JUDGMENT :

1. This Writ Petition is filed under Article 226 of the Constitution of India by the Petitioners seeking therein to quash and set aside the impugned order dated 15 June 2023 passed by the Executive Engineer of Building Proposal (K-East Ward) of the Mumbai Municipal Corporation of Greater Mumbai (for short “Corporation”).

FACTUAL BACKGROUND:

2. The Petitioners claimed to be occupiers of a plot of land, bearing CTS No. 1 (pt) new CTS No. 1B and 1C of village Vyaravaly at Jogeshwari Vikroli Link Road, Jogeshwari (E) Mumbai, admeasuring about 8000 sq. mtrs. which was then owned by Mahal Pictures Limited (for short “the subject plot of land”). The subject plot of land was reserved in the Development Plan of 1991 (for short “DP 1991”) for the public purpose of “Recreation Ground.”

3. In the year 2002, the Mahal Pictures Pvt. Ltd. (Owners) and the Petitioners (Occupiers) of the subject plot of land had desired to develop the same under Regulation 9 Table 4 (4)(k) of the Development Control Regulations 1991 (for short “DCR 1991”) i.e. by using 0.15% FSI of the plot, on 33% of the total plot area for ancillary purposes and agreeing to keep the balance area of 67% available for use by the Public as a Recreation Ground.

4. The Corporation accepted this proposal under File No CHE/3341/DPWS/H&K dated 11 March 2002. Accordingly an Agreement dated 9 February 2004 was entered into between the Corporation, Mahal Pictures Pvt. Ltd. as the Owners and the Petitioners as the Occupiers of the said land, whereunder the Corporation agreed to permit the occupiers to construct a sports facility on 33% of the plot area and the occupiers agreed to keep 67% of the Plot area open and available as a Garden for the unrestricted use of the General public.

5. On 18 June 2005, the Petitioners purchased the subject plot of land from the erstwhile owners by a Conveyance dated 18 June 2005, on the terms and conditions more specifically stated therein.

6. In the year 2018, the Development Plan 2034 (for short “DP 2034”) and Development Control and Promotion Regulation 2034 (for short “DCPR 2034”) for the City of Mumbai were sanctioned. The Petitioner's entire plot of land continued to be reserved for the purpose of garden.

7. In the month of October 2020, the Petitioners through their Architects made an online application that they be permitted under DCPR 2034, Regulation No. 17(1) to surrender/transfer 70% of the subject plot of land to the Corporation and further after demolition of the existing building, construct/develop on the balance 30% area a building utilising the FSI of the entire plot of land.

8. On 20 January 2021, the Corporation issued Development Permission to the Petitioner and the Corporation also issued an IOD on 22 January 2021 for construction of a Commercial hotel building on the balance 30% of the subject plot.

9. Shortly thereafter on 26 February 2021, the Corporation issued a Commencement Certificate for construction upto plinth level/zero FSI.

10. On 5 September 2022, by a letter Mr. Kirit Somaiya (former M.P.) lodged a complaint to the Corporation alleging that the permission to the Petitioners for development of the subject plot under DC Regulation 17(1) had been wrongly given, as under the Agreement dated 9 February 2004 between Mahal pictures, the Petitioners and the Corporation, it had been provided that: (i) 67% of the plot would be available for use of the general public as a garden and (ii) there was a condition that in future no person could claim compensation for allowing 67% of the plot to be used as a RG.

11. By letter dated 17 October 2022 addressed by the Executive Engineer to Mr. Kirit Somaiya with reference to his complaint letter dated 5 September 2022 informed that the permissions had been granted in accordance with DCPR 2034 17(1) as the Corporation was to receive 70% of the plot area without paying any compensation an