Bombay High Court
Janhit Manch And 1 Other vs State Of Maharashtra And 1 Other on 4 February, 2016
Author: A.S. Oka
Bench: A.S. Oka, C.V. Bhadang
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION (L) NO. 133 OF 2015
Janhit Manch & Anr. .. Petitioners
Vs.
The State of Maharashtra & Anr. .. Respondents
......
Mr. S. U. Kamdar, Senior Counsel a/w. Ms. Amanda
Rebello, Advocate for the Petitioners.
Mr. Shrihari Aney, Advocate General a/w. Ms.
Poornima H. Kantharia, Government Pleader a/w. Ms.
Geeta Shastri, Addl. Government Pleader for the
Respondent No. 1 - State
Mr.A.Y.Sakhare, Senior Counsel a/w Ms. Trupti
Puranik for the Respondent No.2 - Mumbai Municipal
Corporation
......
CORAM : A.S. OKA AND
C.V. BHADANG, JJ.
DATED : FEBRUARY 2, 3 and 4 2016.
JUDGMENT :(Per A.S. OKA, J.) FACTS OF THE CASE The submissions were heard on the earlier date. Today the petition is fixed for dictation of the judgment. In this PIL, the challenges is to the amendments made to the Development Control ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:39 ::: ssp 2/40 pil-l-133-13j.doc Regulations for Greater Mumbai, 1991 (hereinafter referred to as "the said Regulations") The said regulations were sanctioned on 20th February, 1991, which came into force on 1st March, 1991. Thereafter the same were amended from time to time. In this petition, there is a challenge to a part of two different amendments carried out to the said Regulations. The first amendment was under the Notification dated 6th August, 2014 by which Clause 24 of Regulation 33 was amended. The challenge in this PIL is to Sub-clause (xii) of Clause 24 of Regulation 33. The second challenge is to the amendment made by the Notification dated 21st May, 2015. By this amendment, the explanatory note no.
(i) to Clause 4 of Regulation 35 was substituted.
3 With a view to appreciate the submissions made across the bar by the learned counsel appearing for the parties, a brief reference to the facts of the case will be necessary.
4 As far as Clause 24 of Regulation 33 is concerned, the same was made a part of the said Regulations by a notification dated 20th October, 2008. A provision was made therein for grant of incentive FSI to the developers against a public parking to be constructed which is to be handed ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:39 ::: ssp 3/40 pil-l-133-13j.doc over free of cost to the Mumbai Municipal Corporation. Various averments have been made in the PIL for contending that undue advantage was being taken of Clause 24 of the said Regulation as introduced by the notification dated 20th October, 2008 as incentive FSI could be used by constructing Public Parking Lots (for short "PPL") consisting of any number of floors as there was no cap on number of floors constructed.
5 It is pointed out that there was a circular issued in the year 2011 imposing a cap on number of floors of PPL constructed by the developer. Reliance is placed on the said circular dated 22nd June, 2011. Thereafter, a notice was issued on 19th March, 2012 under Sub-section (1AA) of Section 37 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as "the MRTP Act", for short), by which modifications to Clause 24 of the Regulation 33 were proposed by substituting Sub-Clause (vii) of Clause 24 and by adding Sub-clauses (viii),(ix) and (x) to clause
24. Objections and suggestions were invited to the proposed modifications. For the purposes of this petition, proposed Sub-Clause (x) which was notified under the said notification is relevant which reads thus:
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" (x) The maximum cap of built up area
parking space shall be 50.00 sq. Mtr for LMV's, 65.00 Sq. Mts. for LCV's and 120.00 Sq. Mtr. for HMV's/Buses. The incentive F.S.I. Shall be calculated as per above standard built up area or actual whichever is less, per parking space.
All the development which have been given permission as per the DC Regulations of October 20, 2008, except those which have progressed substantially, will have to follow the regime of the amended 33(24) and will have to pay the premium of 50% what they would otherwise have to pay as per the new regime."
6 After objections and suggestions were considered, the first impugned notification dated 6th August, 2014 was issued by the State Government by sanctioning the proposed modifications notified on 19th March, 2012 with certain modifications. The sanctioned modifications read thus:
"SCHEDULE Sanctioned modification to Development ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:39 ::: ssp 5/40 pil-l-133-13j.doc Control Regulation 33(24) The first para of the Regulation is modified as under:-(24)
Development of Multi Storey Public Parking Lots (PPL) :- with the previous approval of the Govt., for development of Multi Storey Public Parking Lots on any plot abutting a road and/or a stretch of road, additional FSI (hereinafter referred to as "incentive FSI") as specified below on built up parking area, created and handed over to the MCGM free of cost, shall be allowed, on the land belonging to a private owner, which is not reserved for any public purpose, subject to the conditions contained herein below:-
Clause (vii) is substituted as follows:-
(vii) The Incentive FSI permissible under the Regulation against the built up area of the public parking lot, shall be 50% of the built - up area of the public parking lot, such that the total permissible FSI including the Incentive FSI under the Regulation does not exceed ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:39 ::: ssp 6/40 pil-l-133-13j.doc 4.0 in the Island City and 3.0 in the Suburbs / Extended Suburbs.
