Bombay High Court
Federation Of Churchgate Residents vs The Municipal Corporation Of Greater on 14 March, 2014
Author: M. S. Sanklecha
Bench: Mohit S. Shah, M.S.Sanklecha
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO.54 OF 2012
1 Federation of Churchgate Residents ]
a company duly incorporated under ]
Section 25 of the Companies Act, 1956 ]
with its registered office at 619-620, ]
Tulsiani Chambers, Nariman Point, ]
Mumbai 400 021. ]
2 Shri Ashok Rao of Mumbai Indian ]
Inhabitant, age 65 years, Occ: Chartered ]
Accountant, having his office at ]
619-620, Tulsiani Chambers, Nariman
Point, Mumbai 40 021.
]
]
3 Citispace registered Trust, having its ]
rd
address at 3 floor, Cecil Court, ]
Mahakavi Bhushan Marg, Colaba, ]
Mumbai 400 005. ]
4 Oval Cooperage Residents Association ]
having its address at C/o. 3C, Empress ]
Court,142, M.Karve Marg, Mumbai 400020.]
5 Nariman Point Churchgate Citizens ]
Welfare Trust, a registered trust having ]
its address at 3, Commonwealth Building, ]
United Coop. Hsg. Society Ltd. Madame ]
Cama Road, Mumbai 400 021. ] .. Petitioners.
V/s.
1 The Municipal Corporation of Greater ]
Mumbai, a body constituted under the ]
provisions of the Mumbai Municipal ]
Corporation Act, 1888 having its head ]
office at Mahapalika Marg,Mumbai 400 001]
2 The State of Maharashtra through ]
(I) The Secretary, Environment Dept. ]
(II)The Secretary, Urban Development ]
Dept., and (III) The Secretary, Revenue ]
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Forest Dept., Government of Maharashtra ]
Mantralaya, Mumbai 400 032. ]
3 The Maharashtra Coastal Zone Management]
Authority, through their Member Secretary ]
(MCZMA) Environment Dept., Room No. ]
217(Annex), Mantralaya, Mumbai 400 032.]
4 Union of India, through the Secretary, ]
Government of India, Ministry of ]
Environment and Forests, Paryavaran ]
Bhavan, C.G.O. Complex, Lodhi Road, ]
New Delhi. ]
5 The Chief Architect, Maharashtra State, ]
PWD, 25, Marzban Road, Fort, ]
Mumbai 400 001. ]
6 Vasant Sagar Properties Pvt. Ltd. a
ig ]
Private limited company duly incorporated ]
under the provisions of the Companies Act ]
with its registered office at Continental ]
Building, 135, Dr. A. B. Road, Worli, ]
Mumbai 400 016. ] .. Respondents.
Mr. Aspi Chinoy, Sr. Advocate with Mr. Rahul Hakani i/b. K. J. Hakani, for
the Petitioners.
Mr. Darius J. Khambatta, Advocate General with Mr. J. S. Saluja, AGP, for
Respondent-State.
Mr. V. A. Thorat, Sr. Advocate with Ms. Sharmila Modle, for Respondent-
BMC.
Mr. Harish Salve, Sr. Advocate with Mr. Ravi Kadam, Sr. Advocate, Mr.
Cyrus Ardeshir, Ms. Gayatri Goswami, Mr. Rahul Dwarkadas, Mr. Kingshuk
Banerjee and Mr. Yuvraj Choksy i/b. Wadia Ghandy & Co., for Respondent
No.6.
Mr. Parag Vyas, for Respondent - Union of India.
CORAM: MOHIT S. SHAH, C.J. &
M.S.SANKLECHA,J.
RESERVED ON : 17 DECEMBER 2013.
PRONOUNCED ON : 14 MARCH 2014.
JUDGMENT (Per M. S. Sanklecha. J.):-
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By this Public Interest Litigation, petitioners are essentially challenging the permission granted on 12 April 2012 by the Municipal Commissioner( herein after referred to as 'erstwhile Commissioner') of Municipal Corporation of Greater Mumbai (herein after referred to as Corporation) to respondent No.6 namely - Vasant Sagar Properties Pvt. Ltd. (herein after referred to as Vasant Sagar) to construct a building on its property situated in 'A' ward bearing plot No.11, C. S. No.1689 of Fort Division at 'A' Road, Off Marine Drive, Mumbai 400 020 (herein after referred to as the said property) with the height of 58 meters. The impugned permission dated 12 April 2012 was granted in terms of Regulation 67(2)(iii)(b) of the Development Control Regulation for Greater Mumbai, 1991 (DCR 1991) which allows reconstruction of a Building with a height in excess of 24 meters (excluding height of stilt on the ground floor) with special permission of the Commissioner.
2 Briefly, the facts leading to this PIL are :-
(i) In 1940, a building consisting of ground and five upper floors constructed thereon was leased by the State Government to one Visonji Rustonsey for a period of 99 years. On 26 February 1987, the said property along with the building thereon was purchased by Vasant Sagar (a part of the Zee group);
(ii) On 19 February 1991, the Central Government issued the Coastal Regulation Zone ( herein after referred to as CRZ ) Notification 1991. The said property falls within the CRZ- II. At that time, the said property was governed by Development Control Regulation for Greater Mumbai, 1967 ( herein after referred to as DCR 1967). Thereafter, on 20 March 1991, the S.R.JOSHI 3 of 33 ::: Downloaded on - 29/03/2014 18:57:09 ::: pil-54-2012-judgment.sxw DCR 1991 was issued;
(iii) On 21 April 1995, Regulation 67 was introduced into DCR 1991. At that time it was felt necessary to impose certain additional restrictions for height of Buildings in 'A' ward. Therefore, on 25 April 1995, the State Government in exercise of its powers under Section 37 (1) of the Maharashtra Regional Town Planning Act 1966 (herein after referred to as MRTP Act) issued directions to the Planning Authority viz. Corporation. The aforesaid communication directed the Corporation that the following restrictions shall have force of additional Regulation to DCR 1991 and the relevant part thereof reads as under:-
" Height of the Building in 'A' ward:
Notwithstanding anything contained in the Development Control Regulations 1991, for Greater Mumbai, in A Ward (exclusive of Backbay Reclamation Blocks where BMRDA is Special Planning Authority) the height of the buildings after reconstruction shall be limited to the existing height of the buildings of similar age in the surrounding area."
