Bombay High Court
Sorabji Ejalji Cooper And Anr. vs State Of Maharashtra And Ors. on 30 June, 1987
Equivalent citations: AIR1988BOM127, AIR 1988 BOMBAY 127, (1987) 13 REPORTS 524, 1987 MCC 453, (1988) MAHLR 822
ORDER
1. Both these petitions can be disposed of by a common judgment.
2. There is a plot at 'C Ward of the Bombay Municipal Corporation, known as "Bhangwadi Estate" admeasuring approximately 6330 sq. yards. In the revenue records, the plot had the number of C. S. 938 of Bhuleshwar Division. Since about 1960, the property card was showing the name of M/s. New India Assurance Co. Ltd. as the owners of the plot. It appears the buildings situated in this estate have been in existence for the last 80/90 years or more. Apart from various other chawls and other buildings, there also existed a theatre known as "Princess Theatre". The theatre has now been demolished. The petitioners in the first petition arc the residents of an adjoining plot bearing No. 585, almost situated behind the place where the theatre was in existence. The petitioners in the other petition are the residents of some of the chawls situated in this Bhangwadi Estate.
3. It appears that M/s. Sandeep and Co., who are respondent No. 3 in the first writ petition, and respondent No. 6 in the second petition, purchased from the owners of the property an area approximately admeasuring 2125 sq. yards undera registered Conveyance dated 16th October, 1978. They bought the portion which included the theatre. Prior to the said Conveyance, the former owners of the said property viz. New India Assurance Co. Ltd. had applied to the Superintendent of Land Records for sub-division of this plot. By an order dated 25th May, 1978, the subdivision was sanctioned, subject to a proper conveyance in favour of the present purchasers. After purchase, M/s. Sandeep and Co. have demolished and removed the theatre as also an adjoining chawl and a room and in its place after obtaining the necessary sanction from the Municipal authorities, they have construed a Shopping Centre. It appears that as on the date of filing of these petitions, the Shopping Centre had not yet come into existence. It was under construction. The construction has now been completed. But I am told that all the occupants of the Shopping Centre have been informed of this litigation and suitable undertakings have been taken from those persons to the effect that they would be bound by the result of these petitions.
4. After getting the Conveyance from the New India Assurance Co. Ltd., M/s. Sandeep Co., approached the Municipal Corporation for the purpose of construction of a Shopping Centre after demolition of the theatre and the adjoining two structures. At that time, the Municipal Commissioner was informed by a letter dated 19th May, 1979 by the Deputy Secretary to the Government to the effect that in case of redevelopment of plots on which cinema/drama theatres were in existence, the plots cannot be developed otherwise and on such plots a cinema/drama theatre shall be necessarily provided. The letter which is important, is as follows :
"To The Municipal Commissioner, Municipal Corporation of Greater Bombay, Bombay.
Sub : Development Control rules for Greater Bombay -- Development of sites on which cinema/drama Theatres are located.
Sir, I am directed to refer to this Department letter of even number dated 18th April, 1979 and convey to the Municipal Corporation of Greater Bombay, the following directive of Government under Section 154(1) of the Maharashtra Regional and Town Planning Act, 1966.
"All the plots on which Cinema/Drama Theatres are in existence are hereby designated as plots reserved for cinema/drama theatres in the development plan of Greater Bombay.
Provided that any other user which is in conformity with the Development Plan and Development Control Rules in force, shall be permitted along with user of Cinema/Drama Theatre.
Provided further that in case of redevelopement schemes on such plots, a cinema/drama theatre shall be necessarily provided and the seating capacity of such reconstructed cinema/drama theatre shall be not less than the existing licensed capacity of the theatre, or the capacity worked out as per the relevant regulations applicable in this behalf, whichever is here. All such development redevelopment shall be in accordance with the Development Control Rules and other regulations or order issued in this behalf".
The above directive is issued and will have effect till the Development Plan is revised. The Municipal Corporation of Greater Bombay shall ensure adequate reservations for Cinema/Drama Theatres in the revised Development Plan.
Yours faithfully, Sd/- R. B. Donald Dy. Secretary to Government."