The following Clauses are added after Clause (vii):-
(viii) Public Parking shall be limited to G + 4 and three basements.
(ix) The maximum cap on the built up area per parking space shall be 5.00 sq. mtr.
for LMVs, 65.00 sq. mtr for LCVs and 120.00 sq. mtr. for HMVs/Buses. The Incentive FSI shall be calculated as per the built -up area of the PPL, based on these norms or the actual built-up area of the PPL, whichever is less.
(x) The developer of the public parking lot (PPL) shall pay 'premium', worked out as per the following formula:-
Premium - 40% of [Value of the additional built up area corresponding to the incentive FSI admissible under this Regulation, as per the A.S.R. Prepared by the I.G.R. Maharashtra State - (Cost of construction of PPL + cost of extra ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:39 ::: ssp 7/40 pil-l-133-13j.doc amenities/facilities provided + cost of construction of built-up area corresponding to the incentive F.S.I. admissible under this Regulation)] For the purpose of calculating premium as above, the cost of construction of PPL including amenities / facilities and the cost of construction of built-up area corresponding to the incentive FSI admissible under this Regulation for the financial year 2011-2012 shall be taken as Rs.15,000/- per sq.mtrs and Rs.25,000/-
per sq. mtr. respectively. Revised construction costs shall be notified by the Municipal Commissioner of Municipal Corporation of Greater Mumbai every year in April, based on the average increase in Material Price Index of R.BI. (70% weightage) and Labour Index (CPI)( 30% weightage) during the previous financial year, over the year preceding that.
Provided that all the developments of public parking lots for which letter of intent has been issued by the Corporation as per the DC Regulation 33(24) published ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:39 ::: ssp 8/40 pil-l-133-13j.doc vide Notification dated October 29, 2008, excepting those which have progressed substantially, shall have to follow the provisions of the Regulation 33(24) as amended vide this Notification and shall have to pay the premium at the rate of 50%of what they would have otherwise been required to pay as per the amended provisions.
(xi) The premium shall be paid in two stages - 50% before the issuance of I.O.D. for the PPL and 50% before issuance of C.C. for the Incentive FSI admissible under this Regulation.
Upon payment of 100% premium as aforesaid, C.C. shall be issued in respect of 50% of the incentive FSI.
In no case shall the remaining 50% Incentive FSI be released without the handing over of the public parking lot, complete in all respects, to the Corporation.
The year in which 50% premium is paid ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:39 ::: ssp 9/40 pil-l-133-13j.doc before issuance of I.O.D. for the PPL shall be taken as the year for determination of construction cost as well as ACR for calculation of the premium. Out of the total premium payable, 50% shall be paid to the State Government and the remaining 50% to the Corporation.
(xii) The public parking lots, for which letter of intent has been issued by the Corporation as per the Development Control Regulation 33(24) published, vide Notification dated October 20, 2008, but which have not been handed over to the Corporation, may be allowed to retain FSI as approved prior to the coming into force of this amended Regulation, with prior approval of the State Government, provided they pay premium as per provisions of this amended Regulation for the entire Incentive FSI.
By order and in the name of the Governor of Maharashtra."
(Emphasis added) Thus, by the said notification, a cap was imposed on number of floors of PPL by Sub- Clause ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:39 ::: ssp 10/40 pil-l-133-13j.doc
(viii) which provides that PPL shall be limited to ground plus four floors and three basements.
Clause (vii) provides for payment of premium at the rates specified therein. Thus, while approving the proposed modifications on the basis of the Notification dated 19th March, 2012, modifications were made to Sub-Clause (vii) as notified and Sub- Clause (xii) was added. The first challenge in this PIL is to the said sub-Clause (xii).
