Bombay High Court
Sandeep Sharadchandra Thakur vs Navi Mumbai Municipal Corporation on 20 March, 2013
Author: A.P.Bhangale
Bench: A. M. Khanwilkar, A. P. Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO. 132 OF 2011
Sandeep Sharadchandra Thakur ... Petitioner.
Aged 60 years, son of Sharadchandra
Sadanand Thakur, serving as Vice President
in a Multinational Company and residing
at F8/RH6/Sector 6, Vashi, Navi Mumbai-703
having PAN No.AADPT0874G,
Mobile No.98202 17381 and
E mail id.'[email protected].
V/s.
1) Navi Mumbai Municipal Corporation, ... Respondents.
The Planning Authority for the developed
Nodes in Navi Mumbai, office at Belapur
Bhavan, CBD Belapur, Navi Mumbai-614.
2) CIDCO of Maharashtra Limited, a Company
owned by the State of Maharashtra and
having main office at CIDCO Bhavan,
CBD Belapur, Navi Mumbai 400614.
3) The State of Maharashtra, a copy of the
Petition to be served through the
government pleader (A.S.) Bombay High
Court, Mumbai.
4) Hotel Tunga Regency Private Limited,
A private limited company having its
office at Plot No. 37, Sector 30A,
Vashi, Navi Mumbai -400 703.
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Petitioner present in-person.
Mr. Y.S. Jahagirdar, Senior Advocate i/by Mr. A. A. Garge for
Respondent No.1.
Mr. A.A.Kumbhakoni with Mr. A.M.Kulkarni for Respondent No.2.
Mr. V.S. Gokhale, AGP for the State.
Ms. R.M. Dere, PP with Ms. A.S. Pai, APP for Respondent State.
Mr. P.K. Dhakephalkar, Senior Advocate with K.S. Dewal & J.M.
Joshi for the Respondent No.4.
ig ---
CORAM : A. M. KHANWILKAR &
A. P. BHANGALE,JJ.
DATE : 20TH MARCH, 2013.
JUDGEMENT :(Per A.P.Bhangale,J.) 1 Rule. Counsel for the respective Respondents waive notice. Heard finally by consent of the parties.
2 The Petitioner-in-person claims that he is a Social Activist and takes up Social causes in public interest. He prays for a writ of mandamus against Respondent No.1, the Navi Mumbai Municipal Corporation (hereinafter referred as 'NMMC' for short) for direction to cancel development permission (Exh.'N') given to Hotel Tunga Regency Private Limited, Vashi, the Borey 2/41 ::: Downloaded on - 09/06/2013 19:45:37 ::: spb/ pil132-11jt.sxw Respondent no. 4 herein (hereinafter referred to as 'Tunga' for short) and for the direction to City and Industrial Development Corporation of Maharashtra, the Respondent no. 2 (hereinafter referred as 'CIDCO' for short) to cancel the leave & license agreement at Exh. 'B' regarding allowing parking of the vehicles upon public parking plot no. 36-B and to hand over the said plot to NMMC, the Planning Authority, for public parking management and for direction to the State of Maharashtra to investigate the events leading to the grant of the permission (Exh. 'N'), issuance of letter (Exh. 'L') by CIDCO and prayed for appropriate action against the officials of the respondents nos. 1 to 3, responsible to grant permission and concessions in violation of the Rules and Regulations.
3 According to the Petitioner, Respondent No. 3 - the State of Maharashtra issued the Notifications No. RPB-
1171/18124.WII dated 20.03.1971, RPB.1172-II-RPC dated 16.08.1973 designated a site for development of new township at Navi Mumbai to the East of Mumbai Harbour and after acquiring the land at the site, vested the said land with the CIDCO, appointed by the State as New Town Development Authority for Borey 3/41 ::: Downloaded on - 09/06/2013 19:45:37 ::: spb/ pil132-11jt.sxw the area of Navi Mumbai. The CIDCO became the Planning Authority for the entire area of Navi Mumbai in accordance with the provisions of the Maharashtra Regional Town Planning Act, 1966 (for short, "MRTP Act"). The State of Maharashtra in exercise of the powers under Section 154 of the MRTP Act, issued order dated 07.09.1994, appointing NMMC as the Planning Authority for the developed nodes in Navi Mumbai like Vashi, Sanpada, Nerul, Belapur-CBD, Airoli, Koparkhairane etc., and consequently CIDCO ceased to be Planning Authority.
However the CIDCO continues to be the Landlord of the entire land in Navi Mumbai including the land in developed nodes.
4 The CIDCO under the Agreement of Lease dated 11.12.2000, leased the plot no. 37 admeasuring 2282 sq. Mts.
Sector no. 30A of Vashi node of Navi Mumbai to M/s. Tunga Regency Private Limited (for short, hereinafter referred to as "Tunga") to construct a starred Hotel. The Petitioner contended that there is 20 meter wide Road to the North of plot no. 37 in possession of Tunga and to the north side of that road there is plot no. 36B admeasuring about 8096.56 Square Meter; thus the Borey 4/41 ::: Downloaded on - 09/06/2013 19:45:37 ::: spb/ pil132-11jt.sxw plots are separate. The plot no.36B is reserved for the "public Parking" in the nodal plan of Vashi.
5 Hotel Tunga was permitted the maximum FSI of 1.5 on plot no 37. Thus commencement certificate was granted by the NMMC on 23.05.2005 to construct a built up area of 3418.47 Sq. Mts. within permissible FSI of 1.5.9. Tunga had undertaken to provide 61 car spaces (each admeasuring 5 Mtrs. X 2.5 Mtrs.) for parking in plot no. 37.