5. Thereafter there is another letter dated 11th June, 1979 from the Municipal Corporation of Greater Bombay addressed to the Secretary to the Government of Maharashtra, and in that letter it was pointed out that the theatre has already been closed for more than two years because of financial position of the proprietor and, therefore, this plot cannot be said to be a plot with an existing theatre. It was also pointed out that I.O.D. was already issued on 30th May, 1979 and that on reconstruction the premises would be used for shopping user and for no other office or godown use. It was also pointed out in that letter that the plans are for the existing F.S.I. which is less than 1.33. It further stated as follows :
"In this case the owner does not want to maintain the existing drama theatre. The local councillors have also represented that this drama theatre should be discontinued because of the nuisance caused to the nearby residents and the residents within the property have also complained that the theatre user should not continue. In practice also it is not possible to continue theatre user as there is parking and this is a congested area. The theatre was stopped only because it could not run. There is no possibility of having a proper theatre there. In view of this, I seek Government's orders to issue a commercial certificate for this proposal since the theatre is not working for the last two years."
6. In response to this, the Government by a letter dated 7th August, 1979 permitted redevelopment of this property as a Shopping Centre, and the letter is as follows :
"With reference to your letter No. MCC/B/7892 dated 13th June, 1979, and No. MGC/B/7892 dated 13th July, 1979, on the subject mentioned above, I am directed to state that Government has no objection to your proposal for the redevelopment of the property at C.S. No. 938 of Bhuleshwar Division, Kalbadevi Road, Bombay, and to issue of a commencement certificate therefor without applying the Government directive contained in this Department letter No. TPB-4379/593-UD 5 dated 19th May, 1979, since the old drama theatre standing thereon is not in use since December 1978, its licence not having been renewed thereafter; provided that instead of a drama theatre a multipurpose hall will be provided in the redeveloped building along with other permissible users, as provided in the plans admitted to Government by the Architect, and subject to the plans etc. being strictly in accordance with rule, by-laws etc."
7. Accordingly, I.O.D. was finally issued on 11th August, 1979 the Commencement Certificate was issued on 13th August, 1979. As the developers started their project, obstructions came one after the other. Firstly, M/s. Sandeep and Co. had to file a suit, being Suit No. 6120 of 1979 in the Bomaby City Civil Court at Bombay, as against some of the residents in that area, including a Municipal Corporator for an injunction restraining the defendants from interfering with the construction of the building. It appears that in that suit, on 27th November, 1979 the defendants made a statement that the defendants will not obstruct the plaintiffs bringing the material on the suit site and on such statement being made, the application for interim reliefs was not pressed. On 3rd December, 1979, one Mr. Kanekia and another filed another suit in the Bombay City Civil Court, being Suit No. 6294 of 1979. It is said to be a representative suit under Order I, Rule 8 of the Civil P.C. for and on behalf of the residents of the locality. In that suit, the plaintiffs had taken up all the contentions that the petitioners herein had taken and they sought the intervention of the Bombay City Civil Court to restrain the present respondent No. 3 from putting up the Shopping Centre. The learned Judge, after hearing both the sides, by his order dated 18th December, 1979 gave a detailed reason, and found that the plaintiffs had not made out any prima facie case for any injunction and the Notice of Motion was dismissed with costs. It appears as against this order, the plaintiffs preferred an appeal to the High Court on or about 18th January, 1980. In this Appeal, they took out a Civil Application for interim reliefs. But the application was dismissed. It appears that a second application was also taken out and sometime in the month of April 1980, that application was also dismissed. On or about 10th September, 1980, the Appeal was also dismissed. In between on or about 14th May, 1980, one Atul K. Shah also filed a suit in the Bombay City Civil Court, being Suit No. 2946 of 1980 on the same grounds as in the present petition. That was also a representative suit. Initially, an ex parte injunction was obtained, but later on that Notice of Motion was dismissed in the month of August 1980. No further appeal was filed. In the meanwhile, the present petitions were filed. The first petition, being Misc. Petition No. 696 of 1980 was filed on 1st of July, 1980 and the other petition, being Writ Petition No. 888 of 1980 was filed on 22nd September, 1980.