(iv) On 26 April 1995, the State Government issued a Memorandum in exercise of its power under Section 154(1) of the MRTP Act making the above directives issued on 25 April 1995 under Section 137 of the MRTP Act with regard to height of buildings in 'A' ward applicable with immediate effect. This was issued to ensure efficient administration by providing for uniformity of treatment amongst all buildings being reconstructed in 'A' ward of Mumbai.;
(v) A Committee constituted by the State Government under the
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Chairmanship of Shri D. M. Sukthankar, suggested measures for speedy repairs and re-construction of old and dilapidated cessed building. In light of the suggestions of the above Committee, the State Government in exercise of its power under Section 37 (2) of the MRTP Act on 25 January 1999 introduced the following sub-
clause (iii) into Regulation 67(2) of the DCR 1991. The sub-clause
(iii) reads as under:-
"(iii)(a) Provisions of Regulation 67 would be applicable only in Grade I and Grade II category of Heritage Building for re-construction and re-development of old buildings undertaken under Regulation 33(7), 33(8) and 33(9) of these Regulations;
(b) In case of re-development of cessed buildings from Grade III and precincts, special permission from the Municipal Commissioner, Municipal Corporation of Greater Mumbai may be obtained if the height of the building exceeds 24 meters (excluding height of stilt on ground floor)."
(vi) On 18 September 1999, the Corporation issued a notification, proposing to notify the boundaries of Marine Drive Precinct. Objections were also invited and precincts were published and handed over to the State Government on 15 May 2007 for final sanction;
(vii) On 10 January 2009, Vasant Sagar, sought permission from the Executive Engineer of the Corporation to re-construct the building standing on the said property. This was on account of the fact that the existing building was in a dilapidated condition. By communication dated 12 March 2009, the Executive Engineer of the Corporation declared the then existing building on the said S.R.JOSHI 5 of 33 ::: Downloaded on - 29/03/2014 18:57:09 ::: pil-54-2012-judgment.sxw property in a dangerous/ dilapidated condition. The aforesaid communication also called Vasant Sagar to submit a proposal for re-construction of the building on the said property under the Regulation 33(6) of DCR 1991;
(viii) Consequent to the above, Vasant Sagar submitted its proposal for reconstruction of a proposed building of a stilt plus 6 upper floors and part of 7th floor which was forwarded by the Corporation to Maharashtra Coastal Zone Mumbai Authority (herein after referred to as MCZMA) respondent No.3. By communication dated 31 August 2009, MCZMA granted permission for proposed re-
construction of the building subject to No Objection from Mumbai Heritage Conservation Committee (herein after referred to as MHCC);
(ix) Pending Vasant Sagar obtaining necessary permission from the authorities, the State Government on 4 September 2009 modified Regulation 67-2(iii)(b) of the DCR 1991 to read as under:-
" In case of redevelopment under DC Regulation 33(6), 33(7), 33(8), 33(9) & 33(10) of heritage building/ sites from Grade III and precincts, special permission from the Municipal Commissioner may be obtained if the height of the building exceeds 24 mtrs excluding height of stilt on ground floor."
The above amendment extends the facility to re-construct a building of a height in excess of 24 mtrs. inter alia even to re- development projects under Regulation 33(6) of the DCR 1991.
(x) On 8 October 2009, the Corporation granted Vasant Sagar, building permission with grant of Intimation of Disapproval (I.O.D.) for putting up structure of ground plus six floors with a height of S.R.JOSHI 6 of 33 ::: Downloaded on - 29/03/2014 18:57:09 ::: pil-54-2012-judgment.sxw 23.95 mtrs. This was granted on the basis that cost of the work was less than Rs.5 Crores. However, the above IOD was granted even in the absence of NOC from MHCC;
(xi) On 22 July 2010, Vasant Sagar submitted two proposals to the Corporation to re-construct the building on its said property. One proposal was to reconstruct the building with basement, stilt, 3 parking floor and the 4th floor with a height of the building at 16.30 mtrs. (for convenience - the first proposal). The other proposal was to re-construct a building on the said property with basement, 1 to 3 parking floors and 4 to 13 residential floors with the height of 61.30 mtrs. (for convenience - the second proposal). The second proposal was referred by the Corporation to the State Government for CRZ clearance;
(xii) However, before the State Government could respond to the second proposal, on 23 July 2010 itself, the Assistant Engineer of the Corporation recommended sanction of the plan of Vasant Sagar to reconstruct a four storey building for the first proposal as submitted on 22 July 2010. Thereafter, on 29 September 2010, Commencement Certificate was also granted and Vasant Sagar commenced construction of new 4 storeys as per approved plan;
(xiii) So far as the second proposal submitted on 22 July 2010 to construct a building of height of 61.30 mtrs was concerned, the State Government returned the proposal on 11 October 2010. This was returned by pointing out in the above communication that the proposal could be considered only in accordance with DCR 1967;
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(xiv) On 6 January 2011, a new CRZ notification was issued by the Ministry of Environment and Forests, Central Government, under the Environment (Protection) Act, 1986. This notification, inter alia, provided that the re-development of dilapidated, cessed and unsafe buildings would be permitted under the new notification subject to such reconstruction projects being identified as old dilapidated and unsafe building on the date of the issue of the notification dated 6 January 2011;
(xv) On 10 February 2011, one Mr. Subhash Chandra, Director of Zee group of Companies to which group Vasant Sagar belongs addressed a communication to the erstwhile Commissioner seeking his special permission to re-construct a building with height of 61.30 mtrs, consisting of 13 floors. The above communication placed reliance upon power of the Commissioner under Regulation 67 (2)(iii)(b) of DCR 1991 to permit/allow by special permission re-construction of a building having height in excess of 24 mtrs. In pursuance of the above, Mr. Subhash Chandra - Director of Zee group met the erstwhile Commissioner in support of the above approval of a proposed building relying upon the new CRZ Notification dated 6 January 2011;
(xvi) The erstwhile Commissioner by an endorsement on above letter dated 10 February 2010 directed his Office as under:
"Mr. Chandra says that the CRZ clearance has been received by the State Government from the Centre. Please get the same from Mantralaya. Process(illegible) the case early (7 days)".
