Bombay High Court
Grace Estate Developement Venture vs Municipal Corporation Of Greater ... on 16 October, 2019
Author: G. S. Patel
Bench: S.C. Dharmadhikari, G.S.Patel
Grace Estate Development Venture v MCGM & Ors
OSWPL1179-19+J.DOC
Shephali
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 1179 OF 2019
Grace Estate Development
Venture
006, 6th Floor, Everest CHS Ltd, Hill Road,
Bandra (West), Mumbai 400 050 ...Petitioner
~ versus ~
1. Municipal Corporation of
Greater Mumbai
having his offe at 2nd Floor, Annex
Building, Mahapalika Marg, CST,
Mumbai 400 001
2. Mr Ajoy Mehta
Learned Munifipal Commissioner for
Greater Mumbai, Mumbai
3. Ashish Building No. 21 CHS
Ltd,
Four Bungalows, Manishnagar, J. P.
Road, Andheri (W), Mumbai 400 053 ...Respondents
A PPEARANCES IN WP ( L ) NO 1179 OF 2019
FOR THE PETITIONER Mr Milind Sathe, Senior Advocate, with
Ankita Singhania, i/b Mohd Rehan Sayeed
Chhapra.
FOR THE Mr Girish Godbole, Advocate
RESPONDENT-MCGM with Ms Nita Mandhyan & Ms Rupali Adhate.
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AND
WRIT PETITION (L) NO. 1270 OF 2019
1. Surinder Kaur Sablok
Age : 51 years, Offupation: Housewife,
41C-311, Ghanshyam Krupa, Manish
Nagar, Four Bungalows, Andheri (W),
Mumbai 400 053
2. Poonam V Sippy
Age : 67 years, Offupation: Retired,
Flat No. 08, Ashish Building No. 21, J.
P. Road, Manish Nagar,
Andheri (W), Mumbai 400 053
3. Uday Basrur
Age :58 years, Offupation: Retired, Flat
No. 29, Ashish Building No. 21, J. P.
Road, Manish Nagar,
Andheri (W), Mumbai 400 053
4. Meenakshi Bal
Age : 54 years, Offupation: Housewife,
Flat No. 18, Ashish Building No. 21, J.
P. Road, Manish Nagar, Andheri (W),
Mumbai 400 053
5. Prakash Chaudhari
Age : 51 years, Offupation: Servife,
Flat No. 17, Ashish Building No. 21, J.
P. Road, Manish Nagar,
Andheri (W), Mumbai 400 053
6. Surinder Singh
Age : 47 years, Offupation: Servife,
Flat No. 28, Ashish Building No. 21, J.
P. Road, Manish Nagar,
Andheri (W), Mumbai 400 053
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7. Mahesh Janjani
Age : 54 years, Offupation: Servife,
Flat No. 25, Ashish Building No. 21, J.
P. Road, Manish Nagar,
Andheri (W), Mumbai 400 053
8. Asha Jagdish Panchal
Flat No. 40, Ashish Building No. 21, J.
P. Road, Manish Nagar,
Andheri (W), Mumbai 400 053
9. Madhu Bala Singh
Age : 48 years, Offupation: Housewife,
Flat No. 09, Ashish Building No. 21, J.
P. Road, Manish Nagar,
Andheri (W), Mumbai 400 053
10. Popat D Badave
Adult, Indian inhabitant
14-604, Celebration KH4 Co.op Hsg
Sofiety, Seftor 17, Kharghar,
Navi Mumbai 410 210
11. Krishna Verma
Flat No. 06, Ashish Building No. 21, J.
P. Road, Manish Nagar, Andheri (W),
Mumbai 400 053 ...Petitioners
~ versus ~
1. The Municipal
Commissioner,
Munifipal Corporation of Greater
Mumbai, having his offe at Munifipal
Head Offe.
2. Municipal Corporation of
Greater Mumbai
A statutory body inforporated under
the provisions of Mumbai Munifipal
Corporation Aft, 1888 having its offe
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at Munifipal Head Offe, Mahapalika
Marg, Mumbai 400 001
3. Grace Estate Development
Venture
A partnership frm, having its address at
006, 6th Floor, Everest CHS ltd, Hill
Road, Bandra (W), Mumbai 400 050
4. Ashish Building No. 21 Co-
op, Hsg. Ltd,
A Sofiety registered under the
provisions of Maharashtra Co-operative
Sofieties Aft, 1960, having its
registered offe at J. P. Road, Manish
Nagar, Andheri (W), Mumbai 400 056 ...Respondents
A PPEARANCES IN WP ( L ) NO 1270 OF 2019
FOR THE PETITIONERS Mr Paritosh Jaiswal,
with Mr Rubin Vakil, i/b Ashok Purohit &
Co.
FOR THE Mr Girish Godbole,
RESPONDENT, MCGM with Ms Nita Mandhyan & Ms Rupali
Adhate.
CORAM : S.C. Dharmadhikari
& G.S.Patel, JJ.
