Bombay High Court
Kaalkaa Real Estates Pvt Ltd And Anr vs Municipal Corporation Of Greater ... on 23 June, 2022
Bench: R.D. Dhanuka, M.G.Sewlikar
(11)WPL-19398-2022.doc
rkmore
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally
signed by
RAJSHREE ORDINARY ORIGINAL CIVIL JURISDICTION
RAJSHREE KISHOR
MORE
WRIT PETITION (L) NO.19398 OF 2022
KISHOR
MORE Date:
2022.06.24
17:11:02
+0530
Kaalkaa Real Estates Pvt. Ltd. & Anr. ] .. Petitioners
vs.
Municipal Corporation of Gr. Mumbai & Ors.] .. Respondents
Dr.Milind Sathe, Senior Counsel alongwith Mr.Amogh Singh i/b Mr.Rahul Soman for the Petitioners.
Mr.Aspi Chinoy, Senior Counsel alongwith Mr.Joel Carlos, Ms.Madhuri More and Mr. Sandeep Patil i/b Mr. Sunil Sonawane, for Respondents - MCGM.
Mr.P.C. Chouhan, Assistant Commissioner, K/W and Mr. Sunil Rathod, Dy. Ch. E (BP) W.S.-1 present.
Mr.D.B. Patil, Designated Officer K/W present.
CORAM : R.D. DHANUKA &
M.G.SEWLIKAR, JJ
DATE : 23RD JUNE, 2022.
P.C.
1] This Writ Petition is filed by the Petitioners under Article 226 of
the Constitution of India, for issuance of writ of mandamus for calling the papers and proceedings and setting aside the Rejection Letter dated 3rd June 2022 and for issuance of writ of mandamus against refusal to grant permission to the application for retention dated 10th 1/14 (11)WPL-19398-2022.doc March, 2022 or in the alternate prays for quashing and setting aside the order of rejection and for reconsideration of the application for retention afresh.
2] For the purpose of deciding the case, following facts are emerged :
It is the case of the Petitioners that M/s. Artline Properties Pvt. Ltd. (for short "Artline") was the original owner of the land. The said Artline has been amalgamated and merged into the Petitioner Company on 18th October, 2017. On the said plot bearing CTS no.997 and 997A of Village Juhu, FP No.25 of TPS Santactruz, Juhu Sector No.II at Juhu Tara Road, Santacruz (West), Mumai, a building was constructed by the said Artline. On 22nd January, 2013, the Municipal Corporation granted occupation certificate in respect of the said building constructed on the portion of the said land. The building was comprising of basement plus stilt plus 1st to 7th and 8th (Pt) upper floors. 3] It is the case of the Petitioners that the part of the land out of the said larger plot was granted on lease in favour of the said Artline and more particularly area admeasuring 1187.84 per sq. mtr. The Petitioner No.1 carried out the construction on the said plot which was granted on lease in favour of Petitioner No.1. It is the case of the Petitioner that 2/14 (11)WPL-19398-2022.doc the total area of the plot after deducting the setback was 2010.74 and total permissible built up area of the entire plot was 5026.85. As per the occupation certificate plan dated 23rd January, 2013 the built upon area of the said building is 745.24 sq. mtrs. and built upon area of the existing building is 2065.56 sq. mtrs.
4] The Municipal Corporation issued a notice on 25th February, 2022 to the Petitioners under Section 351(1A) read with various other provisions of the Mumbai Municipal Corporation Act (for short MMC Act) alleging various unauthorized constructions/ alterations, change of user to the plan approved in respect of the said building and called upon the Petitioners to show cause as to why the said unauthorized constructions/ alterations and change shall not be removed or pulled down from the premises.
