Bombay High Court
Deekay Realtors Pvt. Ltd. And Anr vs Municipal Corporation Of Greater on 10 January, 2012
Bench: S. A. Bobde, Mridula Bhatkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1708 OF 2011
1. Deekay Realtors Pvt. Ltd. And anr. .. Petitioners
Vs.
1. Municipal Corporation of Greater
Mumbai and ors. .. Respondents
Mr. P. K. Dhakephalkar, Senior Advocate a/w Mr. Yadunath Choudhari i/by
Mr. Omkar Kulkarni for petitioners.
Ms. Vidya Gharpure for BMC.
CORAM: S. A. BOBDE &
MRS. MRIDULA BHATKAR, JJ.
JANUARY 10, 2012.
ORAL ORDER {per S.A. Bobde, J.} :
1. Rule, returnable forthwith. Ms. Vidya Gharpure waives service for BMC. Heard finally by consent of the parties.
2. The petitioners have challenged the stop work notice issued by the respondent - Corporation in respect of the construction made by the ::: Downloaded on - 09/06/2013 18:04:03 ::: 2 oswp-1708-11 petitioner in Khotachi Wadi, Girgaum. The undisputed facts are that petitioners are the owners of land bearing City Survey Nos. 577, 566 & 576 at Khotachi Wadi, Girgaum. The said property falls within the Heritage List Precinct Grade-III. The petitioners submitted a proposal for demolition and construction over these areas. The respondent -
Corporation gave an IOD on 28/6/2006 and a Commencement Certificate on 3/8/2006. Acting thereon, the petitioners demolished the original building standing on Survey No. 566 and have constructed upto seven stories. Thereafter they sought to amalgamate Survey No.566 with Survey Nos.577 & 576 and applied for and were granted a composite NOC. The Municipal Commissioner approved the amalgamation on 16/10/2010 for construction of ground+18 storeyed structure.
3. Apparently, the Municipal Commissioner issued stop work notice on 1/12/2010 in respect of the petitioners' structure and three other properties in the same area. The petitioners made a representation against the stop work notice. For no acceptable reason, the Municipal Commissioner has withdrawn the stop work notice in respect of three other properties and has maintained the stop work notice in respect of the petitioners property only. The petitioners have approached this court ::: Downloaded on - 09/06/2013 18:04:03 ::: 3 oswp-1708-11 against the said stop work notice and the refusal to withdraw the said stop work notice.
4. Mr. Dhakephalkar, the learned Senior Counsel for the petitioners submitted that the petitioners started the work of demolition of the existing old structure on the property and made new construction on the property complying with all the requirements of law. They obtained a permission under Regulation 67.2 of the Development Control Rules which deal with heritage structures and the sanction to construct by way of IOD and also a Commencement Certificate. According to the learned counsel, therefore, any construction being carried out under such permissions granted by the appropriate authority, could not have been stopped by mere stop work notice without assigning a good reason in law. Further, it was contended by the learned counsel that the respondent has acted arbitrarily and with favourtism by withdrawing the stop work notice in respect of three other similarly situated properties in the same area.
5. We find that the stop work notice dated 1/12/2010 gives no reason whatsoever why the petitioners' structure has become unauthorised or illegal, but simply directs the petitioner not to demolish any existing ::: Downloaded on - 09/06/2013 18:04:03 ::: 4 oswp-1708-11 structure "till the issue of heritage precinct is resolved". The confirmation of the said stop work notice states that Khotachi Wadi is declared as Heritage Precinct and it is necessary to comply with Regulation 67.7 which deals with maintaining sky line and reads as follows:-
"67.7 Maintaining Sky Line:- Buildings included in Listed Heritage Precincts shall maintain the sky line in the precinct (without any high-rise development) as may be existing in the surrounding area, so as not to diminish or destroy the value and beauty of the said listed Heritage buildings/Heritage precincts.
The development within the precinct shall be in accordance with the guidelines framed by the Commissioner in consultation with Heritage Conservation Committee."
6. It was also contended by Mr. Dhakephalkar that the stop work notice is vitiated by mala fides in law having been issued at the instance of a local MLA, who is not a party to the petition and who apparently complained to the Municipal Commissioner. According to Mr. Dhakephalkar, the complaint was made in respect of the four properties and there is no reason why stop work notice has been lifted in respect of other three properties and continued only in respect of the petitioners' property.