7 As per the said Regulation in force prior to 6th January, 2012, while carrying out development, certain common areas were permitted to be excluded from the computation of FSI and were treated as "Free of FSI". Clause 2 of Regulation 35 provided that areas such as sanitary blocks, deck parking, ornamental projection, common areas and amenities should be free of FSI subject to payment of premium. It is pointed out in the petition that apart from the said concession available under Clause 2 of Regulation 35, there were certain concessions granted by the Municipal Commissioner of the Mumbai Municipal Corporation by exercising the power under Clause E of Regulation
64. Now, we come to the notification dated 6 th January, 2012, which incorporated Clause 4 in Regulation 35. Clause 4 and the explanatory notes ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:39 ::: ssp 11/40 pil-l-133-13j.doc appended thereto as provided in the notification dated 6th January 2012 read thus:
"[(4) Compensatory Floor Space Index (FSI)-
Notwithstanding anything contained in the D.C. Regulations 32, 33 & 34, the Commissioner may, by special permission, permit fungible compensatory Floor Space Index, not exceeding 35% for residential development and 20% for Industrial/ Commercial Development, over and above admissible Floor Space Index, by charging a premium at the rate of 60%, 80% and 100 is of the Stamp Duty Ready Reckoner Rate, for Residential, Industrial and Commercial development respectively:
provided in case of redevelopment under regulations 33(7), 33(9) & 33(10) excluding clause No.3.11 of Appendix-IV of Development Control Regulation 1991 the fungible compensatory F.S.I. admissible on rehabilitation component shall be granted without charging premium:
Provided further that redevelopment under D.C. Regulations No.33(5) and redevelopment proposal of existing buildings in suburbs and extended suburbs ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:39 ::: ssp 12/40 pil-l-133-13j.doc by availing TDR, the fungible compensatory F.S.I. admissible on F.S.I. consumed in existing structure shall be granted without charging premium.
Provided further that such fungible compensatory FSI for rehabilitation component shall not be used for free sale component and shall be used to give additional area over and above eligible area to the existing tenants/occupants:
Provided, that this regulation Shall be applicable in respect of the buildings to be constructed or reconstructed only.
Explanatory Note -
(i) Where IOD/IOA has been granted but building is not completed, this regulation shall apply only at the option of owner/developer,
(ii) For plots/layouts, where IOD is granted for partial development, this Regulation will apply for the balance potential of the plot,
(iii) The fungible FSI is useable as regular FSI:
Provided, further the development in ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:39 ::: ssp 13/40 pil-l-133-13j.doc Coastal Regulation Zone (CRZ) area shall be governed by the Ministry of Environment and Forests Notification issued from time to time.
Note.- The premium amount collected shall be kept in a separate Account to be utilized for infrastructure development:"
(Emphasis added) 8 By the second impugned notification which is the subject matter of challenge in this petition the explanatory note (i) to Clause 4 of Regulation 35 of the said Regulations was substituted by another explanatory note. As stated earlier, the challenge is to the said substituted explanatory note (i) which reads thus:
"(i) If an IOD/IOA has already been granted in respect of a building, which is under construction and not complete on the date of coming into force of this regulation, then at the option of the owner/developer, the regulation prevailing prior to 6th January, 2012 shall be applicable to subsequent amendments to the IOD/IOA and to sanctioned plans, to the extent such amendments provide for ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:39 ::: ssp 14/40 pil-l-133-13j.doc additional development in relation to such building, subject to charging premium at the maximum rate charged for approval to lift, Lobby, Staircase by the Municipal Corporation of Greater Mumbai."
SUBMISSIONS OF THE PETITIONER 9 The learned senior counsel appearing for the Petitioner invited our attention to Section 37 of the MRTP Act. He pointed out that the notice dated 19th March, 2012 was issued in exercise of the power conferred by Sub-section (1AA) of Section 37 of the MRTP Act. He invited our attention to Clause (c) of Sub-section (1AA). His submission is that though Clause (c) confers power on the State Government to approve the proposed modification with changes, the changes effected by amending proposed Sub clause (x) of clause 24 of Regulation 33 and by incorporating Sub-clause (xii) in Clause 24 of Regulation 33 are of a drastic nature and, therefore, it was obligatory for the State Government to again notify the said changes and invite objections and suggestions thereto. He invited our attention to Sub-clause (xii) which is impugned in this PIL. He urged that Clause 24 of Regulation 33 was proposed to be amended to ensure that the proposed developer should not take undue ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:39 ::: ssp 15/40 pil-l-133-13j.doc advantage of excessive incentive FSI by constructing PPL consisting of large number of floors. He pointed out that the object was to limit PPL to three basements and ground plus four upper floors. He pointed out that the purport of modified proviso of Sub-clause (x) is that the developers who have obtained letters of intent on the basis of the notification dated 20 th August, 2008 and have not made substantial construction will have to be abide by the modification made to Clause 24 by incorporating the Sub-Clause (viii) which permits construction of three basements and only four upper floors of PPL. He pointed out that under the impugned Sub-Clause (xii), a developer who has obtained a letter of intent on the basis of the notification dated 20th October, 2008 but who has not made any construction or made a construction which cannot be said to be of a substantial nature will be entitled to claim benefit of the letter of intent by constructing any number of floors above 4th floor merely by paying the premium for the entire incentive FSI as per clause 24 as it existed before the impugned Notification. Thus, by incorporating Clause (xii), the very object of amending clause 24 of Regulation 33 of imposing a cap on the number of floors of PPL is completely defeated. He would, therefore, urge ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:39 ::: ssp 16/40 pil-l-133-13j.doc that Clause (xii) is completely arbitrary and violative of Article 14 of the Constitution of India.