6 Meanwhile, as argued by the Petitioner, Tunga had, apparently with malafide intentions represented to CIDCO in 2004 that it would undertake to develop plot no. 36B for public parking on build-operate-transfer (BOT) basis pursuant to leave and license agreement dated 18.11.2004 for duration of 15 years with recitals that the entire assets such as road, parking lot and garden will be public facilities which will be open to all. The agreement was signed by Mr. A.V. Kadam, the Estate officer of CIDCO which provided only Rs 100/- per annum as lease Rent and recited that Tunga is entitled to levy parking charges from the users of the parking lot.
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7 Subsequently vide Notification dated 14.10.2005 the State
Government permitted a higher FSI of 2 instead of 1.5 to "starred category residential hotels" while clearly specifying that no condonation shall be allowed in respect of required open spaces, parking spaces and any other requirement of D. C. Rules except that the height shall be allowed in case of grant of additional FSI.
Tunga submitted the revised proposal with 2 FSI to NMMC on 10.03.2006. As per fresh proposal, Tunga was now required to provide 118 car spaces within limits of its plot no.37. But apparently Tunga wanted to maximize its profits by constructing maximum number of Hotel rooms by providing minimum number of car spaces for parking within its plot no. 37. Thus it obtained a forged plan from the Estate officer Shri. A.V. Kadam to show that Tunga was permitted to accommodate some of the car parking spaces in the public parking plot no.36B, as if giving the impression that the plan was approved by the Additional Communication & Transportation Engineer. This makes it clear that Tunga had malafide intention to acquire public parking plot no 36B of CIDCO, in the guise of developing it in to "public parking" plot.
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8 According to the Petitioner, Tunga obtained the
occupation certificate dated 21.01.2006 on the basis of forged plan indicating that it can provide only 59 car spaces in the plot no. 37 which was two car spaces short. Tunga was required to provide 118 car spaces, but shown 59 car spaces adjusted in its plot. The remaining 55 car spaces were shown adjusted in plot no. 36B while showing deficiency of 4 car spaces as permitted.
Occupation certificate was issued by the NMMC. Despite the fact that the plot no. 36B was reserved for public parking in nodal plan of Vashi and though aware that there is no provision in the G. D. C. Rules to transfer parking space in other plot, Mr A.V. Kadam, Estate officer of CIDCO to help Tunga, indulged in forgery, by putting his signature on the relevant plan under 'Approved Plan' and made endorsement that the plan was shown to ACTE and he has approved the same. In fact the plan was never shown to ACTE of CIDCO and the ACTE had never approved the plan of showing the parking requirement of plot no.
37 on plot no. 36B. The endorsement made by Mr. A.V. Kadam was without approval of the competent authority of CIDCO Ltd.
According to the Petitioner the Tunga was required to satisfy the Borey 7/41 ::: Downloaded on - 09/06/2013 19:45:37 ::: spb/ pil132-11jt.sxw minimum car parking spaces in plot no. 37 itself and could never have been allowed to utilize the car parking spaces inside the plot of CIDCO reserved for the public parking.
9 The Petitioner had filed PIL No. 43 of 2009 to highlight the confusion caused in the parking arrangements in the area. On 29.01.2009 the NMMC was directed to consider the contents of the Petition objectively and forward their recommendation to CIDCO for appropriate remedial measures.
NMMC and CIDCO were directed to act within six weeks. It is the grievance of the Petitioner that instead of taking remedial measures to require Tunga to comply with the regulations, the bureaucrats were conniving to help Tunga, to commercially exploit its plot no. 37 and by utilizing the slots from the plot no.
36B as well. The Petitioner had to file another PIL No. 260 of 2009 for appropriate orders. This Court vide order dated 22.04.2010, disposed of the same by directing the respondents to take further action by 30.09.2010. But the efforts of the officials of NMMC, CIDCO and Urban Development Department of the State to permit Tunga to commercially exploit its own plot by reducing the parking spaces and using the same for Borey 8/41 ::: Downloaded on - 09/06/2013 19:45:37 ::: spb/ pil132-11jt.sxw commercial outlets and at the same time enjoy the parking spaces in plot no. 36B. Tunga could still obtain development permission regarding less number of parking slots than required to be provided in its plot no.37. Tunga was hastily permitted to provide only 59 car spaces in its plot and permitted to create additional car parking spaces on BOT basis by developing plot no. 36B by constructing a Podium and a terrace to accommodate 106 car spaces. Tunga is thus permitted to use plot no. 36B for captive parking of its own vehicles when the plot no. 36B has been earmarked for the public parking lot only. Though the Petitioner in public interest has sought the revocation of the permission for development to Tunga by addressing communication to NMMC, it did not respond.
10 We have heard the submissions at the Bar and perused the Affidavits along with the record. Shri Sanjay Shantaram Banait, Assistant Director of Town Planning, Navi Mumbai Municipal Corporation has sworn affidavit contending that the petition is frivolous and filed with malafide intention.