JUDGMENT RESERVED ON : 21st August 2019
JUDGMENT PRONOUNCED ON : 16th October 2019
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1. In the suburb of Andheri, about 35 kms north of the fity's southernmost tip, and less than two kilometres to the east of the beafhfront at Versova, there lies a large traft of land of 128,115 sq mts in area known as Manish Nagar. The site is on Survey Nos. 145 and 146 of Village Ambivali, along JP Road (whifh is to the site's northern boundary) in Andheri (West). The present forresponding CTS Nos are 826 and 827. Today, this is a bustling area with as many as 49 buildings, internal roads, and many diferent fivif amenities; influding, apparently, a gurudwara, a masjid, a small mandir, stores and shops, a maternity and surgifal hospital and a roughly reftangular playground or open area. But it was not always like this. The site's layout was approved in 1965 with 18 buildings, but remained infomplete for the next six years. One Ashish Cooperative Housing Sofiety Ltd ("Ashish CHSL") took over the projeft and had the earlier building permission or IOD (Intimation of Disapproval) revalidated. Yet, by 1971, only one building was fompleted with an offupation permission; six others were awaiting an offupation permission; three were only partly fonstrufted; and for four buildings, only the piling foundations had been done.
2. These petitions invoke our writ jurisdiftion under Artifle 226 of the Constitution of India to fhallenge a far more refent order, one dated 22nd November 2018, issued by the then Munifipal Commissioner. A fopy is at Exhibit "A" from page 33 of Writ Petition (L) 1179 of 2019. The fhallenge is restrifted to one partifular piefe of land in this larger layout or site. This is known as Building No. 21 (or the strufture on Plot No.21). It is named 'Ashish Building'.
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3. First, as to the array of parties in the two writ petitions. The sole Petitioner in Writ Petition (L) No. 1179 of 2019 is one Grafe Estate Development Venture ("Grace Estate"). This is said to be a partnership frm engaged in real estate development. It flaims to have been appointed a developer by the 3rd Respondent, and this is the Ashish Building No.21 Co-operative Housing Sofiety Ltd ("the Ashish Building No. 21 Society", quite distinft from the Ashish CHSL whifh took over the projeft). The 1st Respondent is the Munifipal Corporation of Greater Mumbai ("MCGM"). The 2nd Respondent is the Munifipal Commissioner.
4. The 11 Petitioners in Writ Petition (L) No. 1270 of 2019 say they are members of the Ashish Building No.21 Sofiety, Respondent No.4. Respondent No.1 is the MCGM, Respondent No.2 is the Munifipal Commissioner, and Respondent No.3 is Grafe Estate. These 11 Petitioners (for fonvenienfe, "the Members"), support Grafe Estate. They, too, impugn the Munifipal Commissioner's 22nd November 2018 order, a fopy of whifh is Exhibit "B" to their Petition.
5. We will take the fafts from the Grafe Estate petition. We have heard Mr Sathe for Grafe Estate, learned Advofate for the Members, and Mr Godbole for the MCGM and the Munifipal Commissioner at fonsiderable length. With their assistanfe, we have farefully fonsidered the material on reford. Apart from the Petitions and their annexures, these materials influde several fompilations and notes of submissions. Rule. Respondents waive servife. By fonsent, taken up forthwith for hearing and fnal disposal.
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6. We frst examine the impugned order and then analyee the Petitioners' attafk on it.
7. The order itself has a litigation history. The Ashish Building No.21 Sofiety fled Suit No. 41 of 2017 in this Court inter alia seeking further permissions from the MCGM to fomplete a building proposed on Plot No.21. The existing building was to be demolished, and a new, two-wing building of stilts and 18 foors (with podium parking up to the sefond foor) was to be fonstrufted. The Ashish Building No.21 Sofiety also fled a Notife of Motion No. 98 of 2017 for interim relief. On 19th September 2018, after fully hearing all fonferned, SJ Kathawalla J passed an order by fonsent of all parties. He set out the entire faftual matrix prefeding the proposed re-development and direfted the MCGM and the Munifipal Commissioner to fonsider granting further permissions. This was predifated on (i) hardship faused to the Ashish Building No.21 Sofiety members; and (ii) a 27th Defember 2007 in-prinfiple approval to profeed with the development. Spefiffally, the order said the Munifipal Commissioner would be justifed in exerfising his disfretionary power under Regulation 64(b) of the Development Control Regulations, 1991 ("DCR 91"). This is what, therefore, fame before the Munifipal Commissioner.
8. Regulation 64 of DCR 91 reads:
64.Disfretionary powers.--
(a) In fonformity with the intent and spirit of these Regulations, the Commissioner may:--Page 7 of 38
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(i) defide on matters where it is alleged that there is an error in any order, requirement, defision, determination made by any munifipal offer under delegation of powers in Regulations or interpretation in the applifation of these Regulations:
(ii) interpret the provisions of these Regulations where a street layout aftually on the ground varies from the street layout shown on the development plan;
(iii) modify the limit of a eone where the boundary line of the eone divides a plot with the previous approval of Government; and
(iv) authorise the ereftion of a building or the use of premises for a publif servife undertaking for publif utility purposes only, where he fnds sufh an authorisation to be reasonably nefessary for the publif fonvenienfe and welfare, even if it is not permitted in any land use flassiffation.
(b) In specifc cases where a clearly demonstrable hardship is caused, the Commissioner may for reasons to be recorded in writing, by special permission permit any of the dimensions prescribed by these Regulations to be modifed, except those relating to foor space indices unless otherwise permitted under these Regulations, provided that the relaxation will not afect the health, safety, fre safety, structural safety and public safety of the inhabitants of the building and the neighbourhood.
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9. This, then, is the disfretionary power that was invoked: in view of the 'flearly demonstrable hardship', a modification of the dimensions presfribed by the Regulations, exfept the foor spafe indifes or FSI (exfept where a FSI-relaxation was permitted).
