJ 484 - Supertech Limited vs. Emerald Court Owner Resident Welfare Association & Others, (2021) 10 SCC (1) - Pratibha Co-operative Housing Society Ltd. and another vs. State of Maharashtra & Others, (1991) 3 SCC 341 - High Court on its own motion In the matter of Jilani Building at Bhiwandi vs. Bhiwandi Nizampur Municipal Corporation and others, (2022) SCC OnLine Bom 386 - Dipak Kumar Mukherjee vs. Kolkata Municipal Corporation and Ors., (2013) 3 SCC (Civ) 72 - Sudhir M.Khandwala vs. Municipal Corporation of Greater Mumbai & Ors., 2010 (2) Mh.L.J. 759
Final Decision: The Court dismissed the writ petition with cost quantified at Rs.10,00,000/- which shall be paid by the petitioners to Maharashtra Legal Service Authority within two weeks from today. The Court also rejected the application for retention of unauthorized construction submitted by the petitioners on 11th July, 2022. The Court directed the respondents to execute the orders dated 11th March, 2022, 16th March, 2022 and 23rd June, 2022 within two weeks from today and to demolish the unauthorized construction carried out by the petitioners and to report compliance before this Court within one week from the date of implementing the order passed by this Court.
JUDGMENT
R.D.Dhanuka, J.
By this petition filed under Article 226 of the Constitution of India, the petitioners seek a writ of mandamus directing the respondents to consider and decide the new application No. P- 12001/2022/K/W Ward/FP/342/1/New dated 11th July, 2022 under section 44 of the MRTP Act filed by the petitioners in accordance with law and on its own merits. Some of the relevant facts for the purpose of deciding this petition are as under :-
2. M/s.Artline Properties Pvt. Ltd. was the original owner of Aadish Bungalow at CTS Nos. 997 and 997A of Juhu, Mumbai. The said M/s.Artline Properties Pvt. Ltd. has been amalgamated and merged into the petitioner no.1 company on 18th October, 2017. The petitioner no.1 company is a closely held family concern of Mr. Narayan Rane and his family who held shares in the petitioner company. It is the case of the petitioners that by an indenture made at Mumbai on 25th April, 2006, Mr.Piroj Nowroji Dagora and Ms.Banoo Nowroji Daroga granted lease of the land and premises admeasuring about 1080.2 square meters or thereabouts of the land being part of Plot No.12 and bearing C.T.S.No. 997 and 997A, Santacruz Town Planning Scheme No.2. The said M/s.Artline Properties Pvt. Ltd. had applied for permission to carry out construction on the said land.
3. On 11th June, 2007 the Ministry of Environment and Forests addressed a letter to the Chairman, Maharashtra State Coastal Zone Management Authority & Principal Secretary, Environment Department, the Management Authority and accorded clearance in respect of the said plot bearing C.T.S.No. 997 and 997-A under Coastal Regulation Zone Notification, 1991 for construction of bungalow on the said plot subject to various conditions. One of the conditions prescribed under the said sanction was that the said construction should be undertaken with the Floor Space Index (FSI) 1.0 as existed on 19th February, 1991. The proposed development should be taken up on the landward side of the existing (constructed prior to 19th February, 1991) authorized structure/road.
4. On 23rd January, 2013, the Municipal Corporation granted full occupation certificate for the work of residential building comprising of basement + stilt + 1st to 7th and 8th (Pt.) upper floors on plot bearing CTS Nos. 997 and 997A. It is the case of the petitioners that an inspection notice was issued by the Municipal Corporation in the name of the erstwhile company M/s.Artline Properties Pvt. Ltd. under section 488 of the Mumbai Municipal Corporation Act, 1888 (for short the said MMC Act) dated 17th February, 2022 and 18th February, 2022. On 21st February, 2022, the Deputy Commissioner, K/West Ward of Corporation along with other officers visited the said premises and made a Panchnama/report.
5. On 25th February, 2022, the Designated Officer of the Corporation issued a notice under section 351(1A) of the said MMC Act calling upon the petitioners to show cause that the work elucidated in the schedule appended to the said notice was in accordance with the provisions of sections 337, 342 and 347 of the MMC Act. In the schedule to the said notice, the Corporation had alleged various unauthorized addition, alterations and change of user in contravention to the approved plan by the petitioners.
6. On 3rd March, 2022 the erstwhile directors of M/s.Artline Properties Pvt. Ltd. with the consent of the petitioner no.1 company replied to the said notice. On 4th March, 2022, the Corporation issued a letter to the noticees, the erstwhile directors of the M/s.Artline Properties Pvt. Ltd. directing them to appear before the Office of the Executive Engineer (B & F), K West Ward on 7th March, 2022.
7. On 4th March, 2022, the Corporation issued another notice alleging that there was change of use in respect of the said premises. The Municipal Corporation thereafter rendered hearing to the petitioners through an advocate on 10th March, 2022. On 10th March, 2022, the petitioners through its architect made an application to
The main legal point established in the judgment is that unauthorized constructions and the absence of automatic sub-division of the plot led to the rejection of the Petitioners' application for rete....
The court established that unauthorized constructions in eco-sensitive areas cannot be regularized post facto, and the right to seek regularization is not available to those who violate planning laws....
Municipal authorities must act promptly against unauthorized constructions, as they violate planning laws and undermine public interest.
A person responsible for unauthorized construction has no right to reconstruct the same after demolition and then apply for regularization.
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