According to the affidavit on behalf of the NMMC, State Government had permitted 1.5 FSI vide Notification dated Borey 9/41 ::: Downloaded on - 09/06/2013 19:45:37 ::: spb/ pil132-11jt.sxw 14.10.2005 for star category residential Hotels subject to prior approval of the State Government and other conditions that it may specify; FSI to maximum 2.00 was permitted, Tunga had applied to the Government for the additional 0.5 FSI on the plot no. 37. Since additional Parking spaces were not available on plot no.37, Tunga demanded plot no. 36B for the purpose of arranging deficit parking spaces. CIDCO had granted NOC dated 20.12.2005 for the purpose of allowing Tunga using plot no. 36B to utilize the parking spaces. State Government granted permission vide letter 22.02.2006 permitting Tunga to avail additional 0.5 FSI and revised plan were accordingly sanctioned after obtaining undertaking from Tunga. Occupancy certificate dated 21.09.2006 was issued to Tunga, on the basis of the permission letter dated 22.02.2006 issued by the Urban Development Department of the State of Maharashtra. No specific directions as to cancellation of the previous permission were issued to Tunga. NMMC was directed to objectively consider the suggestions made by the Petitioner and forward their recommendation for appropriate 'remedial measures' to the State Government, for implementing parking requirements. The State government vide notification dated 26.06.2010 has Borey 10/41 ::: Downloaded on - 09/06/2013 19:45:37 ::: spb/ pil132-11jt.sxw modified the regulation for parking for NMMC under Section 37(1AA) of the MRTP Act, 1966. NMMC is thus implementing the amended regulations. As per occupancy certificate all the 59 parking spaces are available in plot no. 37. Plot no. 36B is reserved for parking and there is no change of user of the said plot as the plot no. 36B is being used for the purposes of parking only. Plot no. 36B was leased out to Tunga by the CIDCO for a period of 15 years on BOT basis and while sanctioning the revised plan indemnity Bond was furnished by Tunga which is binding on it. On the expiry of the period of 15 years Tunga shall be liable for the suitable action if the arrangement for the required parking spaces is not made available. Permission to construct the Podium and terrace has been granted to Tunga by letter dated 01.06.2011. While issuing the plinth completion certificate on 09.11.2011, NMMC incorporated a condition that over and above the 40 parking spaces required for Tunga, 66 parking spaces would be provided for the purpose of public parking.
Further according to NMMC revised permission was granted permitting 2 FSI to Tunga on the basis of the Government letter dated 22.02.2006 with prior approval of the State Government whereby the Government permitted Tunga to accommodate Borey 11/41 ::: Downloaded on - 09/06/2013 19:45:37 ::: spb/ pil132-11jt.sxw some of the parking spaces on the plot no. 36B apart from the letter by CIDCO dated 20.12.2005. Occupancy certificate was granted on 29.09.2006 by the NMMC. It is not disputed that the plot no. 36B was earmarked for public parking space in nodal plan of Vashi, as prepared by CIDCO. It is contended that there is no change of user of CIDCO plot no. 36B. CIDCO has leased out the same to Tunga on leave & license basis.
11 We have also perused the Affidavit of Sanjay Gopal Paluskar, Manager (Town Services) sworn on behalf of the CIDCO which indicated that the original plot no. 36B was found, admeasuring 8096.56 sq. meters and subsequently when the said Plot and adjacent plot were got re-demarcated, the plot area of Plot No. 36-B is confirmed as 7223.51 sq. meters on 14.03.2008. It is further stated on behalf of the CIDCO that Plot No. 36-B is fenced and is freely accessible to any member of general public all through out day and night. Shri Sanjay Gopal Paluskar in his affidavit further stated that Plot no. 36B in Sector 30A of Vashi admeasuring 8096.56 Sq. Meters was allotted on leave and license basis to Tunga on 18-11-2004 in terms of clause 4(m) of the agreement, has been kept open for public at Borey 12/41 ::: Downloaded on - 09/06/2013 19:45:37 ::: spb/ pil132-11jt.sxw large. Subsequently lay-out of the plot was re-demarcated and confirmed as area admeasuring 7223.51 Sq.Meters on 14-03- 2008. No compound or fencing has been erected enclosing the plot, therefore it is freely accessible to public at large throughout day and night. Tunga has developed the property facilitating the smooth vehicle parking. Tunga has at its own cost, in terms of directions issued by the urban Development department constructed podium parking on the plot while ground floor has been kept open, freely accessible to public without any restriction to park vehicles. Appropriate additional area has also been kept open for the general public at large.
12 Perusal of the Affidavit sworn by Shri Suresh Babu, the Manager, Town Service of CIDCO, the Respondent No.2 shows that the CIDCO is the New Town Development Authority for Navi Mumbai in exercise of powers under section 113 (3A) of the Maharashtra Regional and Town Planning Act, 1956 and that the Government of Maharashtra has notified the site for the new town Navi Mumbai and acquired all privately held lands within the notified area which became vested in the CIDCO for Borey 13/41 ::: Downloaded on - 09/06/2013 19:45:38 ::: spb/ pil132-11jt.sxw the purpose of planned development and disposal thereof. The CIDCO under section 118 of the MRTP Act has power and authority to dispose of the lands by way of lease. The power is exercisable by its Board of Directors. The Board of Directors with the previous sanction of the State Government solicited under Section 159 of the MRTP Act had framed New Bombay Disposal of Land Regulations, 1975. These regulations enable the CIDCO to approve leave and licence agreement. Further according to Shri Suresh Babu Plot No. 36-B was used by the public at large for throwing waste and to attend nature's call and to carry on various anti-social and unethical acts and therefore, it was allotted in favour of the Respondent No.4-Hotel Tunga Regency Private Limited for the purpose of beautification, garden and public parking by executing the leave and licence agreement. Accordingly Hotel Tunga which is in occupation of Plot No. 37, developed the Plot No. 36B by way of appropriate beautification and garden as well as public parking. According to Suresh Babu, CIDCO was the Planning Authority for Navi Mumbai and was entrusted with the job of developing completely virgin land from inception and obviously it was a herculean task to plan entirely new city on the virgin land. It was tedious job to Borey 14/41 ::: Downloaded on - 09/06/2013 19:45:38 ::: spb/ pil132-11jt.sxw invite reputed hotel groups to invest in Navi Mumbai area to initiate their projects in Navi Mumbai area and to develop their star hotels within newly developing Info-tech Park in Vashi. On account of insufficiency of adequate infrastructure and the commercial development and as such many hotel groups did not respond to the offer of the CIDCO. Many of the corporate houses and hotel groups though initially showed willingness, later on withdrew themselves. In such situation Tunga had participated in the tender process for allotment of plot no. 37 for establishment of star hotel. The tender bid was selected on its own merit in respect of plot no. 37 situated in sector 30A of Vashi. Plot No. 37 was allotted to Tunga on 12.02.1999. The NMMC granted permission to Tunga for construction of star hotel building and 49 Car parking in the basement and ground level. This permission was granted on 07.09.2002.