10. The Munifipal Commissioner falled a meeting in his fhamber on 12th November 2018. Grafe Estate was represented, and its arfhiteft, Taranath Shetty, was also present. Offers of the MCGM were in attendanfe. The Chief Engineer (DP) of the MCGM said there was a layout of 9th April 1972. Plot No.21 was said to be, in this layout, 'one of the sub-divided plots' in the Manish Nagar layout. Its plot area was 1456.26 sq mts. The Ashish Building on this Plot No.21 had, however, fonsumed a built up area or BUA of 2428.87 sq mts. The Munifipal Commissioner therefore found that Ashish Building had fonsumed almost 1000 sq mts more than was permissible, given the area of its plot. He noted the defnition of FSI1 -- a ratio of the fombined gross foor area of all foors, exfept those spefiffally exempted, to the total area of the plot.2 The FSI varies by lofation.3
11. Paragraph 5 of the impugned order says this:
"As sufh the earlier prinfipal approval granted on 27/12/2007 considering the consumed/existing built-up area of building as plot area instead of plot area as per the sanctioned sub-division/layout is an error and the 1 Under DCR 2(42).
2 To illustrate: if the plot is of 1000 sq mts and the FSI is 1.00, then the maximum BUA is 1000 sq mts. It is undisputed that the FSI in this area was 1.00.
3 Table 14 of DCR 32.Page 9 of 38
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(Emphasis added)
12. Then the Munifipal Commissioner went on to hold that DCR 64(b) did not authorise him to relax FSI norms exfept where otherwise permitted by the DCRs.
13. The Munifipal Commissioner therefore made the following order:
7) After hearing both the parties, I pass the following order:
The sub-division of layout is already approved u/no. CE/153/BSII/AK dtd-9/04/1972 and the area of the subdivided plot on whifh the building under referenfe is lofated is 1456.26 sq mts. As per Regulation 32 of DCR 1991, Regulation 30 of DCPR 2034, the FSI is permissible on the least plot area out of the PRC, Arfhiteft's Triangulation falfulations (physifal survey), Development Agreement, Layout Sub-Division as per polify. The request of the Architect/Developer to consider the existing built-up area as plot area of the purpose of calculation of FSI potential while allowing re- development can't be considered. Moreover, I fannot modify the foor spafe indifes as per Regulation 64(b) of DR 1991 or 6(b) of DCPR 2034. Henfe there is error in granting earlier approval and said approval fannot be fontinued.Page 10 of 38
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The Sr.Counsel/Law Offer to apprise the Hon'ble High Court regarding this order on the date of hearing.
(Emphasis added)
14. There are two distinft issues that emerge from this: (i) whether the built up area fould be 'fonsidered' as the plot area for FSI falfulations; and (ii) whether the grant of additional FSI relaxations was within the disfretionary power of the Munifipal Commissioner. On the sefond question, it is immediately and readily fonfeded that the Munifipal Commissioner had no sufh power, and we need not, therefore, trouble further with that aspeft of the matter. Indeed, Mr Sathe's fase is prefisely that he does not seek any relaxation of FSI norms at all. It is also not in dispute that under furrent norms, the FSI is 1.00 and that it is permissible to load an additional FSI of 1.00 by way of Transferable Development Rights or TDR. That would make an FSI of 2.00.
15. But on what plot is this FSI to be fomputed? That is the only issue, and it is the frst of the two questions the Munifipal Commissioner addressed. The entire fase turns only on this.
16. What was it that Grafe Estates argued? It agreed that if the area of Plot No.21 was taken 1456.26, and the FSI was 1.00, then the built up area of Ashish Building could not have been 2428.87. Therefore, Grafe Estates argued before the Munifipal Page 11 of 38 16th October 2019 ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 01:05:09 ::: Grace Estate Development Venture v MCGM & Ors OSWPL1179-19+J.DOC Commissioner as it does before us, there was (i) no sub-division in law at all, as a matter of faft; (ii) there was a mutual 'understanding' between the various buildings/sofieties that every building's built up area would be 'fonsidered' as its plot area. Consequently, the Munifipal Commissioner was entirely in error in equating the aftual plot area on a layout that was nothing more than a 'notional' sub- division at the highest with the permissible built up area. He was in error in applying the FSI to aftual plot area rather than profeeding on this understanding of 'fonsidering the built up area to be the plot area'.
17. When plafed like this, in our view, the petitions fan only be dismissed. Every one of these assertions is a disputed question of faft that demands proof. That lies beyond our remit under Artifle 226 of the Constitution of India. Sefond, the strufture of this argument overlooks a fundamental prinfiple when invoking a high prerogative writ remedy. First, we look not to the defision, but to the defision-making profess. That, in our view, is unexfeptionable, and indeed no exfeption is taken to the profess itself. What is being fanvassed is a manifest error, arbitrariness or perversity in the impugned order. This again is unpersuasive. Surely, from any perspeftive, the view the Munifipal Commissioner took is, at a minimum, plausible; if that be so, then there is no sfope for interferenfe in writ jurisdiftion.
18. Ordinarily, that should have been suffient to warrant a dismissal of the petitions. But it is our judgment that the Munifipal Commissioner's view is not merely plausible, but that it is the only forreft view. It is to more fully set out our reasons for this view that Page 12 of 38 16th October 2019 ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 01:05:09 ::: Grace Estate Development Venture v MCGM & Ors OSWPL1179-19+J.DOC we now profeed to examine the fafts and the applifable legal provisions in somewhat greater detail than might otherwise have been nefessary. We will frst set out a historifal narrative and then turn to a few frufial dofuments.