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On 5 March 2011, the Assistant Engineer of the Corporation submitted an internal report, seeking approval of his superiors including Commissioner for the proposed plan of re-constructing a building on the said property with the total height of 61.30 mtrs without insisting NOC from the MHCC. This was based on the fact that when special permission is granted by the Commissioner under Regulation 67(2) (iii)(b) of the DCR 1991 to re-construct a building in excess of 24 mtrs, no permission of the MHCC is required;
(xvii) On 7 December 2011, the MCZMA granted conditional permission for the proposed re-development of the existing building on the said property. The permission dated 7 December 2011 at condition No. 7-K provided that before the commencement of work of reconstruction, an NOC be obtained from the MHCC;
(xviii)On receipt of the conditional permission dated 7 December 2011 from MCZMA, the Commissioner endorsed thereon a remark "Please process urgently". In terms of the above directions, on 22 December 2011, the Executive Engineer of the Corporation submitted a report.
In the above report, it was stated that although MCZMA had directed obtaining permission of MHCC before the commencement of work, the permission would not be required if the Commissioner grants special permission under Regulation 67(2)(iii)(b) of the DCR 1991. The above report also indicated that in view of DCR 1991 refuge floors, parking floors etc, in the reconstructed building would be free of FSI;
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(xix) On 27 January 2012, the Director of the Corporation put up the report before the erstwhile Commissioner pointing out that government directives in respect of 'A' ward dated 25 April 1995 would not be applicable in view of the amendment to Regulation 67(2)(b)(iii) of DCR 1991 with effectfrom 4 September 1999. On the above report of the Director, the erstwhile Commissioner, made an endorsement, inter alia to examine if complaints have any merits, whether refuge floor area is to be counted in the FSI and whether heritage committee (MHCC) permission is required as also the application of DCR 1991 to these facts;
(xx) On 29 March 2012, the Assistant Engineer of the Corporation submitted a further internal report to the erstwhile Commissioner.
In the report, it was reiterated that NOC of MHCC is not required in case of projects covered by Regulation 67(2)(b)(iii) of DCR 1991. So far as height is concerned, it was submitted that Marine Drive Precinct is not a low-rise precinct but has buildings of varying heights. Reference was made to Intercontinental Hotel, having a height of 36.65 mtrs. (including the Dome) which was a front row building facing the Marine Drive Promenade. Further, the front row buildings along the Marine Drive Promenade are alone significant for the purpose of heritage. The Architect has also claimed that line of vision test was satisfied. Besides, reliance was placed upon the Licensed Surveyor's Line of Vision test i.e. from the end of foot-path touching the sea the height for second row buildings is permissible till it could not be seen. This would be 58.67 mtrs. of height;
(xxi) On 4 April 2012, the Deputy Architect of the Corporation submitted S.R.JOSHI 10 of 33 ::: Downloaded on - 29/03/2014 18:57:09 ::: pil-54-2012-judgment.sxw his report, inter alia pointing out Marine Drive Precinct is still a proposed Precinct and not yet notified. The Marine Drive Precinct is not a low-rise building precinct but has buildings of varying heights;
(xxii) On 12 April 2012, the Director of the Corporation, on the basis of the above report of the Assistant Engineer and the Architect emphasized the fact that as per CRZ Notification dated 6 July 2011, the re-development of dilapidated and unsafe buildings is to be allowed;
(xxiii)On 12 April 2012 itself, the erstwhile Commissioner by an endorsement on the report dated 12 April 2012 of the Director allowed/ granted permission to construct a building of the height of 58 mtrs. The endorsement of the erstwhile Commissioner states no MHCC permission is required for re-development under Regulation 33(6) of the DCR 1991 and directed that the MCZMA be informed accordingly. Further, reliance was placed upon the report of the Deputy Architect of the Corporation that the building on the said property behind the Art deco Building on the front row facing the Promenade is not visible from the end of the foot path on the seaward side. Besides, the erstwhile Commissioner directed general guidelines be issued permitting higher height in respect of buildings behind the front row of Art deco building facing the sea in the Marine Drive Precincts on the basis of the above line of vision test;
(xxiv) On 27 April 2012, the Chief Engineer of the Corporation addressed a communication to the Secretary, Environment Department, Mantralaya recording that as the proposed building on the said S.R.JOSHI 11 of 33 ::: Downloaded on - 29/03/2014 18:57:09 ::: pil-54-2012-judgment.sxw property is only in a proposed precinct, permission of MHCC is not required in terms of Regulation 67 of the DCR 1991. Thus, the Commissioner has approved the re-construction on the said property and requested that condition No.7-K in the NOC issued on 7 December 2011 by the MCZMA be deleted. On 4 May 2012, the Executive Engineer of the Corporation issued IOD in favour of Vasant Sagar;
(xxv) On 19 June 2012, the erstwhile Commissioner sought permission from the State Government to join Zee group to which group even Vasant Sagar belongs. This application was withdrawn on 16 August 2012. However, subsequently on 30 May 2013, the erstwhile Commissioner joined Zee group;
(xxvi) In view of the policy decision taken by the erstwhile Municipal Commissioner, on 12 April 2012 with regard to height of buildings, the State Government had on 6 December 2012 issued a directions to present Municipal Commissioner to take the advise of MHCC and submit a report. This Court on 25 March, 2013, taking into account the above directions dated 6 December 2012 of the State Government, by its order directed the present Commissioner to act on directive of the State Government and submit a report after consulting MHCC; and (xxvii)On 29 June 2013, the present Commissioner submitted his report to the State Government and a copy thereof is filed in this Court. In its above report, the present Municipal Commissioner records the recommendation of MHCC dated 9 May 2013 that redevelopment of the said property of Vasant Sagar be regulated to a maximum S.R.JOSHI 12 of 33 ::: Downloaded on - 29/03/2014 18:57:09 ::: pil-54-2012-judgment.sxw height of 24 mtrs. in accordance with guidelines forwarded by MHCC on 9 May 2013 applicable to all buildings in the precincts.