10 Inviting our attention to explanatory note (i) appended to clause (4) of Regulation 35 which was initially introduced by the Notification dated 6 th January, 2012, he pointed out that the original explanatory note no. 1 provided that where IOD has been granted but building is not completed, Clause 4 of Regulation 35 will apply only at the option of the owner or developer. He pointed out that the effect of impugned substituted explanatory note no.
(i) is that an option is given to the developers to apply the Regulations prevailing prior to 6th January, 2012 even to the subsequent amendments to the IOD/IOA subject to paying premium at the maximum rate charged for approval to lift, lobby, Staircase by the Municipal Corporation. His case is that the explanatory note no.(i) permits developer to seek amendment to the IOD by providing for additional development and in such a case, an option is given to apply the Regulations prevailing prior to 6th January, 2012. He pointed out that by the Notification dated 6 th January, 2012 a cap of 35% was imposed (on habitable area), as the maximum area that could be claimed by a ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:39 ::: ssp 17/40 pil-l-133-13j.doc developer/owner on account of common areas/ amenities. He would, therefore, urge that the impugned substituted explanatory note no.(i) is completely illegal, irrational and violative of Article 14 of the Constitution of India.
SUBMISSIONS OF THE STATE GOVERNMENT 11 The learned Advocate General representing the State submitted that the said Regulations have been framed as a part of legislative function and the said Regulations is nothing but a subordinate legislation. He urged that the limitations on the power of the Writ Court to interfere while dealing with a challenge to a validity of legislation are well known and interference can be made by the Writ Court on only two grounds (i) lack of legislative competence and/or (ii) the legislations being made in contravention of the provisions of the Constitution of India. He placed reliance on the decision of the Apex Court in the Case of Hinsa Virodhak Sangh V/s. Mirzapur Moti Kuresh Jamat and Others1. He relied upon what is held by the Apex Court in the well known decision in the case of Government of Andhra Pradhesh and Others Vs. P. Laxmi Devi2. He submitted that as held by the Apex Court in paragraph 80 of the said decision, this 1 (2008) 5 SCC 33 2 (2008) 4 SCC 720 ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:39 ::: ssp 18/40 pil-l-133-13j.doc Court will have to observe a judicial restraint, as the legislation impugned is in a sense an economic legislation and, therefore, greater latitude must be given to the legislature.
12 The learned Advocate General submitted that it is only when there is a clear violation of a constitutional provision (or of the parent statute, in the case of a delegated legislation) beyond reasonable doubt that the writ Court should declare it to be unconstitutional. He pointed out that under clause (c) of the sub-section (1AA) of Section 37, there is a power vesting in the Government to modify the proposed modifications as notified while sanctioning the same. He invited our attention to proviso to sub-Clause (x) of Clause 24 of Regulation as modified and submitted that there is only a slight difference between sub- Clause (xii) as introduced and the proviso to sub- Clause (x). He submitted that the modification by incorporating the clause (xii) was made in exercise of the power vesting in clause (c) of sub-section (1AA) of Section 37. He urged that there is nothing arbitrary and the said Sub-Clause has been introduced to remove the ambiguity of the phrase 'progressed substantially', which is a part of clause (x). He pointed out that clause (x) ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:39 ::: ssp 19/40 pil-l-133-13j.doc provides for payment of 50% of the premium as per the amended Regulations, but the impugned Sub-
Clause (xii) provides for the payment of 100% premium as per the amended Regulations. He urged that as clause (xii) is relatable to a policy, there is no violation of any fundamental right.
Dealing with the submission that clause (xii) gives absolute discretion and unbridled power to the State Government, he urged that no Government or public authority has the right to do whatever it pleases and there is nothing like unfettered discretion. Relying upon the recent decision of the Apex Court in case of Rajbala and Others Vs. State of Haryana and Others 3, he urged that even assuming that Clause (xii) is arbitrary, only on that ground, the same cannot be declared as unconstitutional. He also refuted the challenge on the ground that there is a violation of Section 51 of the Maharashtra Regional and Town Planning Act, 1966 by clause (x) or (xii). He urged that clause
(xii) deals with payment of premium. It is a fiscal statute and cannot be termed as arbitrary.
13 As far as the challenge to the substituted explanatory note (i) to DCR 34(4) is concerned, he urged that it is merely clarificatory in nature.