Thereafter, on 18.11.2004 the leave and licence agreement was executed by and between CIDCO and Tunga in relation to the plot no. 36-B on BOT basis. The plot No. 36B was allotted to Tunga for the purpose of beautification, garden and public parking. Tunga requested CIDCO on 03.03.2005 to issue a letter to the NMMC for its NOC to allow some hotel car parking Borey 15/41 ::: Downloaded on - 09/06/2013 19:45:38 ::: spb/ pil132-11jt.sxw and as a matter of State Policy, CIDCO was keen to encourage Tourism in the star hotels in the city of Navi Mumbai.
Accordingly, by letter dated 10.03.2005, the CIDCO gave its NOC in favour of Tunga to allow the hotel car parking on Plot No. 36-B. The NMMC sanctioned second plan on 22.03.2005, wherein in all 61 parking places were provided in the basement and ground level as per revised policy of the State Government dated 14.10.2005, the FSI was increased from 1.5 to 2.00 for the star category hotels and accordingly 0.5 additional FSI was sanctioned by the CIDCO for Tunga Hotel. Thereafter, Tunga had applied for appropriate permission from the NMMC on account of increase in the FSI by additional 0.5. The Urban Development Department of the State Government, N.M.M.C. and CIDCO had accordingly granted two FSI to Tunga with additional premium to be paid 50% to the Government, 25% to the NMMC and 25% to the CIDCO. Tunga had submitted its revised proposal to construct their hotels with 2 FSI with 118 car parking slots. Accordingly, the revised plan was sanctioned. In the plan approved by the NMMC for 114 car spaces, the staircase alongwith net built up area plus balcony plus 10% for visitors was calculated totaling to 6234.793 sq. Borey 16/41 ::: Downloaded on - 09/06/2013 19:45:38 ::: spb/ pil132-11jt.sxw meters plus 10%, that is 114 car parking. According to Suresh Babu the correct calculation would be net built up area plus balcony plus 10% for visitors only totaling to 5630.668 sq. meters plus 10% i.e. 99 car parking slots. Without noticing the above miscalculation, Tunga had obtained occupation certificate from NMMC wherein 59 car spaces were provided on plot no. 37 and the balance 55 car spaces were required to be provided on plot no. 36-B. Thereafter, on account of the complaint of the Petitioner by his letter 24.07.2007, the NMMC invited suggestions and directions from the Urban Development Department. Tunga requested the CIDCO to resolve the issue of parking spaces by allotting plot no. 36-B on lease by making an application dated 03.10.2008. Tunga was directed by CIDCO by its letter dated 16.06.2010 to create additional parking space for hotel vehicles by constructing podium on plot no. 36-B. In the meanwhile, the Petitioner filed PIL No. 43 of 2009 in which this Court directed the NMMC to consider the objections/ suggestions of the Petitioner and to forward the same to the State Government for appropriate remedial measures. Accordingly on 07.09.2009 the Urban Development Department directed the CIDCO and NMMC to take remedial Borey 17/41 ::: Downloaded on - 09/06/2013 19:45:38 ::: spb/ pil132-11jt.sxw measures by allocating 50 parking spaces within plot no. 37 and 55 parking spaces on the plot no. 36-B. According to Suresh Babu in fact 39 car parking spaces were available while 20 parking spaces slots were diverted by Tunga for the purpose of coffee shops, laundry and stack parking etc. but they removed the coffee shop, laundry and stack parking and made available remaining 20 parking slots so as to comply with the order of the State Government to provide total 59 parking spaces within plot no. 37. The State Government also directed that 55 parking slots for Tunga should be provided at stilt level and public parking on plot no. 36B. Tunga was to bear expenses for construction of podium. Accordingly, the NMMC directed Tunga to comply with the order of the State Government dated 07.09.2009. Tunga borne all expenses for construction of podium. The State Government through its Urban Development Department on 06.03.2010 instructed the NMMC and CIDCO as also the Deputy Director of Town Planning to comply with certain directions to the effect that Tunga shall submit revised parking plan on plot no. 37 and plot no.36-B alongwith details of Podium before the end of March, 2010. NMMC shall verify the proposal and give Borey 18/41 ::: Downloaded on - 09/06/2013 19:45:38 ::: spb/ pil132-11jt.sxw sanction to the revised parking plan by April, 2010 and the Respondent No.4- Tunga was to bear all expenses for construction of the Podium and appropriate access road for parking from the porch level of plot no. 37 and plot no. 36-B and that the CIDCO shall maintain the public car parking of plot no.
36-B as it is. The NMMC informed the Urban Development
Department
of the State Government on 15.06.2010 to the
effect that 32 car parking will be allotted within the Hotel and balance 67 car parking will be allotted on plot no. 36-B and sought permission from the Urban Development Department.
Accordingly, CIDCO by letter dated 16.06.2010 asked Tunga to create additional parking space for hotel vehicles by constructing a Podium on Plot No. 36-B. Thus NMMC on 01.06.2011 granted permission to Tunga to construct Podium with 106 car parking slots as per the revised plans. Thus Plot No. 36-B is used as public parking. According to Suresh Babu the purpose for which the Plot No. 36-B was allotted on leave and license basis to Tunga is maintained and achieved by appropriate beautification, garden and public parking areas without disturbing in any manner either the original land or the public parking on the said plot.