The operative part of the report dated 29 June 2013 of the present Municipal Commissioner reads as under:-
" The amendment to DCR 67 (2)(b)(iii), was made by the Government in 1999 and further amended in 2009. As per the said amendment in 2009, the redevelopment of buildings under DCR 33(6), 33(7), 33(8), 33(9) and 33(10) of heritage building/ sites from Grade-III and precincts is excluded from the jurisdiction of Heritage Committee and discretion is vested with the Municipal Commissioner for approving heights above 24 mtrs.
Such exclusion was done as a conscious policy by the Government only in respect of Grade-III buildings and buildings in Heritage precincts and such exclusion is not applicable to Grade-I and II heritage structures.
The case of Vasant Sagar under reference, is not an isolated case, where Municipal Commissioner has used his discretion vested in him under DCR 67 (2)(iii)(b) and has allowed the building height more than 24 mts. in the heritage precincts. It is to be noted that in a number of cases in the heritage precincts and Grade III heritage structures, the Municipal Commissioner has allowed redevelopment of buildings, by allowing higher height of buildings under DCR 67 (2)(iii)(b).
Higher building height on redevelopment becomes necessary, as all existing occupants are required to be rehabilitated with minimum specified area for every occupant. Extra incentive floor spaces are permitted for enabling subsidization of the cost of rehabilitation. Similarly, parking is also necessary to be provided within the premises, as the city is woefully short of parking spaces. Parking is also mandatory under DCR 36. In small plots, there is not enough space to provide parking in the open spaces and basements for this purpose are not feasible in small plots. It is to be noted that about 80% of the cessed buildings requiring redevelopment in S.R.JOSHI 13 of 33 ::: Downloaded on - 29/03/2014 18:57:09 ::: pil-54-2012-judgment.sxw the Island city are on plots of less than 500 sq. mt. Areas. In such cases, stilt and a few extra floors are required to be provided for mandatory parking requirement after which the habitable floors can be planned and built. In case of Vasant Sagar also the habitable floors start after the stilt and 3 upper parking floors.
If the height of new buildings is restricted as suggested by the Heritage Committee, reconstruction of large number of cessed buildings would not be possible, in the present scheme of providing free housing to existing occupants of cessed buildings through the mechanism of incentives FSI. In many cases, the required FSI for such schemes translates into much higher FSI, thereby resulting in increased building heights. Such buildings with higher heights are bound to affect the skyline and aesthetic aspects in the heritage precincts.
In view of the recommendations of the MHCC, there is clearly a trade off between maintaining the aesthetic aspects and character of heritage precincts and imperatives of redevelopment of buildings. It is possible to resolve this trade off by exploring different redevelopment options, in consultation with Town Planners and Urban Design Experts.
As far as Vasant Sagar case is concerned; the height of 58 mtrs. was permitted by the then Municipal Commissioner in accordance with the provisions of modified DCR-67 (2)
(iii),which prevails even today, and it is one of the many cases sanctioned in various heritage precincts".
3 Although various contentions are raised in the petition, at the hearing, Mr. Aspi Chinoy, Senior Counsel for the petitioner has challenged the grant of permission by the erstwhile Commissioner under Regulation 67(2) (iii)(b) of the DCR 1991 as under:-
(a) No permission can be granted under Regulation 67(2)(iii)(b) of the DCR 1991 allowing reconstruction of building in 'A' ward contrary to the Government Directives dated 25 April 1995 which continues S.R.JOSHI 14 of 33 ::: Downloaded on - 29/03/2014 18:57:10 ::: pil-54-2012-judgment.sxw to hold the field;
(b) CRZ Notification 2011 dated 6 January 2011 is only applicable in case of existing dilapidated buildings identifiable on 11 January 2011 and not in case of buildings which have already been demolished. In this case, there was no dilapidated/damaged building on the said property on 6 January 2011 when the CRZ Notification was issued as a reconstructed building of four floor was already in existence on the said property of Vasant Sagar;
(c) The erstwhile Commissioner has exercised his discretionary powers in a mala fide manner under Regulation 67 (2)(iii)(b) of the DCR 1991 while allowing reconstruction of the building having a height in excess of 24 mtrs. on the said property of Vasant Sagar; and
(d) The permission granted on 7 December 2011 by the MCZMA to re
-construct the building only after obtaining the permission from the MHCC was totally ignored and the building was allowed to be constructed without the permission of the MHCC.
4 As against the above, the permission granted by the erstwhile Commissioner on 12 April, 2012 under Regulation 67(2) (iii)(b) of the DCR 1991 has been supported by Mr. Harish Salve, Senior Counsel and Mr. Ravi Kadam, Senior Counsel appearing for respondent No.6 i.e. Vasant Sagar, Mr. V.A. Thorat, Senior Counsel for the Corporation and Mr. Parag Vyas, Counsel for the Union of India on the following grounds:-
(a) The permission granted under Regulation 67 (2)(iii)(b) of the DCR was not hit by the Government Directives dated 25 April 1995, with regard to heights of re-constructed building in 'A' ward. This was for the reason that it was only a temporary measure which came to an S.R.JOSHI 15 of 33 ::: Downloaded on - 29/03/2014 18:57:10 ::: pil-54-2012-judgment.sxw end when the Regulations under DCR 1991 were modified in 1999 and thereafter in 2009;
(b) Alternatively, it is submitted that the Government Directive dated 25 April 1995 with regard to 'A' ward was a directive by the State Government under Section 37 of the MRTP Act to the Planning Authority i.e. Corporation under Section 37(1) of the MRTP Act. In case of such directive, Corporation was obliged within 90 days of such directive to issue Notification and commence the process of inviting objections and suggestions in respect of the directions made by the State Government. However, in case, the Corporation fails to take such action as directed by the State Government, it would be for the State Government in terms of Section (1A) of Section 37 of the MRTP Act to issue the notice inviting objections, giving a hearing and making such inquiry as is necessary and to sanction the proposed modification under Section 37 (2) of the MRTP Act.