3 Writ Petition (Civil) No.671 of 2015 decided on 10 December 2015
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He submitted that it clarifies the position as regards the constructions in progress on the basis of IOD granted prior to 6 January 2012 and the subsequent amendments to the said IOD. He submitted that explanatory note (i) seeks to protect the buildings which had IODs as well as the buildings which are under construction and thus IODs can be amended for permitting the additional constructions. He urged that the said explanatory note creates class within a class. He submitted that objection seems to be to give a protection to the class of the buildings under construction, where IODs were granted before the cutoff date. He submitted that the classification made has a rational nexus with the object sought to be achieved. Relying upon a decision of the Apex Court in the case of Kerala Hotel And Restaurant Association And Others Vs. State of Kerala And Others4, he would urge that even assuming that there is a possibility of abuse of statutory provisions, the same does not make it ultra vires or unconstitutional. The learned Senior Counsel appearing for the Respondent No.2-Municipal Corporation of Greater Mumbai supported the submissions made by the learned Advocate General appearing for the Respondent No.1-State.
4 (1990) 2 Supreme Court Cases 502
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CONSIDERATION OF SUBMISSIONS
14 We have given careful consideration to the
submissions. As far as the scope of interference is concerned, a reference will have to made to the decision of the Apex Court in case of Hinsa Virodhak Sangh Vs. Mirzapur Moti Kuresh Jaman (supra). In paragraph-39 the Apex Court has held thus:
"We have recently held in Govt. of A.P. v. P. Laxmi Devi, that the court should exercise judicial restraint while judging the constitutional validity of statutes. In our opinion, the same principle also applies when judging the constitutional validity of delegated legislation and here also there should be judicial restraint.
There is a presumption in favour of the constitutionality of statutes as well as delegated legislation, and it is only when there is a clear violation of a constitutional provision (or of the parent statute, in the case of delegated legislation) beyond reasonable ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:40 ::: ssp 22/40 pil-l-133-13j.doc doubt that the court should declare it to be unconstitutional."
(emphasis added) 15 While relying upon the said decision, the learned Advocate General has submitted that it is always open for the Court to read down the provisions, so that it is not exposed to the vice of being ulra vires. The law laid down by the Apex Court is that only in case of a violation of a constitutional provision (or of the parent statute, in the case of a delegated legislation) beyond a reasonable doubt that the Court should declare it to be unconstitutional. We may also make a reference to the decision of the Government of Andhra Pradesh and Others V. P. Laxmi Devi (Smt) (supra). Paragraphs 77 and 80 reads thus:
"77. However, though while considering economic or most other legislation the court gives great latitude to the legislature when adjudging its constitutionality, a very different approach has to be adopted by the court when the question of civil liberties and the fundamental rights under Part II of ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:40 ::: ssp 23/40 pil-l-133-13j.doc the Constitution arise."
(xiii) However, we find no paradox at all. As regards economic and other regulatory legislation judicial restraint must be observed by the court and greater latitude must be given to the legislature while adjudging the constitutionality of the statute because the court does not consist of economic or administrative experts. It has no expertise in these matters, and in this age of specialisation when policies have to be laid down with great care after consulting the specialists in the field, it will be wholly unwise for the court to encroach into the domain of the executive or legislative (sic legislature) and try to enforce its own views and perceptions."
(Emphasis added) 16 There cannot be any doubt that the constraints as observed by the Apex Court in paragraph-80 of the said decision will have to be kept in mind while dealing with the impugned ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:40 ::: ssp 24/40 pil-l-133-13j.doc challenges.
CONSIDERATION OF CHALLENGE TO SUB CLAUSE (xii) OF CLAUSE (24) OF REGULATION 33 17 Now, we turn to the first challenge to the Sub-Clause (xii) of Clause (24) of Regulation 33 made vide Notification dated 6 August 2014. Before we deal with the impugned Clause (xii), we must note here that Clause (24) of Regulation 33 of the DCR was brought into force by a Notification dated 20th October 2008. It provided for the grant of incentive FSI (as additional FSI to be used on the same property) equivalent to the area of PPL constructed by the owner/developer and handed over free of cost to the said Municipal Corporation. We may note here that as per the said Notification, there was no upper cap on the number of floors which could be constructed under a PPL for which the benefit of the incentive FSI could be taken.