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13 Shri Sudhakar Nangpure, Deputy Director of the
Town planning, Konkan Division, Navi Mumbai on behalf of State has filed Affidavit. He contended that the plot no. 36B has been earmarked for public parking in the Nodal Lay out plan but is not reserved for parking in the final development plan. By way of present arrangement Tunga is permitted to put up stilt on the said plot of land, whereby the public parking contemplated in the lay out plan is provided for and at the same time parking requirement of the plot no. 37 of Tunga can be met. By this arrangement no public purpose has been sacrificed. Entire ground level parking is made available for people at large while parking on the stilt is provided to Tunga. Thus remedial measures have been taken and no public interest suffers. No public purpose is involved to stop the construction by Tunga on plot no. 36 B. It is contended that the matter is of economic policy to adopt appropriate technique of Management of projects concomitant to economic expediencies in the context of expanding exigencies of urban planning. The authorities have taken remedial measures to meet the situation effectively at the cost of Tunga, without compromising the requirement of public parking. Captive parking to Tunga at its cost on plot no. 36B is provided on the ground in Borey 20/41 ::: Downloaded on - 09/06/2013 19:45:38 ::: spb/ pil132-11jt.sxw front at stilt level. Accordingly remedial measures were taken to meet the needs of Tunga for additional car parking spaces on elevated podium on leave & license basis while maintaining the use of public parking on plot no. 36B. The ownership of the land have not changed. No permanent rights are created in favour of Tunga. Stilt parking made available to Tunga does not hamper public parking utility space.
14 It may be noted that report from the Police Inspector (crime) CBD police station was received by this court that, FIR was lodged by Sanjay Gopal Paluskar at CBD, Belapur police station at C.R. no. 31 of 2013 on 19.02.2013 under Sections 167, 406, 409, 420, read with 120B of Indian Penal Code against accused public servant A.V. Kadam, then Estate officer CIDCO for preparing bogus documents of unauthorized approved plan by CIDCO conniving with the co-accused M/s. Tunga Hotel Regency to cause unlawful gain to the accused M/s. Tunga Hotel Regency and causing wrongful loss to the State Government which is under the investigation regarding allotment of public parking space in plot no. 36B. It is also reported that A.V.Kadam is no more living at present. The FIR alleged that plot Borey 21/41 ::: Downloaded on - 09/06/2013 19:45:38 ::: spb/ pil132-11jt.sxw no. 36B was allotted as parking lot to M/s. Hotel Tunga Regency for nominal or token consideration of Rs 100/- per annum on leave & license basis on 18.11.2004.
15 It is grievance of the Petitioner that any concession allowed to any plot owner reducing the requirement of parking within that plot is contrary to public interest as the requirement of parking within that plot which could have been provided will have to be met by parking of the cars from that plot elsewhere, where public could have parked the cars. D.C Regulation 44 requires that each plot has to provide for the parking spaces proportionate to the built up area of that plot. This is to facilitate parking as well as loading and unloading from vehicles of the Hotel. The Petitioner making reference to the State Government Notification No TPB-4303/335/CR-64/04/UD-11 dated 14.10.2005 issued under the MRTP Act, 1966, contended that for the star category residential Hotels in any Zone other than RPZ, the maximum FSI permissible is 2.00 on independent plot and under one establishment as approved by the tourism department. No condonation in the required open spaces, parking spaces and any other requirement of the D.C. Rules was permissible except Borey 22/41 ::: Downloaded on - 09/06/2013 19:45:38 ::: spb/ pil132-11jt.sxw that the height shall be allowed in case of grant of additional FSI.
Letter dated 07.05.2008 from the CIDCO to the Town planner clarified that despite the fact that no FSI was permissible on plot no. 36B, A.V. Kadam, then Estate officer, without approval from the ACTE of CIDCO made false endorsement under his signature so as to allow Tunga to construct on the plot no. 36B.
16 Internal note of the NMMC dated 25.04.2011 mentioned that FSI 2.00 was not permissible to plot no. 36B and also the arrangement of parking cars allowed in one plot cannot be made available in a different plot. The note is signed by the NMMC commissioner. This note was prepared before the issue of commencement certificate. Thus, according to the petitioner the parking spaces as per the Regulations are needed to be provided in the same plot and not in different plot. Thus it is argued that allowing the construction of podium to Tunga Hotel was contrary to D.C. Rules and regulations.
17 On behalf of the Respondent No.4 Hotel Tunga it is submitted that Respondent No.4 is a reputed chain in the Hotel Industry and wanted to set up a Star Category Hotel in Navi Borey 23/41 ::: Downloaded on - 09/06/2013 19:45:38 ::: spb/ pil132-11jt.sxw Mumbai. Thus in pursuance to the communication with CIDCO, Tunga had participated in the bid for allotment of plot no. 37 on 12.02.1999 and had entered into agreement of lease on 11.02.2000. On 07.09.2004, the building plans were approved by the NMMC for Star category project and construction of the hotel was completed in December, 2003. On or about 18.11.2004, the Respondent No.4 Tunga was allotted plot no.