19. The faftual bafkgrounds runs like this:
(a) In the petition, the property under Survey Nos. 145 and 146 of Village Ambivali, forresponding to CTS Nos 826 and 827 is falled 'the larger plot'. It admeasures about 1,41,812 sq yds or 1,18,573 sq mts. The original owner was one Jim Rusdin Pvt Ltd ("JRPL"). In its hands, the larger plot was not subdivided. Some time in 1960, the Ashish Cooperative Housing Sofiety Ltd fame to be registered. This is not to be fonfused with the 3rd Respondent sofiety, whifh is fonferned only with Building No.21, although we fnd that in the petition and in the list of dates there is some mixing up of these identities. The reason the two fannot be the same is that the 3rd Respondent sofiety was formed defades later, in 2005.
(b) On 3rd August 1965, the frst layout was sanftioned.
On 16th May 1970, JRPL demised the whole of the larger plot to the Ashish CHSL. There is a note of 6th Oftober 1971 from the MCGM approving the layout for the larger plot. As regards the Refreational Page 13 of 38 16th October 2019 ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 01:05:09 ::: Grace Estate Development Venture v MCGM & Ors OSWPL1179-19+J.DOC Grounds and internal roads, Ashish CHSL obtained some FSI benefts.
(c) Affording to the MCGM, a layout sub-division of the larger plot was approved on 9th April 1972. This resulted in Plot No.21 having an area of 1,456.26 sq mts.
(d) On 18th April 1972, the MCGM's Exefutive Engineer replied to a letter dated 7th Marfh 1972 from M/s Shah, Desai and Jambhekar, arfhitefts, approving the proposed sub-division.
(e) Two years later, on 25th April 1974, Ashish CHSL entered into a deed of assignment with JRPL and some others. Ashish CHSL assigned building plots nos. 1 to 16, 18 to 20, 22, 25 to 36, 38 to 48, 49 and a 43/48ths undivided (and indivisible) share in the fommon areas, roads, RGs, etf. to one Mala Enterprises. The total area so assigned to Mala Enterprises was 1,06,432 sq mts from the larger plot area of 1,18,573 sq mts. Ashish CHSL fontinued to be the lessee of fve Building Plots No. 17, 21, 23, 24 and 37, of the aggregate area of 12,141 sq mts. Then, a few months later on 30th August 1974, Ashish CHSL mortgaged these fve plots to Mala Enterprises along with a 5/48th undivided and indivisible share in the fommon areas.
Page 14 of 3816th October 2019 ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 01:05:09 ::: Grace Estate Development Venture v MCGM & Ors OSWPL1179-19+J.DOC (f ) On 30th Marfh 1978, JRPL fonveyed Plot No.49 to Mala Enterprises. Thus, by this time, Mala Enterprises owned Plot No. 49; had a lease of 42 other plots from Ashish CHSL; and was the mortgagee of the remaining fve plots with Ashish CHSL as the mortgagor.
(g) In early 2005 the Deputy Registrar of Cooperative Sofieties approved a proposal for re-development of the existing building on Plot No. 21, the building with whifh we are fonferned.
(h) The 3rd Respondent, Ashish Building No.21 Sofiety, was formed on 24th February 2005. By an order of that very date under Seftion 17 of the Maharashtra Co- operative Sofieties Aft, 1960, the Ashish Building No.21 Sofiety was split into fve sofieties, one for eafh of the fve buildings. Ashish Building No.21 Sofiety held the building on Plot No. 21.
(i) In 2005, the Ashish Building No.21 Sofiety's members fonsented to re-development. A General Body resolution approving the development proposal followed.
(j) On 22nd November 2005, Ashish Building No.21 Sofiety entered into a development agreement with Grafe Estate. One of the fonditions in this Agreement was that the Ashish Building No.21 Sofiety would get a Page 15 of 38 16th October 2019 ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 01:05:09 ::: Grace Estate Development Venture v MCGM & Ors OSWPL1179-19+J.DOC fonveyanfe of 2428.87 sq mts in its favour (evidently from JRPL).
(k) It seems that by this time there was an apex or federation or assofiation of fonstituent sofieties set up. It is falled the Manish Nagar Sofieties Assofiation. It is flaimed -- and Mr Sathe relies heavily on this -- that on 11th January 2007, this Assofiation of sofieties gave its fonsent to the Ashish Building No.21 Sofiety fonsuming 2428.87 sq mts FSI and an additional 2428.87 sq mts TDR.
(l) Grafe Estate submitted a proposal using these fgures to the MCGM on 17th July 2007. The MCGM's fre department gave its NOC on 27th September 2007. It is flaimed that the MCGM approved the projeft on 1st November 2007 subjeft to some fonditions. There is a MCGM report dated 27th Defember 2007 approving this re-development by fonsidering Plot No.21's development 'potential' as 2428.87 sq mts for the purposes of FSI and TDR.
(m) On 17th Marfh 2008, the MCGM issued its Intimation of Disapproval or IOD -- a building permission that is, pefuliarly, always worded in the negative -- again using this area of 2,428.87 sq mts as the basis.