Thus, incentive FSI was available for any number of floors of PPL. On 22nd June 2011 (Exhibit 'K' to the Petition), the State Government issued a Circular. The Circular provided that the height of the PPL will be limited to ground plus four floors and three basements. The Circular also introduced the requirement of the developer of PPL paying ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:40 ::: ssp 25/40 pil-l-133-13j.doc premium as per the formula laid down therein. It is not necessary for us to go into legality and validity of the said circular. On 19 March 2012, the State Government exercised power under clause
(a) of sub-section (1AA) of Section 37 of the Maharashtra Regional and Town Planning Act, 1966 and issued a notification incorporating the proposed modifications. We have already quoted relevant part of the proposed modifications of clause (24) of Regulation 33 incorporated in the said Notification. It was provided therein that PPL can consist only of ground plus four Floors and three basements. The proposed modification also provided for payment of premium as per the formula provided under the Sub-clause (ix). Clause (x) as proposed provided for the cap on built up area of PPL for different categories of vehicles. The basic object of the proposed modification seems to be to impose a cap on number of floors of PPL so that a developer or owner is not entitled to incentive FSI of unlimited number of floors of PPL. The second object appears to be to impose a condition of payment of premium as a condition precedent for grant of incentive FSI in respect of the area covered by PPL. The second part of Clause
(x) as set out in the said Notification provided that all the developments of PPL which have been ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:40 ::: ssp 26/40 pil-l-133-13j.doc given permission as per the Notification dated 20th October 2008, except those which have progressed substantially, will have to follow the regime of the amended Clause (24) of the Regulation 33 and will have to pay the premium equivalent of 50% of the premium provided under Sub-Clause (ix).
18 Now, we make may make a reference to Sub- Clause (xii) of Clause 24 which is the subject matter of challenge in the present petition as well as to the proviso to Clause (x) which became a part of Regulation 33 by virtue of the notification dated 6th August 2014. Firstly, we must refer to the proviso to Clause (x) incorporated by the Notification dated 6th August 2014. We have already quoted the said proviso. The proviso to Sub-Clause (x) is applicable to all the developments of PPL for which a Letter of Intent was issued as per the Notification dated 20th October 2008, but where there was no substantial progress made in the construction till 6th August 2014. Thus, the proviso is not applicable to the cases, where PPL is permitted as per the Notification dated 20th October 2008 before the impugned amendment, but where a substantial progress has been made in the construction of PPL. The meaning of the proviso is that where a ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:40 ::: ssp 27/40 pil-l-133-13j.doc permission to construct PPL has been granted as per the Notification dated 20th October 2008 before the date of the impugned amendment and where there is no substantial progress in the construction of the PPL, the developer will have to follow the provisions of Clause (24) of the Regulation 33 as amended by the said Notification dated 6 August 2014. Thus, there will be a cap on the construction of the number floors of PPL as per added Sub-Clause
(viii). However, in such case, the developer will get a concession in the premium as he will be required to pay 50% of the premium which would have been required to be paid as per the amended provisions. The implication of the said provision is that all such cases where PPL was granted permission under the Notification dated 20th October 2008 before the date of the impugned modification and where no substantial progress has been made in construction, will be governed by the new regime. In such cases, though a permission is granted earlier, the construction could be made limited to ground plus four floors. Thus, the developer will be entitled to benefit of the incentive FSI for the upper floors limited to ground plus four floors. Therefore, the effect of the proviso to Sub-Clause (x) is that the permissions to construct the PPLs which are granted ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:40 ::: ssp 28/40 pil-l-133-13j.doc after 20th October 2008 but before 6th August 2014, will virtually stand amended in case those projects where the construction has not made substantial progress. Now, we turn to Clause (xii). As proviso to Clause (x) is applicable to the cases where the permissions have been granted vide Notification dated 20th October 2008 but before 6 August 2014 and where no such substantial progress has been made as of 6th August 2014, it follows that Clause
(xii) cannot apply to such cases. We must note here that Clause (xii) uses words "but which have not been handed over to the Corporation". As stated earlier, proviso to Clause (x) is not applicable to those cases where there is a substantial progress been made in the construction of PPL on the basis of permission granted on the basis of the Notification dated 20th October 2008.
Thus, it follows that cases, which are not covered by the said proviso to Clause (x) namely, where the construction has substantially progressed as on the date of the impugned notification dated 6 th August 2014 will be governed by Clause (xii).
19 The proviso to Clause (x) uses the words `excepting those which have progressed substantially'. Therefore, the cases which are covered by proviso to Clause (x) are those where ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:40 ::: ssp 29/40 pil-l-133-13j.doc permissions to construct PPL have been granted prior to 6th August 2014, but there is no substantial progress in construction as on 6th August 2014. In this category of cases, the amended Regulations providing for construction of maximum ground and four upper floors will apply, but there will be a concession to pay only 50% of the premium payable as per the amended Regulations. The impugned clause (xii) will apply to those cases where permissions have been granted prior to 6 th August 2014 but the possession of the PPL has not been handed over to the Corporation though a substantial progress has been made in construction as of 6th August 2014 or though construction has been completed before the said date. Such constructions of PPL may be allowed to be retained by the Municipal Corporation with the prior approval the State Government subject to payment of 100% premium as provided in the amended Regulations. We may also note here that Clause
(xii) provides that may be allowed to retain FSI as approved prior to the coming into force of this amended Regulation, with prior approval of the State Government, provided they pay premium as per the provisions of this amended regulation for the entire incentive FSI. The use of the word may is important which indicates that the State Government ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:40 ::: ssp 30/40 pil-l-133-13j.doc has a discretion to grant or refuse prior approval. As contended by the learned Advocate General, the State is governed by rule of law, therefore, while granting approval, the State will have to consider relevant factors. The State will have to consider whether substantial progress has made on the basis of earlier permission by lawfully carrying on construction. The State Government will have to consider whether the construction has been completed substantially on the basis of a valid development ig permission and commencement certificate. These are few illustrations of the factors to be considered.