As the above exercise has not been carried out by either the Corporation or the State Government, the Government Directive dated 25 April 1995 in respect of height of re-constructed building in 'A' ward lapses;
(c) The CRZ Notification 2011 which came into force on 6 January 2011 would apply only to on-going projects which are identifiable on the date of the issue of the Notification i.e. 6 January 2011. As the project of reconstruction is not completed till such time the Occupation Certificate is granted, benefit of CRZ Notification 2011 is available to Vasant Sagar as on 6 January 2011;
(d) Alternatively, it is submitted that the project for reconstruction was
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pending on 6 January 2011. This is for the reason that the amended plans were awaiting approval from the Union of India as is evident from the endorsement of the erstwhile Commissioner on the letter dated 10 February 2011 of Mr. Subhash Chandra. Besides, it was submitted that the CRZ Notification being a beneficial notification should be liberally construed and the benefit of the CRZ Notification 2011 be extended to all buildings which are still under the re-construction after demolition of the dilapidated/ dangerous buildings ;
(e) The challenge to the action of the erstwhile Commissioner in granting permission under Regulation 67(2)(iii)(b) of the DCR 1991 is not sustainable as there is no malice in fact pleaded, otherwise the erstwhile Commissioner would be a necessary party. The erstwhile Commissioner also does not have any malice in law for the reason that the present Commissioner in his report dated 29 June 2013 has confirmed his view. Thus, the objections to the grant of special permission under Regulation 67(2)(iii)(b) of the DCR 1991 by the Municipal Commissioner on account of malice/ mala fide is not sustainable;
(f) The words 'special permission' mentioned in Regulation 67(2)(iii)
(b) of DCR 1991 for grant of permission to reconstruct a building of a height in excess of 24 mtrs. is used in the contrast or contradiction to a general permission to re-construct a building till the height of 24 mtrs; and
(g) Besides, in any view of the matter as directed by this Court in its order dated 25 March 2013 the present Commissioner S.R.JOSHI 17 of 33 ::: Downloaded on - 29/03/2014 18:57:10 ::: pil-54-2012-judgment.sxw submitted his report dated 29 June 2013 and justified the decision taken by the erstwhile Municipal Commissioner, granting special permission under Regulation 67(2)(iii)(b) of the DCR 1991 to Vasant Sagar to construct the building with the height of 58 mtrs. This report also reiterates and approves the application of the line of vision test. This should conclude the present controversy in favour of Vasant Sagar.
5 The learned Advocate General Mr. Darius Khambatta, appearing for the State Government, has made the following submissions:-
(a) So far as application of CRZ Notification of 2011 is concerned, it is submitted that the same would apply to on-going projects as on 6 January 2011. Therefore, it is submitted that the benefit of CRZ Notification 2011 would be available to Vasant Sagar;
(b) The exercise of discretion by the Commissioner while granting permission under Regulation 67(2)(iii)(b) of the DCR 1991 for development, has to be applied having regard to all facts including directive dated 25 April 1995 and the memorandum dated 26 April 1995 issued by the State Government in respect of heights of buildings 'A' ward of Mumbai on re-construction. In particular, attention is invited to Section 46 of the MRTP Act;
(c) It is also emphasized that on 12 July 1999, the Municipal Corporation had invited objections to the draft boundary areas of precincts of Marine Drive and after receiving objections, had published the precincts and handed over to State Government on 15 May 2007 for finalsanction. A new heritage list has now been S.R.JOSHI 18 of 33 ::: Downloaded on - 29/03/2014 18:57:10 ::: pil-54-2012-judgment.sxw published on 31 July 2012 in respect of Marine Drive Road; and
(d) Attention was drawn letter dated 14 October 2013 by which the State Government has directed the Commissioner to prepare guidelines in respect of heights of building to be permitted in consultation with MHCC keeping in view Regulation 67(7) of DCR 1991. The aforesaid letter dated 14 October 2013 has been placed on record by the Advocate General and it is submitted that General Guidelines have to be prepared in consultation with MHCC and only thereafter the Commissioner is to exercise his powers under Regulation 67(2)(iii)(b) of DCR 1991 for grant of special permission in respect of heights of building on case-to-case basis.
6 We have considered the rival submissions. The petitioners have challenged the exercise of discretionary power by the erstwhile Commissioner under Regulation 67(2)(b)(iii) of the DCR 1991 by alleging that it has been exercised in a mala fide manner. In support of its aforesaid challenge the petitioners have relied upon the fact that the erstwhile Commissioner who had granted permission to Vasant Sagar to construct a building in excess of 24 mtrs. in height had post his retirement from the Indian Administrative Service joined a company in Zee Group to which Vasant Sagar also belongs. Therefore, it is submitted that the exercise of discretion on the part of the erstwhile Commissioner was motivated. However, in spite of the above allegation, the petitioners have not chosen to make the erstwhile Commissioner a party to these proceedings.
7 We find that in the absence of erstwhile Commissioner being made a party respondent in these proceedings it is impossible for him S.R.JOSHI 19 of 33 ::: Downloaded on - 29/03/2014 18:57:10 ::: pil-54-2012-judgment.sxw to defend himself and explain the circumstances which would negate the allegations of mala fide and/or malice in exercise of his powers under Regulation 67(2)(b)(iii) of DCR 1991. No allegations of malice in fact can be sustained unless a party concerned against whom such allegations are made is a party to the proceeding. The Supreme Court in State of Maharashtra vs. Public Concern for Governance Trust and ors.
2007(3) SCC 587 has observed that the allegations made against person who is not a party before the Court do not merit any consideration. This is particularly so as making any remarks about a person who is not before the Court may seriously affect his reputation, besides being in complete negation of basic principle of natural justice i.e. condemning a person unheard. Similarly, there is no malice in law which has been shown to us by the petitioners. Malice in law would mean doing something without proper reasons or for purposes foreign to what the law intended. Not every erroneous decision would necessarily mean a mala fide and/or malicious exercise of power. Malice in law has not even been argued before us. In any case once the present Commissioner in his report dated 29 June 2013 has taken the same view as the erstwhile Commissioner on identical facts, no occasion to allege Malice in law can arise. In the above view, the ground of mala fide on the part of the erstwhile Municipal Commissioner in granting necessary permission to Vasant Sagar does not survive.