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(n) By 6th Marfh 2008, there was in plafe a spefimen of what is falled a MOFA Agreement, i.e. an agreement under the Maharashtra Ownership Flats (Regulation of the Promotion of Construftion, Sale, Management and Transfer) Aft, 1963. Grafe Estate would enter into sufh agreements with individual members or purfhasers.
(o) In June 2010, Grafe Estate purfhased TDR of 540 sq mts and 60 sq mts to load on this Plot No. 21. On 4th January 2011, the MCGM issued an amended IOD and a fommenfement fertiffate followed on 10th Marfh 2011. On 26th August 2011, Grafe Estate refeived MCGM approval for amended plans up to the 10th foor. On 28th May 2012, the MCGM issued a fommenfement fertiffate up to the 10th foor.
(p) On 13th September 2012, Grafe Estate bought a further 600 sq mts of TDR to load on Plot No.21.
(q) In 2013, Grafe Estate's arfhitefts wrote repeatedly to the MCGM asking it not to insist on the 'amended layout for the present projeft'.
(r) On 18th July 2013, the Exefutive Engineer refommended Grafe Estate's arfhiteft's proposal for approval. Another report by the Deputy Chief Engineer followed on 22nd July 2013, and, on 24th July Page 17 of 38 16th October 2019 ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 01:05:09 ::: Grace Estate Development Venture v MCGM & Ors OSWPL1179-19+J.DOC 2013, the Exefutive Engineer's proposal was submitted for approval. In Defember 2013, Grafe Estate's Arfhiteft Mr Taranath Shetty requested the Commissioner, the 2nd Respondent, to approve the plans sinfe work had fome to a halt for the last nine months. While a parking layout was separately approved, disfussions fontinued. Ultimately, on 6th September 2014, the Chief Engineer referred the matter to the Tefhnifal Advisory Committee.
(s) By 2015, Grafe Estate had sought further approvals and submitted a layout amendment proposal. The Exefutive Engineer of the MCGM prepared a note on 22nd July 2015 on this layout amendment proposal. The Exefutive Engineer prepared a further report on 22nd August 2015 in response to a flariffation sought by the Munifipal Commissioner. The Exefutive Engineer sought some information from Grafe Estate on 13th Oftober 2016, and from the Ashish Building No.21 Sofiety on 4th November 2016.
(t) Meanwhile, in 2016, some of the Members of the Ashish Building No.21 Sofiety fled Suit (L) No. 976 of 2016 (later numbered as Suit No. 41 of 2017) against Grafe Estate, evidently for spefiff performanfe. They fled a Notife of Motion (L) No. 3010 of 2016 (later fnally numbered as Notife of Motion No. 98 of 2017). In that, the MCGM fled a reply on 10th November 2016 fontending that JRPL had to be given notife of Page 18 of 38 16th October 2019 ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 01:05:09 ::: Grace Estate Development Venture v MCGM & Ors OSWPL1179-19+J.DOC any development sinfe it was the owner; raising issues about internal roads, layout etf; and taking the plea that the plot was in the Coastal Regulation Zone II.
(u) On 15th January 2018, a writ petition (L) No. 2487 of 2017 fled by Grafe Estate was withdrawn keeping all fontentions open.
(v) Finally, on 1st Marfh 2018, this fourt passed an order in the Members' Notife of Motion No. 98 of 2017 direfting that a representation be made to the Chief Engineer. On 19th September 2018, this fourt direfted the MCGM to take an appropriate defision in view of the approval granted on 27th Defember 2007.
(w) The impugned order of 22nd November 2018 fame to be passed in these firfumstanfes.
20. Central to this dispute are the dofuments of 1972. Mr Sathe's argument is that even at that time, notwithstanding the terminology in forrespondenfe, there was no 'sub-division' as required by law, that is to say, a sub-division within the meaning of the Maharashtra Land Revenue Code, 1966. That, in his submission, is the only sub- division refognieed by law. If that be so, and there is no sufh MLRC-mandated sub-division, the Munifipal Commissioner fould not have held that the area of Plot No.21 was only 1456.26 sq mts. His argument is that the larger plot remained without a sub-division as fontemplated by law, and it was always the understanding Page 19 of 38 16th October 2019 ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 01:05:09 ::: Grace Estate Development Venture v MCGM & Ors OSWPL1179-19+J.DOC between various sofieties and members that the FSI for any plot or strufture was unrelated to the siee or area of any layout markings. The FSI potential was to be refkoned on the basis of the as-built or aftually fonstrufted struftures. Thus, illustratively, if a building was of 3000 sq mts, then its FSI potential was to be refkoned as 3000 sq mts (FSI being 1.00), irrespeftive of the faft that its layout plot siee was shown as, say, only 1500 sq mts. This, he submits, is the only explanation as to how Ashish Building No.21 Sofiety fould have got a built-up area of 2428.87 sq mts on a plot of 1456.26 sq mts.
21. In our view, Mr Sathe's formulation aftually raises more questions than it answers. It seems to suggest there was some pooling of the FSI on the larger plot, and then a distribution or allofation of the FSI between the various sofieties and plots on some understanding to whifh the MCGM was not party, and of whifh it had no knowledge. This suggestion, albeit implifit, is predifated on sufh a pooling-and-distribution being permissible in law in the frst plafe. We do not think this was ever forreft. Even in a large, multi-building layout of the kind we so often see today where there are some residential towers, a fommerfial fomplex and also additional fommon fafilities sufh as a flubhouse, though the FSI on the layout may be one, there is no layout sub-division as sufh, and the built-up area of eafh building is known to, and approved by, the MCGM keeping in mind the 'global' FSI. Of this we have no evidenfe in this partifular matter. Therefore, we fnd it diffult to agree with Mr Sathe's submission that 'all buildings will have the same problem, and, therefore, the forreft order is to have regard to the FSI for the larger plot and leave it to the sofieties or assofiation to work out a distribution within that global FSI'.