8. My prima facie reaction is that having regard to the fact that the residents of the locality and the adjoining owners having filed suits in the Bombay City Civil Court on idential grounds cannot be allowed to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India. In any event, I may point out that the learned Judge of the Bombay City Civil Court who was competent to try the said suit gave a detailed order when he dismissed the Notice of Motion on 18th December, 1979. Against this Judgment, the plaintiffs in that suit who represented the members of the locality filed an appeal to this High Court and the Appeal was also rejected. That should in any event conclude the question as to whether the petitioners be allowed to agitate the same grounds once again. It is true that the present petitions cannot be considered as barred by "res judicata" as such. But judicial discipline requires that in matters relating to exercise of discretion, a party cannot be allowed to take chance in one forum, and when it loses, rush to another.
9. However, let me deal with the main contentions of the petitioners and point out as to those contentions are not tenable at all. It has been argued by Mr. Tunara for the petitioners in the first petition and Mr. Dalai in the second petition, that no sub-division of any plot is possible within the City of Bombay without the consent of the Bombay Municipal Corporation and the Planning Authority. Their contention is that in the present case, the sub-division was sanctioned by the Revenue authorities and not by the Municipal Authorities. Mr. Dalal, in particular, pointed out that when any plot is to be sub-divided into two plots or more, the Planning Authority will take into-account the Development Control Rules and the requirements thereunder, the benefit of F.S.I., drainage facilities, access to the plot, etc. If on subdivision, the sub-divided plot cannot avail of any F.S.I., either because the plot is too small and, therefore, no development is possible, or because the earlier plot before its subdivision had consumed the full F.S.I., no such sub-division would even be permitted. Mr. Dalai argued that after consumption of the full F.S.I. available to a particular plot, and the building is so constructed as to have some portion of the plot unbuilt upon, and thereafter, if the said unbuilt portion of the plot is sub-divided as a separate plot and the same is allowed to be developed, it would make a mockery of the entire concept of Town Planning .
10. Theoretically, these arguments sound very attractive. But let us analyse. This City has been built upon and has grown to the present size, since about 150 years. Till very recently there was no question of any application of any rule relating to F.S.I. as such. Till 9th February, 1967, we had no Development Control Rules, till about the fifties there was no proper town planning as such. But as the City expanded and the suburbs came to be merged with the City and with the introduction of Town Planning and the Development Control Rules, the development of plots took an orderly fashion. But prior to the introduction of these restrictions and regulations, an owner of the plot could construct and develop as much as he wanted. Most of the buildings in the City proper are of this type. They are generally in "Wadis" or huge plots generally belonging at a time to a single owner. As against this we have now constructions, all built after the advent of these regulations, mostly during the last three or four decades, largely in the suburbs or in the area now known as Greater Bombay. I think, for the purpose of our analysis it is necessary to distinguish between these two types of developments.
11. In the present case, in "Bhangwadi Estate" where the buildings were constructed about 80/90 years ago, there was no question of F.S.I. at all. So also in several other areas. That is how, we have clasters and rows of buildings, and if one applies the rules of F.S.I. available to them, the existing construction would be far in excess of the available F.S.I. at any given point of time. Suppose, in such a situation, if a building collarses for any reason, such as fire, rain etc., and yet the remaining constructions far exceed the F.S.I. available to the said plot, would any reconstruction be possible or not ? If what the petitioners contend is correct, no such reconstruction can be permitted as the same would be without F.S.I. Suppose the plots are so divided, that on such demolition of the building, a separate F.S.I. can be calculated in respect of each of such plots, can it be said that such reconstruction should still be not permitted, because all plots put together prior to such division had already exhausted and exceeded the F.S.I. ?
12. This situation may not arise in the case of initial developments of plots after the introduction of F.S.I. regulations, Town Planning and Development Control Rules. There is no question of over-congestion or over-consumption of F.S.I. in such cases. Even where we have large plots, the question as posed by Mr. Dalai will not arise, because under Rule 39 of Development Control Rules, "(i) when the land under development admeasures 3,000 sq. yds. or more the owner of the land shall submit a proper layout or sub-division of his entire independent holding." Then it provides for other requirements as to compulsory recreational space, its dimenssion, the minimum area and width for every plot, proper access etc. In all such cases, there is no question of consumption of F.S.I. of one plot for the other. So also there is no question of further sub-division of plots, after their full development.