20 We may may refer to the decision of the Apex Court in case of Reserve Bank of India Vs. Peerless General Finance And Investment Co. Ltd and Others3, in particular paragraph-33. The Apex Court observed that "interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted". This decision was considered by the Apex Court in the subsequent case of Special Land Acquisition Officer Vs. Karigowda and Another4. Paragraphs 30 and 31 of the said decision reads 3 (1987) 1 Supreme Court Cases 424 4 (2010) 5 Supreme Court Cases 708 ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:40 ::: ssp 31/40 pil-l-133-13j.doc thus:
"30. At the cost of some repetition, we may notice that the provisions of Section 23 and 24 of the Act have been enacted by the legislature with certain objects in mind. The intention of the legislature is an important factor in relation to interpretation of statutes. The statute law and the case law go side by side and quite often the relationship between them is supplementary. In other words, interpretation is guided by the spirit of the enactment.
Interpretation can be literal or functional. Literal interpretation would not look beyond litera legis, while functional interpretation may make some deviation to the letter of the law. Unless the law is logically defective and suffers from conceptual and inherent ambiguity, it should be given its literal meaning. Where the law suffers from ambiguity, it is said: (Peerless ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:40 ::: ssp 32/40 pil-l-133-13j.doc General Finance case, SSC p.450, para 33) "33. Interpretation must depend on the text and the context. They are the bases of interpretation.
One may well say that if the text is the texture, context is what gives the colour. Neither can be ignored.
Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted."
31. The principle of construction of law is stated by Holmes, J. as under:
"You construe a particular clause or expression by construing the whole instrument and any dominant purposes that it may express. In fact, intention is a residuary clause intended to gather up whatever other aids there may be no ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:40 ::: ssp 33/40 pil-l-133-13j.doc interpretation besides the particular words and the dictionary." (Principles of Statutory Interpretation by Justice G.P. Singh, p 15, 9th Edn., 2004, Wadhwa & Co., Nagpur)."
21 The textual interpretation of clauses (x) and (xii) which we have made matches the contextual. In the light of what we have observed above, we fail to understand as to how the clause
(xii) will defeat the object of the amendments made under the notification dated 6 August 2014. It only deals with those cases where a Letter of Intent was issues prior to the date of the said notification and where the work of construction of PPL has been either fully completed or substantially completed as on 6th August 2014. Clause (xii) confers discretion on the State Government whether to grant prior approval or not for retaining the construction. Only with such prior approval of the State Government that a developer will be allowed to get full incentive FSI as per the unamended Regulationss. We have already observed that while granting prior approval, the State Government will have to take into consideration all the relevant factors. Moreover, ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:40 ::: ssp 34/40 pil-l-133-13j.doc 100% premium is payable as per the amended Regulations. Therefore, we do not agree with the submission made by the learned senior counsel for the Petitioner that clause (xii) is arbitrary and violative under Article 14 of Constitution of India. There is nothing arbitrary about creation of a separate class of cases where substantial construction is carried out with a view to avoid hardship to the developer. Moreover, the power conferred on the State Government of granting prior approval is not unrestricted or blanket power.
Therefore, subject to interpretation of the said clause made in this Judgment, we see no merit in the challenge to the validity of clause (xii). We clarify that all other cases where permissions to construct PPL have been granted prior to 6th April 2014 where there is no substantial construction carried out will be governed by the regime of the amended Regulations as provided in the proviso to clause (x).
CONSIDERATION OF CHALLENGE TO THE EXPLANATORY NOTE NO.(i) IN CLAUSE 4 OF REGULATION 35 22 Now we turn to the second limb of challenge in this PIL. As stated earlier, the challenge is to the Explanatory Note No.(i) which is incorporated ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:40 ::: ssp 35/40 pil-l-133-13j.doc in clause 4 of Regulation 35. Clause 4 of Regulation 35 was added by the notification dated 6th January 2012. Regulation 35 deals with grant of fungible FSI not exceeding 35% for residential development and 20% for commercial development over and above admissible FSI subject to payment of premium as provided therein. What is provided by clause 4 of Regulation 35 is already quoted in the earlier part of this Judgment. The Explanatory Note No. (i) prior to the impugned amendment provided that where IOD/IOA has been granted but the building is not completed, added clause 4 will apply only at the option of the owner/developer.
The clause 4 was added on 6th January 2012.