5] The Petitioners replied to the said show cause notice. The Municipal Corporation issued one more notice alleging change of use in respect of the same structures on 4th March, 2022. On 11th March 2022 and 16th March, 2022 the Municipal Corporation passed orders rejecting the contention of the Petitioners and held that the said construction described in two notices were unauthorized. 3/14
(11)WPL-19398-2022.doc 6] Being aggrieved by the said orders passed by the Municipal Corporation, the Petitioners filed Writ Petition in this Court bearing No. 8672 of 2022. During the pendency of the said Petition, the Petitioners filed an application under Section 44 of the Maharashtra Regional Town Planning Act, 1966 (for short MRTP Act) on 10th march, 2022 seeking permission to retain the existing structure constructed by the Petitioners. On 22nd March, 2022 the Petitioners brought it to the notice of the Court that the Petitioners had already filed retention/ regularization application under the provisions of MRTP Act. This Court accordingly disposed of the said Writ Petition. This court directed the Municipal Corporation not to take any coercive/precipitative action against the Petitioners on the basis of the impugned orders passed on the two show cause notices issued by the Municipal Corporation , pending the application of the Petitioners for retention /regularization. 7] This Court made it clear that in case any adverse order is passed by the Municipal Corporation on the said application for retention filed under Section 44 of the MRTP Act no further action shall be taken against the Petitioners by the Municipal Corporation for a further period of three weeks from the date of receipt of decision by the Petitioners. The Municipal Corporation issued requisitions on 7th April, 2022 calling upon the Architect of the Petitioners to comply with the same and also 4/14 (11)WPL-19398-2022.doc pointing out various discrepancies in the application under Section 44 of the MRTP Act made by the Petitioner No.1. On 14th March, 2022 the Petitioners responded to the said requisitions and furnished various details. On 3rd June 2022, the Municipal Corporation rejected the said application filed by the Petitioners for retention on various grounds which order is the subject matter of this Petition. 8] Dr. Sathe, learned Senior Counsel for the Petitioners invited our attention to various correspondence exchanged by the Petitioners and also to application under Section 44 of the MRTP Act for retention of the existing structure, the order passed by this Court in the earlier Writ Petition filed by the Petitioners and also the requisition made by the Petitioners on 7th April, 2022 and reasons recorded by the Municipal Corporation in the impugned order dated 3rd June, 2022. 9] It is submitted by the learned Senior Counsel for the Petitioners that lease was granted in favour of the Petitioner No.1 out of the said larger plot in respect of area admeasuring about 1187 sq. mtr. The Petitioners carried out construction on that portion of the said leasehold plot. The Municipal Corporation had considered 1 FSI and had permitted the Petitioners to carry out construction in respect of the area admeasuring 745.24 sq. mtr. It is submitted that the total area of 5/14 (11)WPL-19398-2022.doc the plot was 2209 sq. mtrs. It is submitted that the Petitioners have not carried out any unauthorized construction. On the basis of the FSI available on the date of making application for retention application under Section 44 of the MRTP Act, the Municipal Corporation ought to have considered the FSI of 2.5 and ought to have allowed the Petitioners to retain the entire structure. According to the Petitioners, if the FSI of 2.5 would have been considered on the date of filing of application for retention, the respondents would not have rejected the application filed by his clients. It is submitted that it is not the case of the Municipal Corporation that the Petitioners had not carried out any unauthorized construction. He relied upon the Judgment of the Supreme Court in the case of T. Vijayalakshmi and others vs. Town Planning Member and another, (2006) 8 SCC 502 and in particular paragraph 18.
10] It is submitted by the learned senior Counsel that since lease was already granted in favour of the Petitioners for the land admeasuring 1178 sq. mtrs, the Corporation could not have considered the FSI of 1 only as 745.24 sq. mtrs. He submitted that the entire action initiated by the Municipal Corporation is totally malafide and is based on the political vendetta against Shri Narayan Rane by the Shivsena.
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(11)WPL-19398-2022.doc 11] It is submitted that the Corporation is not concerned with the FSI imbalance to protect the interest of the adjoining land owner. In support of this submission, he placed reliance on the Judgment of this Court in the case of Shree Sai Realty Through Partner Shri Sandeep Dindyal Aagarval vs. State of Maharashtra and Ors. In 2019 SC OnLine Bom 1421 and unreported Judgment dated 3rd February, 2021 in the case of Deepak B Joshi vs. State of Maharashtra & Ors in Writ Petition No.388 of 2020.