36B for beautification and parking of public vehicles on BOT basis for a period of 15 years. Plot No. 36-B, it is claimed, is not a reserved plot for public parking but after carrying out the beautification by spending more than 1.25 crores on the said plot, CIDCO had permitted Tunga on 10.03.2005 to park their visitors and clients vehicles in the plot no.36-B. On 14.10.2005, the State Government issued a notification to amend existing GDCRS. Thereafter on 23.06.2006 amended building plan was approved for the construction of additional 0.5 FSI on the plot no. 37 which was consumed and construction was completed. On 21.09.2006 the NMMC granted occupation certificate for the entire building. The Petitioner had filed PIL No. 43 of 2009 and prayed for issuance of statutory directions to revise the requirement of parking in Borey 24/41 ::: Downloaded on - 09/06/2013 19:45:38 ::: spb/ pil132-11jt.sxw the NMMC considering the needs of the area. Thereafter, the NMMC was directed by this Court to consider suggestions made by the Petitioner and to forward their recommendations for appropriate remedial measures to the State Government for increasing the parking spaces in the areas. The State Government wrote a letter to NMMC and CIDCO, directing them that Tunga shall provide captive parking at the stilt level on plot no. 36B and for the balance parking spaces required after providing space for 59 car parkings on plot no. 37. Thus on plot no. 36B an additional parking was created at the stilt level. Thus according to Mr. Suresh Babu the remedial measures for increasing public parking spaces were taken pursuant to the meeting with the Principal Secretary, UDD of the State Government. Instructions were also given to the NMMC and CIDCO, pursuant to which on 19.03.2010, fresh plans were submitted by Tunga. The NMMC's permission was granted to Tunga for construction of Podium and for providing additional parking slots. Plot No. 36B was thus allotted to Respondent No.4-Tunga on BOT basis. Thus there is no prohibition for parking of private vehicles on plot no. 36B and the CIDCO as well as the State Government have permitted the Borey 25/41 ::: Downloaded on - 09/06/2013 19:45:38 ::: spb/ pil132-11jt.sxw same, taking into consideration the Tourism Policy of the State Government. Further, it is not in dispute that Plot No. 37 was separated from plot no. 36B by a road. In earlier PIL No. 43 of 2009 and PIL No. 260 of 2010, remedial measures were directed for increasing the available public parking, pursuant to which a public parking came to be provided. Thus after construction of Podium on Plot No. 36B, 176 car parking slots have been provided and public is using the same. Therefore, no illegality is committed by Tunga, as necessary compliances were made after obtaining all the requisite permissions from the concerned authorities.
18 The grievance of the Petitioner is that Tunga Hotel could not have been granted concession to construct podium as Car Parking slots on Plot No. 36B without any legal process to allot the said plot. According to the Petitioner no public authority or State instrumentality like CIDCO could have entered into leave and license agreement with Tunga Hotel having taken steps to accept the bids from members or public and to select rightful bidder in accordance with the tender process for construction of podium and parking slots at plot no. 36B.
Borey 26/41 ::: Downloaded on - 09/06/2013 19:45:38 :::spb/ pil132-11jt.sxw Without following due tender process, no agreement could have been entered into with Tunga Hotel. According to Regulation 44, for visitors' parking it cannot be in any other plot because it specifies open space around the building may be used for parking and loading and unloading provided for the parking stated in the same plot. This loading and unloading can be done only if the parking is in the same plot in which the building/ built up areas is located. It is the grievance of the Petitioner that Tunga was favoured, as a result of some official from the CIDCO involved in a forgery.
19 The Petitioner has justly made reference to the ruling in Saroj Screens Pvt. Limited Vs. Ghanashyam and others in C.A. Nos. 3107-3108 of 2012 decided by Hon'ble Supreme Court on 26.03.2012, reported in AIR 2012 SC 1649 = 2012 (4) Scale
25. Regarding discretion to renew lease and sanction accorded by the State Government under Section 70(5) of the City of Nagpur Corporation Act, 1948 following observation is made in Paras 10 and 11 of the ruling :
"10. Though, the exercise of power by the Corporation under the aforesaid section is not hedged with any particular condition except that in a case like the present one, the alienation could not have been Borey 27/41 ::: Downloaded on - 09/06/2013 19:45:38 ::: spb/ pil132-11jt.sxw made without the previous sanction of the State Government, but in our constitutional scheme compliance of the doctrine of equality enshrined in Article 14 of the Constitution has to be read as a condition precedent for exercise of power by the State Government and the Corporation, more so, when it relates to alienation of public property or any right or interest therein. In this context, it is necessary to emphasis that the Corporation holds the property as a trustee of the public and any alienation of such property or any right or interest therein otherwise than by way of auction or by inviting bids would amount to breach of that trust.
11. The concept of the 'State' as it was known before the commencement of the Constitution and as it was understood for about two decades after 26.1.1950 has undergone drastic change in recent years. Today, the State cannot be conceived of simply as a coercive machinery wielding the thunderbolt of authority. Now the Government is a regulator and dispenser of special services and provides to the large public benefits including jobs, contracts, licences, quotas, mineral rights etc. The law has also recognised changing character of the governmental functions and need to protect individual interest as well as public interest. The discretion of the Government has been held to be not unlimited. The Government cannot give or withhold largesse in its arbitrary discretion or according to its sweet-will. The Government cannot now say that it will transfer the property (land etc.) or will give jobs or enter into contracts or issue permits or licences only in favour of certain individuals."
(emphasis supplied) 20 Petitioner arguing in person thus contended that Starred category private hotels cannot be favored so as to be allowed to have reservation facility or additional car parking spaces outside its plot of land, in a reserved public parking space. If starred category Hotel got additional 2.00 FSI instead of 1.5 it should have made adequate parking accommodation Borey 28/41 ::: Downloaded on - 09/06/2013 19:45:38 ::: spb/ pil132-11jt.sxw within limits of permissible FSI and in the compound of the Hotel Building itself. In addition, the Petitioner has placed reliance on the ruling in Manohar Joshi Vs. State of Maharashtra and others reported in (2012) 3 SCC 619. Relevant observation is made thus :
"The spaces for public amenities such as roads, playgrounds, markets, water supply and sewerage facilities, hospitals and particularly educational institutions are essential for a decent urban life. The planning process therefore assumes significance in this behalf. The parcels of land reserved for public amenities under the urban plans cannot be permitted to be tinkered with. The greed for making more money is leading to all sorts of construction for housing in prime city areas usurping the lands meant for public amenities wherever possible and in utter disregard for the quality of life. Large number of areas in big cities have already become concrete jungles bereft of adequate public amenities. It is therefore, that we have laid down the guidelines in this behalf which flow from the scheme of the MRTP Act itself so that this menace of grabbing public spaces for private ends stops completely. We are also clear that any unauthorized construction particularly on the lands meant for public amenities must be removed forthwith. We expect the guidelines laid down in this behalf to be followed scrupulously." (emphasis supplied)
21 What needs to be noted and stressed with reference to the above rulings is that the State and/or its agencies/ instrumentalities cannot give largesse to any person according to their sweet will as per the whims of the political entities and/or officers of the State concerned. Every action/decision of the State Borey 29/41 ::: Downloaded on - 09/06/2013 19:45:38 ::: spb/ pil132-11jt.sxw and/or its agencies/instrumentalities to give largesse or to confer benefit must be founded on a sound, transparent, discernible and well-defined policy, which shall be made known to the public by publication in the Official Gazette and other recognized modes of publicity and such policy must be implemented/executed by adopting a non-discriminatory and non- arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit, license, etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and in accordance with law and rules and regulations applicable. The element of favoritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State.