23 In the light of this, now we may consider the impugned Explanatory Note No.(i) which is incorporated by way of amendment by the notification dated 21st May 2015. It provides that in case of a building under construction where IOD or IOA has been already granted but the building is not completed as on 21st May 2015, at the option of developer or owner, the Regulations prevailing prior to 6th January 2012 shall be applicable. This part was already incorporated in the earlier Explanatory Note No.(i). What is additionally provided by the amended Explanatory Note is that in ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:40 ::: ssp 36/40 pil-l-133-13j.doc case of such IOD/IOA, if subsequent amendment is made by amending the sanctioned building plans, to the extent such amendments provide for additional development in relation to the said building, at the option of the owner/developer the Regulations prevailing prior to 6th January 2012 shall be applicable to the subsequent amendment subject to charging premium at the maximum rate charged for approval to lift, lobby and staircase by the Municipal Corporation. Clause 4 provides for grant of additional fungible FSI. The main submission of the learned senior counsel appearing for the PIL Petitioner was that if subsequent amendments are made to the IOD after 6th January 2012, the amended Regulation brought into force on 6th January 2012 must apply and to such amended IOD/sanctioned plan, unamended Regulation as it existed prior to 6 th January 2012 cannot be permitted to apply. If amended Explanatory Note No. (i) is perused, it becomes crystal clear that it will apply subject to the following conditions:-
(I) IOD/IOA has been granted prior to 6 th January 2012;
(II) Construction of the building on the basis of the IOD is not completed on 21ST May 2015;
(III) The IOD or sanctioned plan are amended
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subsequent to 6th January 2012; and (IV) Premium at maximum rate as per the amended provisions is paid.
24 Thus, the substituted Explanatory Note (I) seeks to protect cases where IOD is granted prior to 6th January 2012 and is amended but the construction is not completed. There is nothing arbitrary about creation of this class within a class of buildings where IOD has been granted prior to 6th January 2012.
25 There is another aspect of the matter.
Explanatory Note No. (i) refers to subsequent amendments of the IOD/IOA which are made after 6th January 2012. To enable the owner or developer to start development work, apart from obtaining IOD under the provisions of the Mumbai Municipal Corporation Act, 1888, the developer/owner is also required to obtain development permission under the Maharashtra Regional and Town Planning Act, 1966 as well as a commencement certificate under Regulation 4 of the said Regulations. The development permission granted under section 45 of the MRTP Act can remain valid only for a period of three years. As far as commencement certificate issued under the said Regulation is concerned, clause 6 of the ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:40 ::: ssp 38/40 pil-l-133-13j.doc Regulation 5 provides that Commencement Certificate/Development permission issued under the said Regulation shall remain valid for 4 years in aggregate but shall have to be renewed before expiry of one year from the date of its issue. It provides that such renewal can be of one year each and after three consecutive renewals; a proposal shall be submitted to obtain development permission a fresh. Thus, it follows that IOD and the sanctioned plan approved by the IOD can be amended provided the Commencement Certificate/development permission is valid. If the Commencement Certificate or Development Permission has expired in terms of section 48 of the MRTP Act or clause 6 of Regulation 5 of the said Regulations, obviously IOD cannot be renewed. A proposal for grant of permission afresh will have to be submitted in such cases which will be governed by the amended Regulations. The Explanatory Note (i), therefore refers to IOD or IOA which is granted prior to 6 th January 2012 which could be lawfully amended. As stated earlier, amendment to the sanctioned plan and IOD can be validly made only so long as Commencement Certificate and development permission are valid. In case of those development permissions/ Commencement Certificates which have expired after three consecutive yearly renewals, ::: Uploaded on - 30/04/2016 ::: Downloaded on - 31/07/2016 03:45:40 ::: ssp 39/40 pil-l-133-13j.doc there is no question of making any amendment to the IOD or IOA.
26 In view of what we have held above, we fail to understand as to how the Explanatory Note No. (i) is violative of any provisions of the Constitution of India. It will apply to a very limited number of cases. Even assuming that some arbitrariness is shown, as held by the Apex Court in the case of Rajbala and others Vs. State of Haryana and others, arbitrariness is no ground to invalidate a statutory provision.
27 As far as the argument of possible misuse and abuse is concerned, the law is well settled. Some possibility or a distinct possibility of abuse does not make a law ultra vires or unconstitutional.
Hence, we find nothing illegal or unconstitutional about the said Explanatory Note No. (i).
28 Therefore, subject to observations made above and subject to the interpretation of sub-clauses
(x) and (xii) of Clause 24 of the Regulation 33 made by us, there is no merit in the challenge in this PIL.
29 Subject to what is observed above, PIL is
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rejected. Rule is discharged with no order as to costs. Pending Chamber Summons does not survive and the same is disposed of.
(C.V.BHADANG,J.) (A.S.OKA,J.)
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