12] Mr. Chinoy learned Senior Counsel for the Municipal Corporation on the other hand, invited our attention to the property card and would submit that the property card wound indicate the total area of 2209 sq. mtrs. in the name of Artline. He would submit that there is no other card. There is no sub division of the plot admeasuring 2209 sq. mtrs. He submits that merely on execution of lease in favour of the Petitioners, in respect of a portion of the said larger plot admeasuring 2209 sq. mtrs., there is no automatic sub division. Even when the Petitioner No.1 had applied for permission to carry out construction in respect of the leasehold plot, since there was no sub division, the Corporation rightly considered the FSI at 745.25 sq. mtrs. as applied by the Petitioners.
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(11)WPL-19398-2022.doc 13] The learned senior Counsel invited our attention to the order passed by this Court in the earlier Writ Petiton and would submit that though the Petitioners had challenged the orders passed by the Corporation on the said two notices, the Petitioners did not press the said challenge when the said order dated 22nd March, 2022 came to be passed by this Court. He submits that the Petitioners having filed application under Section 44 of the MRTP Act cannot be allowed to now pursue the other remedy if any to impugn the orders passed by the Corporation on those two notices.
14] It is submitted that if the application of the Petitioners would have been allowed, there would be FSI imbalance in respect of the adjoining plot. The Petitioners cannot be allowed to claim FSI on entire plot for seeking retention of the unauthorized construction. 15] The learned senior counsel invited our attention to the impugned order passed by the Corporation and submitted that since regularization/retention prayed for by the Petitioners was incapable of regularization, in view of there being no FSI and in view of various other breaches committed by the Petitioners, the Corporation rightly rejected the application for retention. The construction carried out on the larger plot is existing. He invited our attention to the reasons 8/14 (11)WPL-19398-2022.doc recorded by the Corporation in Para 2 to 5 of the said order which is subject matter of this Petition.
16] Mr. Chinoy learned senior Counsel vehemently urged that the Petitioners have committed flagrant violation of the provisions of the MMC Act and Development Control Rules and MRTP Act. 17] It is not in dispute that the Artline was the owner in respect of the area admeasuring 2209 sq. mtrs. It is also not in dispute that the said Artline had carried out construction on the said land for which the Municipal Corporation had granted occupation certificate on 22nd January, 2013. The lease in respect of part of the said larger plot of 2209 was granted in favour of Petitioner No.1. Petitioner No.1 thereafter carried out construction on the said leasehold plot. FSI granted while carrying out construction by the Petitioner No.1 was 745.24 sq. mtrs. as claimed and available on the said plot. 18] It was, however, noticed by the Corporation that the Petitioner No.1 had carried out violation of the sanction plan and had accordingly issued two notices to the Petitioners under Section 351(1A) of the MMC Act. The Municipal Corporation has already passed order holding the status of the portion of the structure as unauthorized. 9/14
(11)WPL-19398-2022.doc 19] Perusal of the order passed by this Court on 22nd March, 2022 in Writ Petition No. 8672 of 2022 indicates that though the Petitioners had challenged the notices dated 25th February, 2022 and 14th March, 2022, in view of the fact that Petitioners had filed application for retention under Section 44 of the MRTP Act, this Court passed order directing the Corporation to process the said application for retention and not to pass any coercive/precipitative action by the Corporation for certain period. The said order indicates that the right of the Petitioners was not reserved to challenge the said orders dated 11th March, 2022 and 16th March, 2022 holding substantial part of the structure as unauthorized.