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7. Having considered the matter, we find that the stop work notice does not give sufficient reasons in law for stopping the work in respect of the petitioners' property only. It is not disputed that even as regards the other properties for which the stop work notices were issued also contained Grade-III heritage structures were demolished and reconstruction has been allowed and has been done. It is not the case of the respondents that re-development of Grade - III heritage structure is impermissible and that permission was not granted in this case. It is difficult to comprehend that why the petitioners' property has been singled out. Independently, there seems to be no reason why the stop work notice has been issued after the petitioners obtained all the necessary permissions and sanctions for demolition and reconstruction in the said property. In the affidavit-in-reply, the reason given seems to be that after the Municipal Commissioner inspected the site on 18/11/2011 i.e. much after the construction and had proceeded to the extent of seven stories, "it was decided" that a note be sent to the Government of Maharashtra for elaborating the aspect of re-development of Khotachi Wadi. There is no elaboration whatsoever of the contents of the note which make the construction undertaken by the petitioner illegal. It may be noted that there is no action taken by the Municipal Corporation for either withdrawing the ::: Downloaded on - 09/06/2013 18:04:03 ::: 6 oswp-1708-11 sanction for construction or cancelling the IOD. It is further stated in paragraph 5 of the affidavit that for the re-development of structure, the Municipal Commissioner "intends" to formulate norms to maintain sky line above 24 meters in the heritage precinct. There is no whisper about what norms are proposed to be formulated and how the construction being carried out by the petitioners would be contrary to the said norms. In any case, we are clearly of the view that an existing activity duly sanctioned by law cannot be considered to be illegal on the basis of intended or proposed norms which have no existence and have obviously not come into force.
8. In the affidavit-in-reply, as regards attempt to explain why stop work notice has been withdrawn in respect of other three properties, it is curiously stated on oath that the stop work notice issued to the petitioners has not been withdrawn, as in the case of other three properties, because "the petitioners had filed the present petition and the matter is subjudice".
From the affidavit-in-reply it appears that sky line in respect of other three properties and the petitioners' structure is similar and that all the structures are higher than 24 meters. It is not in dispute that all the properties are in the same area.
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9. Having regard to the nature of the activity of building construction which affects housing and large investments and it appears highly arbitrary and unreasonable if re-development, which is being carried on in accordance with law, is stopped for no reason in presentii but an `intended' legislation and that too selectively. A stop work notice can certainly be issued on the basis of apprehended prima facie illegalities or imminent danger due to construction but certainly not for intended steps, not yet taken and which may not become law.
10. Having regard to the circumstances of the case, we are of the view that the impugned order is vitiated by mala fides in law. In the case of Smt. S.R. Venkataraman vs. Union of India and anr. [AIR 1979 SC 49], the Supreme Court observed as follows:-
"7. The principle which is applicable in such cases has thus been stated by Lord Esher M. R. in The Queen on the Prosecution of Richard Westbrook vs. The Vestry of St. Pancras, (1890) 24 QBD 371 at p. 375:-
"If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the ::: Downloaded on - 09/06/2013 18:04:03 ::: 8 oswp-1708-11 guidance of their discretion, then in the eye of the law they have not exercised their discretion."
This view has been followed in Sedler v. Sheffield Corporation, (1924) 1 Ch 483.
8. We are in agreement with this view. It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-
existing fact or circumstance. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go, these may well be said to run into one another.
9. The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. ......."
In a subsequent case M.P. State Co-op. Dairy Federation Ltd. and anr. vs. Rajnesh Kumar Jamindar and ors. [(2009) 15 SCC 221], the Supreme Court observed as follows:-
"The power of judicial review of a superior court although a restricted one, has many facets. Its jurisdiction is not only ::: Downloaded on - 09/06/2013 18:04:03 ::: 9 oswp-1708-11 limited in the cases where the administrative orders are perverse or arbitrary but also in the cases where a statutory authority has failed to perform its statutory duty in accordance with law. An order which is passed for unauthorized purpose would attract the principles of malice in law...."
11. The present action is thus vitiated by mala fides in law. In the circumstances, we are of the view that the petition should succeed. Rule is made absolute in terms of prayer clauses (a) and (b) which read as follows, with no order as to costs:-
"(a) To issue a Writ of Certiorari or a Writ in the nature of Certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India calling for the records, papers and proceedings in respect of that the said case and the order dated 27th July 2011 (Exhibit "M") and after examining the records, papers and proceedings, legality and validity thereof, be pleased to quash and set aside the same.
(b) To issue a Writ of Certiorari or a Writ in the nature of Certiorari or any other appropriate writ, order or direction ::: Downloaded on - 09/06/2013 18:04:03 ::: 10 oswp-1708-11 under Article 226 of the Constitution of India calling for the records, papers and proceedings in respect of that the said case i.e. the Stop Work Notice bearing No. BPC/9714/DA/1/12/2010 dated 1st December, 2010 (Exhibit "K" hereto) and after examining the records, papers and proceedings, legality and validity thereof, be pleased to quash and set aside the said Stop Work Notice bearing No.BPC/9714/DA/1/12/2010 ig dated 1st December, 2010 (Exhibit "K" hereto)".
(MRS. MRIDULA BHATKAR,J.) (S. A. BOBDE, J.)
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