8 The petitioners have also challenged the applicability of CRZ Notification dated 6 January 2011 to the facts of Vasant Sagar's case. Therefore, it is the petitioners' case that the benefit of extra FSI etc. available under the 2011 Notification is not available. The petitioners contended that CRZ Notification 2011 itself provides that it would apply S.R.JOSHI 20 of 33 ::: Downloaded on - 29/03/2014 18:57:10 ::: pil-54-2012-judgment.sxw to old and dilapidated projects which can be identified on the date of the issue of the notification. It is the petitioners' contention that the earlier building which was in a dilapidated condition was not in existence when the 2011 Notification was issued for the reason it was demolished earlier and reconstruction of building on the said property was in progress. Therefore, there was no dilapidated building which could be identified on the date of the Notification i.e. 6 January 2011. As against the above, the respondents and the Advocate General have submitted that the CRZ Notification 2011 would apply as the project of reconstruction on the said property is still in progress. Therefore, it is possible to identify the project.
Moreover it is submitted that the notification issued on 6 January 2011 being beneficial in nature, has to be interpreted liberally.
9 We find that till the date of the issue of notification on 6 January 2011, no occupation certificate in respect of the building which was being re-constructed. Therefore, the reconstruction of the building in place of dilapidated building was still an on going project on the date of the notification. The benefit under the CRZ Notification 2011 is given to an on going project having its origin in a dilapidated building. If the benefit was to be restricted only to cases where the dilapidated building was in existence the same could have been so provided for in the Notification by restricting the benefit to a dilapidated/dangerous building in existence on the date of the Notification. In any case as correctly contended, on 6 January 2011 when CRZ Notification 2011 were issued the petitioners' project itself was pending approval with the Central Government as on 6 January 2011 as pointed out by the affidavits of Ministry of Environment and Forest dated 20 May 2013 and the affidavit on behalf of MCZMA dated 15 October 2012 as the revised cost of the S.R.JOSHI 21 of 33 ::: Downloaded on - 29/03/2014 18:57:10 ::: pil-54-2012-judgment.sxw project was Rs.13.67 Crores. In the above view we find that the CRZ Notification 2011 issued on 6 January 2011 would be applicable/available to Vasant Sagar in respect of the reconstructed building on the said property. Therefore, this objection of the petitioner also does not survive.
10 The next submission urged on behalf of the petitioner is that the erstwhile Commissioner granted special permission under Regulation 67(2)(iii)(b) of the DCR 1991 even though no permission was obtained from MHCC. This was in defiance of the order dated 7 December 2011 of the MCZMA which specifically directed in its conditional permission that no construction should be commenced till such time as no objection is obtained from MHCC. We find that MCZMA in its affidavit dated 15 October 2012 have stated that on considering the communication dated 27 April 2012 from the Corporation, it had in its 77 th meeting held on 9 October 2012 accepted the view of the Corporation that on interpretation of Regulation 67(2)(iii)(b) of DCR 1991 in cases of grant of special permission under the above Regulation, it is outside its scope to direct obtaining of no objection from MHCC. This Court in Arun R. Chitale and Anr. vs. State of Maharashtra in Writ Petition No. 867 of 2013 rendered on 13 February 2014 had at the interim stage set aside the Circular dated 18 August 2013 of the Corporation requiring proposals for redevelopment under Regulation 33(6), 33(7), 33(8), 33(9) and 33(10) of DCR 1991 to obtain consent of the MHCC in cases where it is not even proposed to declare the property as Grade I or Grade II Heritage building. The consultation with MHCC by the Commissioner may be necessary to prepare a general guidelines but not while he exercises his special powers under Regulation 67(2)(b)(iii) of DCR 1991. Therefore, the aforesaid objection of the petitioners for seeking an NOC from MHCC in the present S.R.JOSHI 22 of 33 ::: Downloaded on - 29/03/2014 18:57:10 ::: pil-54-2012-judgment.sxw facts is not sustainable and does not survive.
11 The petitioners have strongly relied upon the communication dated 25 April 1995 issued by the State Government to the Corporation to specifically provide an additional restriction in respect of height of building in 'A' ward which would have force of DCR 1991and also the Memorandum dated 26 April 1995 issued by the State Government directing the manner of granting permission for redevelopment in 'A' ward of Mumbai with regard to height of buildings. The additional restriction in the communication dated 25 April 1995 begins with a non- obstante clause which provides that the height of the building in 'A' ward after reconstruction shall be limited to the existing height of the buildings of similar age in the surrounding area. The aforesaid restriction is provided notwithstanding anything contained in DCR 1991. Therefore, this is an additional regulation/direction over and above the DCR 1991. It is also emphasized that the above communication dated 25 April 1995 was issued within 4 days of Regulation 67 being introduced in DCR 1991 on 21 April 1995. It is submitted on behalf of the petitioner that the said property of Vasant Sagar is situated in 'A' ward of Mumbai therefore the above communication dated 25 April 1995 and also the memorandum dated 26 April 1995 issued by the State Government would apply. In the above circumstances it is submitted that the permission granted under Regulation 67(2)(b)(iii) of DCR 1991 to Vasant Sagar to reconstruct a building of a height in excess of 24 meters is bad.
12 As against the above, the respondents i.e. Vasant Sagar, Union of India and MCZMA have strongly argued that the aforesaid communication dated 25 April, 1995 was a temporary regulation only till S.R.JOSHI 23 of 33 ::: Downloaded on - 29/03/2014 18:57:10 ::: pil-54-2012-judgment.sxw such time the DCR 1991 are suitably amended. In this case amendments in 1999 and 2009 of Regulation 67 of the DCR 1991 would itself indicate that the Government directive dated 25 April 1995 came to an end as the same was not incorporated into the DCR 1991. Alternatively, it is submitted that unless the directive which is issued under Section 37 of the MRTP Act is acted upon by having a regulation framed after inviting objections by the Corporation in a time bound manner or by the State Government and sanction obtained, the directive dated 25 April 1995 and the memorandum dated 26 April 1995 being only of a temporary nature came to an end.
13We have considered the above submissions. We find that the letter dated 25 April 1995 has not been specifically withdrawn. The submission of the respondent is that the letter dated 25 April 1995 issued to Corporation by the State Government under Section 37 of the MRTP Act was in the nature of direction to make necessary changes in the Development plan and introduce the same in the DCR 1991. Both the Corporation and State Government have not yet acted in furtherance either under 37(1) or 37(1A) of the MRTP Act respectively. There is no power under Section 37 of the MRTP Act to have the proposed modifications coming in to force with immediate effect. The procedure laid down in Section 37 of the Act has to be followed before it can come into force. Thus the source of power to issue such additional regulation to the DCR 1991 which will be effective with immediate effect with out following the procedure under Section 37 of the MRTP Act has not been shown to us. Thus, the petitioners contention on the above ground must fail.