13. Obviously, there is hardly any scope for application of Rule 39, in practice, in such of the areas where the plots are fully developed and constructed, prior to the advent of F.S.I. regulations and Development Control Rules. Theoretically, of course, it is possible to imaginea plot where all the existing buildings are demolished and thereafter the owner submits a layout or sub-division of his entire holding, as required under Rule 39. Anyhow, Rule 39 has no application to the case before me.
14. The petitioners say that in any event Sections 302 and 304 of the Bombay Municipal Corporation Act, apply. According to them when the previous owners sold a part of the plot to Sandeep and Co., they ought to have applied for permission to sub-divide under Section 302 of the Act. In other words, according to them, sub-division, if any, has to be by the Municipal Commissioner and not the Collector. Now, Section 302 of the Act is found in Chapter XI of the Act, which deals with "Regulations of Streets". It begins with Section 289 and till Section 301 (both inclusive), the provisions relate to "construction, maintenance and improvement of public streets". Sections 302 to 307 of the Act deal with "provisions concerning private streets." The relevant portion of Section 302 is as follows :
"302. (1) Every person who intends -
(a) to sell or let on lease any land subject to a covenant or agreement on the part of a purchaser or lessee to erect buildings thereon, or
(b) to divide land into building plots, or
(c) to use any land or permit the same to be used for building purposes, or
(d) to make or layout a private street, whether it is intended to allow the public a right of passage or access over such street or not, shall give written notice of his intention to the Commissioner, and shall, along with such notice, submit plans and sections, showing the situation and boundaries of such building land and the site of the private street (if any) and also the situation and boundaries of all other of such person of which such building land or site forms a part, and the intended development, laying out and plotting of such building land, and also the intended level, direction, and width and means of drainage of such private street and the height and means of drainage and ventilation of the building or buildings proposed to be erected on the land and, if any building when erected will not abut on a street then already existing or then intended to be made as aforesaid, the means of access from and to such building."
Mr. Tunara, in particular, relied on Section 304 which is as follows:
"304. (1) No person shall sell, let or use or permit the use of, any land for building or divide any land into building plots, or make or layout or commence to make or layout any private street, unless such person has given previous written notice of his intention as provided in Section 302, nor until the expiration of sixty days from delivery of such notice, nor otherwise than in accordance with such directions (if any) as may have been fixed and determined under Sub-section (1) of Section 303."
Again in the Municipal Corporation Act, there is no definition of "plot". It defines "land" under Section 3, Sub-section (4) of the said Act as follows :
"(r) "land" includes land which is being built upon or is built upon or covered with water, benefits to arise out of land, things attached to the earth or permanently fastened to anything attached to the earth and rights created by legislative enactment over any street;"
In this definition, the words "being built upon or is built" appear to have been inserted by an amendment in 1957 (See Bombay 28 of 1957, Section 2). However, there is no corresponding change in the term "land" used in Section 302. This has led to confusion. But it must be remembered that the definition of "land" is an inclusive definition. Therefore, it must be understood in its context. The following words used in Section 302(1)(a), (b) and (c), viz., (a) "to sell or let on lease any land.. ... to erect buildings thereon, or (b) to divide land into building plots, or (c) to use any land or permit the same to be used for building purposes," clearly indicate that Section 302 of the Act, deals with land which is not built upon. In such a case, if a person intends to sell or lease such an open land for the purpose of erecting buildings, or if he intends to use the said land for building purposes or if he intends to divide the land into building plots, he has to submit a plan showing sections, boundaries and private streets, if any, together with the notice of his intention to so build upon, to the Commissioner. It is in this sense, he has to comply with the requirements of Section 302, and he can sell, let or use or permit to use such a land only after the expiry of sixty days and subject to such directions as maybe given by the Commissioner, in the meanwhile (Section 304). Therefore, Section 302 or Section 304 has no application to any land which is built upon but is required to be sub-divided, partitioned, sold or to be let out to any person. If the provisions are construed otherwise so as to make them applicable to lands which are built upon, as in the present case, it would mean an absolute restriction on disposition of such lands, while those provisions do not even remotely contemplate the same. The object of Section 302 is to regulate boundaries, drainage, ventilation, laying out private streets etc, while developing an open plot of land.