20] Be that as it may, the lease was granted in favour of the Petitioner No.1 subsequently out of the said larger portion of the land. Fact remains that there was no division of plot at any point of time. It is thus clear that there was large scale unauthorized alterations carried out by the Petitioners after getting the plan sanctioned on the plot admeasuring 1187.84 sq. mtrs. A perusal of the impugned order passed by the Corporation on 2nd June 2022 indicates that as per Occupation Certificate plot area was 2209 sq. mtrs and 2814.81 sq. mtr. was already consumed in terms of DC Regulations. The Architect has now claimed FSI as per DC Regulations. The Architect is not 10/14 (11)WPL-19398-2022.doc allowed to claim FSI on the basis of DCR on the entire plot. Paragraph 5 of the said order clearly indicates that the application for regularization is rejected on various grounds holding that it is not possible to regularize the portion which was the subject matter of the application for retention under any provisions of law. The Petitioners have carried out alteration to the extent of three times of the sanctioned area.
21] We are not inclined to accept the submission made by the learned senior Counsel for the Petitioners that the impugned order dated 3rd June, 2022 is cut and paste of the notice issued by Corporation on 7th April, 2022. In our view, merely because there is lease granted in favour of the Petitioners for portion on the larger plot, out of the larger plot, there is no automatic sub division of the plot. The Petitioner No.1 when applied for permission for carrying out construction on the leasehold, Corporation rightly considered the FSI on the said plot and permitted construction only on 745.24 sq. mtrs. as claimed by the Petitioners. The construction carried out earlier on the said larger plot is still existing and thus Petitioners could not claim FSI in retention application for the entire plot.
22] Insofar as the submissions made by the learned senior Counsel 11/14 (11)WPL-19398-2022.doc for the Petitioners that the impugned action taken by the Corporation is because of the political vendetta between Shri Narayan Rane and Shivsena is concerned, in our view since construction carried out by Petitioner No.1 is totally unauthorized as is apparent, allegations of political vendetta against Shivsena or any other party cannot be considered. Action has been initiated by Corporation and not by any political party.
23] As regards Judgment in the case of T. Vijayalakshmi (supra) is concerned perusal of the said Judgment clearly indicates that facts before the Supreme Court were totally different. The owner was permitted to use the said land for residential purposes. In this case there is serious issue raised by the Corporation about unauthorized construction carried out by Petitioners. In the facts of that case, the Supreme Court held that application for grant of permission for construction of building is required to be decided in accordance with law applicable on the date of which such permission is granted. We are not in agreement with the submission of the Petitioners that the FSI of the entire plot ought to have considered by the Corporation while considering the application for retention under Section 44 of the MRTP Act on the date of application. The existing building on the larger plot has not been demolished. As regards occupancy certificate , it was 12/14 (11)WPL-19398-2022.doc granted by the Corporation in respect of the construction carried out by Petitioner No.1 prior to 22nd January, 2013.
24] Insofar as Judgment of this Court in the case of Shree Sai Reality (supra) is concerned, perusal of the said Judgment indicates that there were boundary disputes between two private parties and this Court accordingly held that the Corporation was not concerned with the disputes between private parties while considering the application seeking permission made by one of the party. In this case there are no two private parties disputing about construction carried out by the Petitioner No.1. The objection is raised by the Corporation about the flagrant violation committed by the Petitioner No.1. The said Judgment would not assist the case of the Petitioners.
25] Insofar as Judgment of this Court in the case of Deepak Joshi (supra) is concerned, the facts before this Court were totally different. The Corporation had withheld the permission in view of the claims made by the adjoining owner. In the facts of that case, this Court was of the view that since third party had made a complaint to the Corporation asserting the rights in the said land admeasuring 516.64 sq. mtrs. the respondent No.5 will have to adopt appropriate proceedings for adjudication of their alleged rights. The said Judgment 13/14 (11)WPL-19398-2022.doc is distinguishable on facts and would not advance the case of the Petitioners.
26] The Writ Petition is totally devoid of merit and is dismissed. 27] Dr. Sathe the learned senior Counsel for the Petitioners prays for continuation of the interim protection granted by this Court in Writ Petition (L) No.8672 of 2022 .
28] Interim protection granted by this Court by order dated 22 nd March, 2022 to continue for six weeks to enable the Petitioners to challenge the order passed by this Court today.
[M.G.SEWLIKAR, J] [R.D.DHANUKA,J]
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