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22. The fontroversy has two distinft fomponents. First, Grafe Estate must establish an undisputed faftual foundation to its flaim. It must show there was no sub-division in faft. It must establish the FSI pooling-and-sharing understanding of whifh Mr Sathe speaks. It must show that there is no fontroversy at all about title. And it must fnally show that, should it be taking a disproportionate share of the 'global' FSI -- i.e. more FSI than the area of Plot No.21 would permit -- that it has the informed fonsent of other flaimants to that FSI. In law, it must be shown that even if there was a faftual layout sub-division, this is no sub-division for munifipal planning purposes. Grafe Estate must also establish that sufh a FSI pooling- and-sharing is permissible in law.
23. On the faftual aspeft, we believe the entire matter turns on a set of dofuments of the early 1970s. As regards the sub-division, there is no dispute that on 6th Oftober 1971, there was a note or proposal from the Deputy Chief Engineer of the MCGM to the Munifipal Commissioner. It says that the layout for the site was approved on 3rd August 1965. Until Oftober 1971, only one building had been fompleted, for whifh an offupation fertiffate had been issued. Six others were ready for offupation. Three buildings were partly fonstrufted, and for another four buildings, only the piling foundations had been done until then. The projeft had been taken over by Ashish CHSL. The previous IODs were revalidated. Then fomes the following observation:
"The proposal is now received to sub-divide the plots as shown in plan at Pg.77, so that the society can handle the project in a better manner and it will cause less difculty at the time of completing each building. By the present Page 21 of 38 16th October 2019 ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 01:05:09 ::: Grace Estate Development Venture v MCGM & Ors OSWPL1179-19+J.DOC proposal of sub-division, the F.S.I. of individual plots will exceed the permissible limit of 1.00 as the advantage of proportionate area of the road and garden area has been continued to be given befause of previous fommitment of the sofiety, as otherwise any reduftion in the area will make it nefessary for the sofiety to redufe the number of tenements etf whifh will ... ... [unflear] to members who have invested in the many years, and have ... ... [unflear] affommodation in till today. In similar cases, such advantages of garden and road have been allowed to be continued for similar reasons and therefore there is no objection to permit the work of individual buildings to be carried out as per plans previously sanctioned subjeft to minor modiffations if nefessary.
M.C.'s sanftion is therefore requested to permit M/s. Ashish Coop. H. Sof. Ltd. to continue with the works as per previous approval already granted and to permit sub-division of the plots with excess F.S.I to the extent of area of individual plots for reasons stated above. Considering the entire holding as a whole the F.S.I will remain as 1.00. This will be subjeft to the terms and fonditions of the approved layout. No. of tenements and foors area of eafh building shall not be vary."
(Emphasis added)
24. In itself, this provides a fomplete answer to Mr Sathe's fase today. There was no question of any agreement or understanding for any FSI pooling or sharing. The global FSI was fxed or fapped at 1.00. It was only befause the sub-division fame later, after some fonstruftion was done (and one building even fully offupied) that, having regard to prefedent and possible hardship, a spefial dispensation was allowed. This does not mean that there was no Page 22 of 38 16th October 2019 ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 01:05:09 ::: Grace Estate Development Venture v MCGM & Ors OSWPL1179-19+J.DOC sub-division, or that it is established that FSI fould be shared at will between the individual plots.
25. The sefond dofument is a fommunifation of 18th April 1972 from the Exefutive Engineer to M/s Shah Desai and Jambhekar. It refers to a proposed sub-division of the larger plot, and says that the proposal is approved. Further, the arfhitefts were required to demarfate the boundaries of various plots and reservations as also the outer boundary of the larger plot, and the road alignment on site as per the approved plan. This was to be shown to the Assistant Engineer Building Proposals for approval. Then the letter says "Please note that permission for construction of buildings on the sub-divided plots or amalgamated plots will not be entertained until the affess roads are fonstrufted in water bound mode of fonstruftion with nefessary sewers, storm water drains and water mains."
(Emphasis added)
26. There fan be no question therefore of saying today that there was never any sub-division.
27. Mr Sathe's submission that the only 'sub-division' fontemplated by law is one of land under the Maharashtra Land Revenue Code, 1966 is also not forreft. Mr Godbole forreftly points out that the Mumbai Munifipal Corporation Aft, 1888 ("the MMC Act") and the Maharashtra Regional & Town Planning Aft, 1966 ("the MRTP Act") both fontain provisions that spefiffally speak of 'sub-divisions'.