15. Therefore, in the present case, on M/s. Sandeep and Co. purchasing their part of the plot, the only sub-division which was required to be done, was in the Collector's record. Admittedly, the Town Planning has not been introduced to this area. But as far as the Municipal Corporation was concerned, it acted on the strength of the Development Plan which had been prepared much earlier. The Development Plan was produced before me. The Development Plan shows that the plot has been divided into two parts -- one part has been shown as "Theatre" and the other part has been shown as "Bhangwadi", and the demarcation is clear. The Corporation took up the stand that in the Development Plan, this is how the land was shown and there was no question of sub-division of land as such. In my view if the Corporation has proceeded on the assumption that there was no sub-division, it has not done anything wrong in the matter.
16. My attention has been drawn to the other two Acts which are relevant viz. to the Maharashtra Regional and Town Planning Act, 1966 and the Bombay Metropolitan Region Development Authority Act, 1974. Both these Acts do not put any restriction on sub-division of any plot of land as such. But what is important is that the term "plot" has been defined under the Maharashtra Regional Town Planning Act, 1966 under Section 2, Sub-section (21), and it is as follows :
"21 "plot" means a portion of land held in one ownership and numbered and shown as one plot in a town planning scheme;"
Therefore, reading the statute as it is for the purpose of development of any plot, the Planning Authority has to take into account any portion of land held by one owner and the same might have been numbered and shown as one "plot" in any Town Planning Scheme. Therefore, when the respondent No. 3 applied for development of the property, as far as the Municipal Corporation was concerned, they were concerned with the plot viz. sub-divided C.S. No. 938 and it belonged to the ownership of respondent No. 3. Of course, Town Planning as such had not come into that area as such. But what is important is the unity of the plot and the ownership thereof. Therefore, having regard to all these facts, this plot had been allowed to be developed, subject, of course, to the existing F.S.I., pertaining to that particular plot in respect of which there can be no quarrel.
17. Mr. Tunara then pointed out that the Government had in fact reserved this plot for the purpose of a cinema/drama/theatre and, therefore, this could never have been released from that user. In other words, his submission is that there is a change of user, which is contrary to the Development Plan. I am afraid I am not in a position to accept this submission of Mr. Tunara. Firstly, in the Development Plan, 'C' Ward has been reserved as a "Commercial Zone". Therefore, as a "Commercial Zone", whatever development is possible, the same can be permitted. Secondly, the letter dated 19th May, 1979 on which the petitioners rely on shows that the same had been issued under Section 154(1) of the Maharashtra Regional and Town Planning Act, 1966. That provision makes it clear that the State Government "for the efficient administration of the said Act, can issue such directions or instructions from time to time, and the Regional Board or Planning Authority shall carry out such directions. Therefore, if in the present case on 19th May, 1979, the Secretary to the Government had issued the said letter, certainly it is open to the Government to revise its direction after considering all further facts. By issuing the letter dated 7th August, 1979 the Government has not changed the user of the plot as such. On the contrary, even with regard to the requirement of a "theatre", the Government suggested that instead of a drama theatre, a "multi-purpose hall" should be provided, which I am told, has been done. If that is so, it is not open to the petitioners to rely on the letter dated 19th May, 1979 and find fault with the subsequent letter dated 7th August, 1979.
18. Mr. Tunara pointed out that the subsequent letter dated 7th August, 1979 was given on the basis of misrepresentations made by the Municipal Commissioner. In that he pointed out that the theatre had not been closed as such and the petitioners had relied on some advertisements to show that even after the said date of alleged closure of the theatre, certain programmes had been performed in this theatre. It has been also contended that local Corporators and the Works Committee have also opposed the construction of the Shopping Centre. In my view all these things are not very material. The Government and the Corporation after taking into account all the facts and circumstances of the case have given a valid sanction and accordingly the construction has come up and I find no fault with the same.
19. In the result, both these petitions will have to be dismissed. However, in the circumstances of the case, there will be no order as to costs.
20. At the request of the, petitioners' Advocate, the undertakings given by the various occupants will continue to remain in force for a period of 8 weeks from today.