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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO. 22398 OF 2022 1. Kaalkaa Real Estates Private Limited,) Through its Director - ) Mr.Kanta Ramchandra Rane, ) having its registered office at ) Khar Sant Niwas CHS Ltd. 2nd Floor, ) Plot No.3, 14th Road, Khar West, ) Mumbai – 400 052. ) 2. Kanta Ramchandra Rane, ) Aged 56 years, Indian Inhabitant, ) Director – Kaalkaa Real Estates Pvt. Ltd.) Having its registered office at : ) Khar Sant Niwas CHS Ltd., 2nd Floor, ) Plot No.3, 14th Road, )
Khar West, Mumbai – 400 052. ) ….. Petitioners VERSUS
1. Municipal Corporation of Greater Mumbai,)
5, Mahapalika Marg, Dhobi Talao, ) Chhatrapati Shivaji Terminus Area, ) Fort, Mumbai, Maharashtra – 400 001. ) 2. Municipal Commissioner, )
Municipal Corporation of Greater Mumbai,)
5, Mahapalika Marg, Dhobi Talao, ) Chhatrapati Shivaji Terminus Area, ) Fort, Mumbai, Maharashtra – 400 001 ) 3. Executive Engineer, Building Proposals) (WS), )
Municipal Corporation of Greater Mumbai,)
K Ward, New Majas Market, Plot )
bearing CTS No.171/2, 175/A3, ) Village Majas, Poonam Nagar at ) J V Link Road, Jogeshwari (East), )
Mumbai ) ….. Respondents Mr.Shardul Singh, a/w. Mr.Preet Chheda, i/b. Ms.Prerna Gandhi for the Petitioners.
Mr.Anil Y. Sakhare, Senior Advocate, a/w. Ms.Madhuri More for the Respondent – MCGM.
Mr.Navnath Ghadge, E.E.(B.P.) ‘K’ Ward and Mr.Amit Patil – A.E. (B.P.) K/WS – I and Mr.Pankaj Bansod, Assistant Engineer, (B & F) K/
W Ward present in Court.
CORAM: R. D. DHANUKA AND KAMAL KHATA, JJ.
RESERVED ON : 23RD AUGUST, 2022 PRONOUNCED ON : 20TH SEPTEMBER, 2022
JUDGMENT
(Per 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 appli
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