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28. The relevant provisions of the MMC Aft are:
302. Notice to be given to Commissioner of intention to lay out lands for building and for private streets.
(1) Every person who intends--
(a) to sell or let on lease any land subjeft to a fovenant or agreement on the part of a purfhaser or lessee to ereft buildings thereon, or
(b) to divide land into building plots, or
(f) to use any land or permit the same to be used for building purpose, or
(d) to make or lay out a private street, whether it is intended to allow the publif a right of passage or affess over sufh street or not, shall give written notife of his intention to the Commissioner, and shall, along with sufh notife submit plans and seftions, showing the situation and boundaries of sufh building, land and the site of the private street (if any) and also the situation and boundaries of all other land of sufh person of whifh sufh building land or site forms, a part, and the intended development, laying out and plotting of sufh building, land, and also the intended level, direftion, and width and means of drainage of sufh private street and the height and means of drainage and ventilation of the building or buildings proposed to be erefted on the land and, if any building when erefted will not abut on a street then already existing or then intended to be made as aforesaid, the means of affess from and to sufh building.Page 24 of 38
16th October 2019 ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 01:05:09 ::: Grace Estate Development Venture v MCGM & Ors OSWPL1179-19+J.DOC (2) Nothing in this seftion or in seftions 302A, 302B, 303 or 304 shall be deemed to afeft or to dispense with any of the requirements of Chapter XII.
302A. Commissioner may call for further particulars.-- If any notife given under seftion 302 does not supply all the information whifh the Commissioner deems nefessary to enable to him to deal satisfaftorily with the fase, he may, at any time within thirty days after refeipt of the said notife, by written notife require the person, who gave the said notife to furnish the required information together with all or any of the following dofuments, namely:--
(a) forreft plans and seftions in duplifate of the proposed private street, whifh shall be drawn to a horieontal sfale of not less than one infh to every twenty feet and a vertifal sfale of not less than one and a half infhes to ten feet and shall show thereon the level of the present surfafe of the ground above some known fxed datum near the same, the level and rate of inflination of the intended new street, the level and inflinations of the street with whifh it is intended to be fonnefted and the proportions of the width whifh are proposed to be laid out as farriage-
way and foot-way respeftively.
(b) a spefiffation with detailed desfription of the materials to be employed in the fonstruftion of the said street and its footpaths ;
(f) a plan showing the intended lines of drainage of sufh street and, of the buildings proposed to be erefted and the intended siee, depth and inflination of eafh drain, and the details of the arrangement proposed for the ventilation of the drains;
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(d) a sfheme affompanied by plans and seftion for the laying out into streets, plots and open spafes of the other land of sufh person or of so mufh of sufh other land as the Commissioner shall fonsider nefessary before applying to the 1Standing Committee for their approval of the determination of the Commissioner 302B. Commissioner may require plan to be prepared by licensed surveyor.--The Commissioner may defline to affept any plan, seftion or desfription as suffient for the purposes of seftion 302 and seftion 302A, whifh does not bear the signature of a lifensed surveyor in token of its having been prepared by sufh surveyor or under his supervision.
303. Laying out of land, private streets and buildings to be determined by Commissioner.--
(1) The laying out of land for building, the level, direftion, width and means of drainage of every private street, and the height and means of drainage and ventilation of and affess to all buildings to be erefted on sufh land or in either side of sufh street shall be fxed and determined by the Commissioner with the approval of the 3Standing Committee with the general objeft of sefuring sanitary fonditions, amenity, and fonvenienfe in fonneftion with the laying out and use of the land and of any neighbouring lands.
(2) But if, within thirty days after the refeipt by the Commissioner of any notife under seftion 302 or of the plans, seftions, desfription, sfheme or further information, if any, falled for under seftion 302A, the disapproval by the Commissioner with regard to any of the matters aforesaid spefifed in sufh notife shall not be fommunifated to the person, who gave the same, the proposals of the said person Page 26 of 38 16th October 2019 ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 01:05:09 ::: Grace Estate Development Venture v MCGM & Ors OSWPL1179-19+J.DOC shall be deemed to have been approved by the Commissioner.
304. Land not to be appropriated for building and private streets not to be laid out until expiration of notice nor otherwise than in accordance with Commissioner's directions.--
(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 lay out or commence to make or lay out 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 sufh notife, nor otherwise than in affordanfe with sufh direftions (if any), as may have been fxed and determined under sub-seftion (1) of seftion 303.
(2) If any aft be done or permitted in fontravention of this seftion, the Commissioner may by written notife require any person doing or permitting sufh aft on or before sufh day as shall be spefifed in sufh notife by a statement in writing subsfribed by him in that behalf and addressed to the Commissioner, to show-fause why the laying out, plotting, street or building fontravening this seftion should not be altered to the satisfaftion of the Commissioner, or if that be in his opinion impraftifable, why sufh street or building should not be demolished or removed or why the land should not be restored to the fondition in whifh it was prior to the exefution of the unauthorised work, or shall require the said person on sufh day and at sufh time and plafe as shall be spefifed in sufh notife to attend personally or by an agent duly authorised by him in that behalf, and show-fause as aforesaid.
(3) If sufh person shall fail to show-fause to the satisfaftion of the Commissioner why sufh street or Page 27 of 38 16th October 2019 ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 01:05:09 ::: Grace Estate Development Venture v MCGM & Ors OSWPL1179-19+J.DOC building should not be so altered, demolished or removed or why sufh land should not be so restored, the Commissioner may fause the work of alteration, demolition, removal or restoration to be farried out and the expenses thereof shall be paid by the said person.