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14 However the petitioners have a second string to their bow,
viz. on 25 April 1995 the State Government had issued a memorandum under Section 154 of the MRTP Act providing that reconstructed buildings in 'A' ward of Mumbai would have a restriction on their height keeping in view the existing heights of the buildings in surrounding areas of similar age. The aforesaid memorandum provides that while granting permission for development under Regulation 67 of DCR 1991, in view of Section 46 of the MRTP Act, the aforesaid requirement be kept in mind while scrutinizing application for redevelopment. The grievance of the respondents is that the memorandum under Section 154(1)of the MRTP Act cannot override the statutory provisions provided in the regulation or in the MRTP Act. The DCR 1991 has been framed under Section 159 of the MRTP Act. These regulations have the force of statutory regulations and administrative directions cannot overrule the same. In support reliance was placed upon the decision of the Supreme Court in Laxminarayan R. Bhatrad and others vs. State of Maharashtra (2003) 5 SCC 413 wherein the Apex Court has observed that the directions of the State Government in terms of Section 154 of the MRTP Act cannot supersede the statutory provisions contained in the main enactment or the regulations framed there under.
15 In this case the directives issued by the memorandum dated 26 April 1995 in respect of height of building in 'A' ward being restricted only to the existing height of similar building in the surrounding area does not supersede either the MRTP Act or the DCR 1991. It is issued for efficient administration of the MRTP Act. In fact, it would be noticed that Regulation 67 (7) of the DCR Rules 1991 itself provides for the need of maintaining sky line. The above Regulation 67(7) of the DCR Rules 1991 S.R.JOSHI 25 of 33 ::: Downloaded on - 29/03/2014 18:57:10 ::: pil-54-2012-judgment.sxw reads as under:-
"(7) Maintaining Sky Line - Buildings included in Listed Heritage Precincts shall maintain the sky line in the precinct (without any highrise 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 Commissioner in consultation with Heritage Conservation Committee."
This memorandum issued on 26 April 1995 is restricted only to 'A' ward and requires the reconstructed building to have height of not more than the height of the existing buildings in the surrounding area. It is in the nature of an administrative directive and the same has not yet been withdrawn. The erstwhile Commissioner while granting the permission on 12 April 2012 or the present Commissioner in his report dated 29 June 2013 while considering the application for permission under Regulation 67 of the DCR 1991 have not considered the above memorandum.
16 Further we find that as far as back on 12 July 1999 the Corporation had invited objections to the draft precincts of Marine Drive and after dealing with the objections had published precincts and handover over to the State Government on 15 May 2007 for final sanction. Therefore, the said property is within precincts of heritage site in terms of Section 46 of the MRTP Act. Therefore, the permission granting authority must have due regard to the proposal published by means of a notice. Undisputedly while considering granting of permission under Regulation 67(2)(iii)(b) of the DCR 1991 for reconstruction of a property in the proposed heritage precincts the memorandum dated 26 April 1995 S.R.JOSHI 26 of 33 ::: Downloaded on - 29/03/2014 18:57:10 ::: pil-54-2012-judgment.sxw has to be considered. We find that when permission was granted by the erstwhile Commissioner 12 April 2012 as well as the present Commissioner in his report dated 29 April 2013 both have completely failed to consider the above memorandum in light of Section 46 of the MRTP Act, for the purposes of granting special permission.
17 The Division Bench of this Court in the matter of LIC of India and another vs. Municipal Corporation of Greater Mumbai in Writ Petition No.2944 of 1982 rendered on 6 March 1984 has observed that for the purpose of Section 46 of the MRTP Act not only the published plan must be considered but all the relevant factors must be taken into consideration while granting the permission applied for under the Act. The Division Bench further pointed out that the paramount consideration while granting permission must ensure that the development plan is not thwarted. In fact another Division Bench of this Court in Anahita Pandole (Dr) vs. State of Maharashtra 2004(6) Bom. C.R. 246 has held that where the precincts are notified (as in this case) are to be considered as relevant material under Section 46 of the MRTP Act before granting the special permission under 67(2)(iii)(b) of DCR 1991. Therefore the Special permission dated 12 April 2012 of the erstwhile Commissioner is not sustainable in law as he has not had due regard to various factors as provided for under Section 46 of the Act.
18 The contention of the respondents that the present Commissioner by his report dated 29 June 2013 has confirmed with the view of the erstwhile Commissioner dated 12 April 2012 allowing reconstruction of building having height in excess of 24 mtrs. i.e. 58 mtrs. concludes the issue in favour of Vasant Sagar, is now to be examined.
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We find that the erstwhile Commissioner while granting permission to Vasant Sagar had essentially proceeded on the basis that MHCC permission under DCR 1991 is required only when the building is constructed for the first time and not when it is reconstructed under Regulation 33(6)of DCR 1991. Besides he also took the view that the height of the buildings(first row) facing Marine Drive promenade has only to be restricted in absolute terms. However according to him the building in the second row i.e. behind the first row of buildings should not be visible from the end of the footpath on the sea side. This test was described as line of vision test. Moreover, the erstwhile Commissioner had also laid down that the aforesaid test to be a policy guideline for all buildings in Marine Drive area. The present Commissioner in his report dated 29 June 2013 made at the instance of the State Government and this Court's order dated 25 March 2013 has proceeded on the basis that the said property is in the proposed precincts of Marine Drive. However the present Commissioner is of the view that the publication of precincts having been done in 1999 would have to be reviewed. The present Commissioner while furnishing his report dated 29 June 2013 proceeds on the basis that where a cess building requires redevelopment and free housing has to be given to the existing occupants, it would automatically result in increase in building's height and therefore, the line of vision test is to be applied in all cases of reconstruction at Marine Drive as a policy guideline. The present Commissioner has completely ignored the fact that in the case of Vasant Sagar there is no case of providing free housing therefore, the consideration which would apply in respect of a cessed building where the reconstructed building has to accommodate the existing occupants free of costs would be possible only by increased FSI S.R.JOSHI 28 of 33 ::: Downloaded on - 29/03/2014 18:57:10 ::: pil-54-2012-judgment.sxw which would result in increasing building heights, would have no application to the present facts. The line of vision test being applied by both the erstwhile Commissioner as well as the present Commissioner in respect of 'A' ward property is in face of the State Government Memorandum dated 26 April 1995 which has to be independently considered by the Municipal Commissioner while granting permission coupled with the fact that the said property of Vasant Sagar is a part of the notified proposed heritage precincts submitted to the State government for sanction on 15 May 2007 and would attract Section 46 of the MRTP Act. This consideration of the memorandum dated 26 April 1995 as required under Section 46 of the Act is lacking on the part of both the erstwhile and the present Commissioner.