22 We must hasten to emphasize the legitimate expectation that the policy made by the State or by any of its instrumentality must be a rational policy more particularly while allotting use of the public land on the basis of applications made by individuals, bodies, organizations or institutions recognized by law to follow the due process of an invitation or advertisement by Borey 30/41 ::: Downloaded on - 09/06/2013 19:45:38 ::: spb/ pil132-11jt.sxw the State or its agency/instrumentality. By entertaining applications made by individuals, organizations or institutions for allotment of land or for grant of any other type of largesse, the State cannot exclude other eligible or qualified persons from competing claim to an estate or legal right to be allotted on behalf of the State or its instrumentality. Any such allotment of land or grant of other form of largesse by the State or its agencies/instrumentalities by treating it as a private business enterprise is liable to be treated as arbitrary, discriminatory and an act of favoritism and/or nepotism violating the soul of the equality clause embodied in Article 14 of the Constitution.
23 Adverting to the public interest expressed in this Petition, we are considering the contemporary ground realities.
To possess or to have a Car is necessity at present times for speedy and convenient private conveyance to pursue one's profession, vocation or trade. It is no longer a status symbol of yester years. The problems of car parking has posed tricky and very complicated questions in areas of any thickly populated City.
The number of cars are increasing day by day. Whether it is parking on the public road or at public places or in the Borey 31/41 ::: Downloaded on - 09/06/2013 19:45:38 ::: spb/ pil132-11jt.sxw compounds of residential hotel buildings or housing societies, the problem is assuming a greater dimension day-by-day. The building bye-laws and development control rules for the Municipal Corporation refers to the various provisions regarding the parking spaces. It refers to what way the parking space can be provided to the multi-storied residential or commercial building as well as to the lodging, hotel establishment, touring home, and hotels etc. as commercial establishment.
24 In our view, scarcity of common parking spaces in urban areas is becoming acute and has posed serious problems to sustainable transport system. Local public and planning and development authority need to act responsibly for transportation reforms, to solve the severe problem of mobility in city areas, shortage of car parking spaces. The local planning authority ought to set the standards for car parking and parking related problems. When common motor vehicles parking facility parking premises belong to Public authority there is legitimate expectation that the there would be orderly scheme in place to ensure against any misuse of common amenities and to reduce the traffic chaos in cities. Transparent and Fair distribution of user of common Borey 32/41 ::: Downloaded on - 09/06/2013 19:45:38 ::: spb/ pil132-11jt.sxw parking spaces in city is essential. In densely populated cities parking car spaces can be made available at reasonable hourly, daily or periodical license charges payable as consideration to the public authority, for obtaining written or computerized parking vehicle pass. The charges collected would help the public authority concerned to utilize the same for proper maintenance of the reserved parking premises for fair use and benefit of members of general public and for payment of salaries to the parking attendees and beautification of the area. The local public authority by maintaining parking spaces can help itself to prevent spill over of motor vehicle to the roadsides causing inconvenience and nuisance to the resident in the neighborhood areas.
Congestion of vehicles on the roadside and on the streets can be substantially reduced. Private vehicle owners would not mind paying modest costs for common benefit of parking. At the same time, rich private commercial establishments cannot be allowed free, iniquitous and unrestricted use by illegal parking or encroachment on public land reserved and to be used as common amenity for shared parking of motor vehicles. Reserving Personal parking spaces should be discouraged in shared, public and common parking premises. Common and shared parking for Borey 33/41 ::: Downloaded on - 09/06/2013 19:45:38 ::: spb/ pil132-11jt.sxw the benefit of general public must be encouraged. Efficient and well managed and regulated, preferably computer aided car parking scheme is necessary in urban environment. In our opinion, proficient steps ought to be taken by the State Authorities concerned to maximize the potential of public car parking in the densely populated city or town areas, by resorting to the computerized management system for convenient vehicle parking with adequate and prompt attendees. This can prevent massive mess of motor vehicles on public streets endangering smooth, sustainable traffic in greater cities like Mumbai.
25 What needs to be perceived in the case in hand is that reserved open ground space reserved for public parking-plot on which no FSI was permissible, could not have been selectively licensed like a private venture for allowing a private hotel establishment raising construction of the building and other structure like podium more particularly so in violation of D.C. Regulations of the municipal laws by the Authority, entrusted with the planned development of the Vashi area of Navi Mumbai.
Greater care and caution is required to be taken by the municipal authorities in such cases to scrupulously implement building and Borey 34/41 ::: Downloaded on - 09/06/2013 19:45:38 ::: spb/ pil132-11jt.sxw development control Regulations because extraneous considerations in public services may not only affect planned development of the city but also affect fundamental and constitutional rights of other persons to enjoy the life with assured personal liberty. The citizen feels cheated and embittered when he finds that those making illegal and unauthorized constructions for their selfish and profiteering intent obtain unfair advantage and escape the legal effect of the misdeed as they have tacit support of the very people who are entrusted with the duty of preparing and executing development plan.