19 We find that the line of vision test applied in respect of the second row of buildings i.e. behind the first row of buildings should not be visible from the end of the footpath on the sea side has been prescribed as a general guideline by both the erstwhile Commissioner as well as by the present Commissioner. This test in fact does away with the general prohibition provided in Regulation 67(2)(b)(iii) of the DCR 1991 of generally not having a reconstructed building in excess of 24 mtrs unless special permission is obtained. In fact the general guide line could have been issued by the Regulation making authority and it would not have been necessary to empower the Commissioner of the Corporation to exercise discretion to grant special permission where the building is to be constructed at a height in excess of 24 mtrs. The guidelines to be prescribed by the Commissioner should provide the circumstances which would have a bearing while granting the special permission under Regulation 67(2)(iii)(b) of the DCR 1991.
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20 One more aspect need be referred to and that is Regulation
31 of the DCR 1991, the relevant portion of which reads as under:-
"31:- Heights of Buildings (1) Height vis-a-vis the road width - The height of a building shall not exceed one and a half times the total of the width of the street on which it abuts and the required front page space ..... .... .....
.... .... ....
Explanations:-
.... .... ....
Provided however, that restrictions on height spelt out in this regulation shall not be applicable for reconstruction and redevelopment of old buildings undertaken under Regulation 33(7), 33(8) and 33(9) of these Regulations, which are not affected by Coastal Regulation Zone Notification dated 19th February 1991, issued by the Ministry of Environment and Forests, Government of India, and orders issued from time to time."
The above restrictions of height of building depending on width of the road has not even been adverted to either by the erstwhile Commissioner while granting permission dated 12 August 2012 or in the report of the present Commissioner dated 29 June 2013. The above proviso excluding the restrictions on height of building will not apply to Vasant Sagar Property, as the reconstruction in this case is under Regulation 33(6) of DCR 1991. Therefore, Regulation 31 of DCR 1991 should have been considered while granting special permission under Regulation 67(2) (b)(iii) of DCR 1991.
21 It is very pertinent to note that as late as on 14 October 2013 the Government of Maharashtra had written to the Commissioner S.R.JOSHI 30 of 33 ::: Downloaded on - 29/03/2014 18:57:10 ::: pil-54-2012-judgment.sxw after his report dated 29 June 2013 directing him to prepare general guidelines for entertaining applications for reconstruction of building in excess of height of 24 mtrs. after consultations with MHCC. This is a very well advised direction as the MHCC are experts with regard to the heritage buildings and its precincts notified as far back as in 1999. Therefore such a guideline would ensure that the objective of Regulation 67 of the DCR 1991 would be satisfied. It is only thereafter that the Commissioner must consider the application and the special circumstances warranting the grant of permission to Vasant Sagar. This is necessary as any permission given would have wide ramifications to the protection of heritage sites and its precincts in the 'A' ward of Mumbai.
22 It is made clear that the letter dated 14 October 2013 directing the Commissioner to consult MHCC for preparing general guidelines is made, keeping in view Regulation 67(7) of the DCR 1991 and the powers of the Commissioner to be exercised under Regulation 67(2)(iii)(b) of the DCR 1991. This is in addition to the guidelines titled as Special Heritage Regulations for Marine Drive Precinct prepared by MHCC and forwarded to the Commissioner on 9 May 2013. We were informed during the hearing of Arun R. Chittle & Co., (supra) that the above guidelines titled as Special Heritage Regulation for Marine Drive Precinct prepared by MHCC is presently with the State Government for its sanction. We trust that the State Government will take a decision on the same with expedition as otherwise not only all re-development projects within Marine Drive Precincts are in a state of uncertainty but could lead to a skewed re-development destroying the homogeneity of the Heritage character of the precincts.
23 Before we close, we must point out that we fully endorse the
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observations of the present Commissioner in his report dated 29 June 2013 that there is a trade-off between maintaining the character of heritage precincts and the imperatives of development. Further this trade-
off could be resolved by consultation with Town Planning and urban development experts. These experts in Town Planning and urban development along with City historians are all members of the MHCC and, therefore, consultation with MHCC in preparing general guidelines would possibly ensure the ideal middle path and/or balanced approach in respect of an issue which could deeply impact the future generations.
24(i) For all the aforesaid reasons we pass the following order:-
The order dated 12 April 2012 of the erstwhile Commissioner by which the proposed reconstructed building on the said property of Vasant Sagar has been approved with an height of 58 mtrs and the consequent permission, are set aside;
(ii) The letter dated 3 May 2012 of the Corporation informing he petitioner of the above decision dated 12 April 2012 of the Commissioner is set aside;
(iii) The report of the present Commissioner dated 29 June 2013 is set aside;
(iv) The Commissioner is directed to prepare final general guidelines for height of re-constructed buildings in excess of 24 mtrs. in accordance with Regulation 67(7) of the DCR 1991 in the precincts of Marine Drive area in consultation with MHCC; and
(v) Only thereafter the Commissioner will consider the application of S.R.JOSHI 32 of 33 ::: Downloaded on - 29/03/2014 18:57:10 ::: pil-54-2012-judgment.sxw Vasant Sagar for re-construction of building with a height in excess of 24 mtrs. in the context of the general guidelines so issued under
(iv) above.
25 Accordingly, PIL is allowed in the above terms with no order as to costs.
(CHIEF JUSTICE)
ig (M.S. SANKLECHA, J.)
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