26 Reverting to the core controversy, it is indisputable that there is material to indicate that Tunga hotel has violated the requirement of D.C. Regulation 44 by not providing adequate number of parking spaces proportionate to the built-up area, in particular, with reference to FSI 2 of plot No.37. There is obviously deficit in the number of parking spaces, provided in plot No.37, which the owner of the plot was obliged to maintain as per the said Regulation. This deficiency may result in breach of maximum permissible FSI norm qua plot No.37. That factual position will have to be examined by the NMMC, notwithstanding Borey 35/41 ::: Downloaded on - 09/06/2013 19:45:38 ::: spb/ pil132-11jt.sxw the fact that Occupation and / or Completion Certificate has been granted to the said respondent - which obviously has been granted on the basis of mistaken and manipulated figures mentioned in the NMMC record. There is no provision, at least brought to our notice, which permits transferring of deficit parking spaces, required to be provided in the given plot as per the D.C. Regulations, to some other plot. Thus understood, the deficit number of parking slots provided in plot No.37 belonging to the respondent Tunga Hotel, will have to be remedied by the said respondent and it is the bounden duty of the Municipal Authorities to ensure that that position is restored on plot No.37 at the earliest. No provision has been brought to our notice which may permit condonation of this requirement. As aforesaid, these matters will have to be reworked and reexamined by the Municipal Authorities and to be approved by the State Government, if necessary.
27 In the present case, it is not only matter of deficiency in providing sufficient number of parking slots in the plot belonging to respondent Tunga Hotel; but also transferring almost equal number of deficit parking spaces to plot No.36B reserved for Borey 36/41 ::: Downloaded on - 09/06/2013 19:45:38 ::: spb/ pil132-11jt.sxw public parking, as captive parking spaces for the respondent Tunga Hotel. It is also a case of no charges recovered from Tunga Hotel for allowing such captive parking spaces for the Hotel in Plot No.36B. As a matter of fact, Plot No.36B, which is otherwise reserved for public parking spaces, in the light of dispensation permitted by the NMMC, is, and will be under the control of respondent Tunga Hotel for its captive parking spaces.
The fact that the Leave and License Agreement entered with Tunga Hotel obliges Tunga to beautify the said plot, is only an eye-wash. In that, in the guise of beautification of the plot, the entire plot No.36B is presently enjoyed as annexe of the Hotel, thereby, virtually making it integral part of the Hotel complex except the road separating the two plots. Whether it may be possible for the NMMC to give up its claim of charges for parking of vehicles in Plot No.36B belonging to the visitors/customers of Hotel, for the relevant period, is a matter to be examined by the said Authority on the basis of the extant Policy and Regulations.
Further, the NMMC will be obliged to ensure that all the parking spaces in Plot No.36B are made available to public, being reserved for public parking spaces, at the earliest, after directing the respondent hotel to vacate the captive parking spaces from Borey 37/41 ::: Downloaded on - 09/06/2013 19:45:38 ::: spb/ pil132-11jt.sxw Plot No.36B and by providing equal number of parking spaces in Plot No.37 and in particular, consistent with the requirement of Regulation 44.
28 The last aspect which needs to be dealt with is about the criminal action initiated on the basis of complaint filed with CBD Belapur Police Station regarding forgery, favouritism, fraud etc. against the then Estate Officer of CIDCO and including the owner of plot No. 37. We have been informed that the investigation of the said case has been entrusted to senior police official. We hope and trust that honest, sincere and fair investigation of the said case will be done by the said investigating agency in larger public interest and to be taken to its logical end in accordance with law. The periodical investigation status report must be filed in this Court as and when directed by the Court.
29 Considering the above, we are inclined to issue directions to the Competent Authority of NMMC to examine and scrutinise all aspects of the matter referred to above, be it regarding violation of D. C. Regulation 44 or of permissible 2 FSI norm or for that matter, to recover charges from the Respondent Tunga Borey 38/41 ::: Downloaded on - 09/06/2013 19:45:38 ::: spb/ pil132-11jt.sxw Hotel, for using portion of the public parking area for the requirements of the hotel. Those matters be considered after giving due opportunity to all concerned and then to issue directions, as may be warranted in the situation.
30 We could have disposed of the Petition finally but, after the decision of the Competent Authority of NMMC, this Court can consider the substantive relief prayed in this PIL to cancel the development permission given to Respondent No. 4, which is in violation of the statutory provisions and the extant regulations and also to cancel the Leave and Licence agreement regarding public parking space in respect of plot No. 36B. The Competent Authority shall examine the matter and submit its report in this regard within eight weeks. Needless to mention that the Competent Authority of NMMC may test the validity of all the permissions granted in favour of Respondent No. 4 hotel hitherto, keeping in mind the accepted fact by NMMC about the existence of fraudulent documents created to give an impression that permission to transfer the parking spaces required to be provided in plot No. 37 to public parking spaces in plot No. 36B or such other ground, as may be permissible and available in that regard.
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31 In view of the above, we pass the following order:
(a) The Competent Authority of NMMC to consider all aspects referred to in this judgment and including the nature and magnitude of the unauthorised construction in the plots in question i.e. plot Nos. 37 and 36B respectively.
It shall take specific decision on all those points and including regarding retention or demolition of the unauthorised portion or any part thereof. The Competent Authority of NMMC will take that decision strictly in accordance with law by following the principles of natural justice by giving opportunity to all concerned including the petitioner herein and submit its decision to this Court within eight weeks from today.
(b) The Respondents, in particular Respondent No. 4 shall co-operate in the said inquiry to be conducted by the Competent Authority of NMMC in terms of this order.
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(c) The matter be notified on 13th June, 2013 under caption "Direction" for consideration of the action taken report to be submitted by the Corporation.
(d) However, for consideration of progress report of investigation of the criminal case, the matter be notified on 18th April, 2013.
(A.P. BHANGALE,J.) (A.M. KHANWILKAR,J.)
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