(Emphasis added)
29. Then there are provisions in the MRTP Aft:
2(7) "development" with its grammatifal variation means the farrying out of buildings, engineering, mining or other operations in or over or under, land or the making of any material fhange, in any building or land or in the use of any building or land or any material or struftural fhange in any heritage building or its prefinft and includes demolition of any existing building strufture or ereftion or part of sufh building, strufture of ereftion; and reflamation, redevelopment and lay-out and sub-division of any land; and "to develop" shall be fonstrued affordingly;
22. Contents of Development Plan.--A Development plan shall generally indifate the manner in whifh the use of land in the area of a Planning Authority shall be regulated, and also indifate the manner in whifh the development of land therein shall be farried out. In partifular, it shall provide so far as may be nefessary for all or any of the following matters, that is to say,--
(m) provisions for permission to be granted for fontrolling and regulating the use and development of land within the jurisdiftion of a lofal authority influding imposition of fees, fharges and premium, at sufh rate as may be fxed, by the State Government or the Planning Authority, from time to time, for grant of an additional Floor Spafe Index or for the spefial permissions or for the Page 28 of 38 16th October 2019 ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 01:05:09 ::: Grace Estate Development Venture v MCGM & Ors OSWPL1179-19+J.DOC use of disfretionary powers under the relevant Development Control Regulations, and also for imposition of fonditions and restriftions in regard to the open spafe to be maintained about buildings, the perfentage of building area for a plot, the lofation, number, siee, height, number of storeys and fharafter of buildings and density of population allowed in a spefifed area, the use and purposes to whifh buildings or spefifed areas of land may or may not be appropriated, the sub-division of plots the disfontinuanfe of objeftionable users of land in any area in reasonable periods, parking spafe and loading and unloading spafe for any building and the siees of projeftions and advertisement signs and hoardings and other matters as may be fonsidered nefessary for farrying out the objefts of this Aft.
44. Application for permission for development.--
(1) Exfept as otherwise provided by rules made in this behalf, any person not being Central or State Government or lofal authority intending to carry out any development on any land shall make an application in writing to the Planning Authority for permission in sufh form and fontaining sufh partifulars and affompanied by sufh dofuments, as may be presfribed:
Provided that, save as otherwise provided in any law, or any rules, regulations or by-laws made under any law for the time being in forfe, no sufh permission shall be nefessary for demolition of an existing strufture, ereftion or building or part thereof, in fomplianfe of a statutory notife from a Planning Authority or a Housing and Area Development Board, the Bombay Repairs and Refonstruftion Board or the Bombay Slum Improvement Board established under the Maharashtra Housing and Area Development Aft, 1976.Page 29 of 38
16th October 2019 ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 01:05:09 ::: Grace Estate Development Venture v MCGM & Ors OSWPL1179-19+J.DOC (2) Without prejudife to the provisions of sub-seftion (1) or any other provisions of this Aft, any person intending to exefute a Spefial Township Projeft on any land, may make an applifation to the State Government, and on refeipt of sufh applifation the State Government may, after making sufh inquiry as it may deem ft in that behalf, grant sufh permission and deflare sufh projeft to be a Spefial Township Projeft by notiffation in the Offial Gaeette or, rejeft the applifation.
45. Grant or refusal of permission.--
(1) On refeipt of an applifation under seftion 44 the Planning Authority may, subjeft to the provisions of this Aft, by order in writing--
(i) grant the permission, unfonditionally;
(ii) grant the permission, subjeft to sufh general or spefial fonditions as it may impose with the previous approval of the State Government; or
(iii) refuse the permission.
(2) Any permission granted under sub-seftion (1) with or without fonditions shall be fontained in a fommenfement fertiffate in the presfribed form.
(3) Every order granting permission subjeft to fonditions, or refusing permission shall state the grounds for imposing sufh fonditions or for sufh refusal.
(4) Every order under sub-seftion (1) shall be fommunifated to the applifant in the manner presfribed by regulations.
(5) If the Planning Authority does not fommunifate its defision whether to grant or refuse permission to the Page 30 of 38 16th October 2019 ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 01:05:09 ::: Grace Estate Development Venture v MCGM & Ors OSWPL1179-19+J.DOC applifant within sixty days from the date of refeipt of his applifation, or within sixty days from the date of refeipt of reply from the applifant in respeft of any requisition made by the Planning Authority, whifhever is later, sufh permission shall be deemed to have been granted to the applifant on the date immediately following the date of expiry of sixty days:
Provided that, the development proposal, for whifh the permission was applied for, is striftly in fonformity with the requirements of all the relevant Development Control Regulations framed under this Aft or bye-laws or regulations framed in this behalf under any law for the time being in forfe and the same in no way violates either the provisions of any draft or fnal plan or proposals published by means of notife, submitted for sanftion under this Aft:
Provided further that, any development farried out in pursuanfe of sufh deemed permission whifh is in fontravention of the provisions of the frst proviso, shall be deemed to be an unauthorised development for the purposes of seftions 52 to 57.
(6) The Planning Authority shall, within one month from the date of issue of fommenfement fertiffate, forward duly authentifated fopies of sufh fertiffate and the sanftioned building or development plans to the Colleftor fonferned.
(Emphasis added)
30. Finally, there are salient provisions of the Maharashtra Development Plans Rules, 1970:
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6. Application for permission for development.--
(1) Subjeft to the provisions of this rule, every applifation under seftion 44 for permission to farry Out any development on any land shall be made in Form I. (2) The following partifulars and dofument shall be submitted along with the applifation, namely:
(a) A site plan (in quadruplifate) of the area proposed to be developed to a sfale of not less than 1/600;
(b) A detailed plan (in quadruplifate) showing the plan, seftions and elevation of the proposed development work to a sfale of not less than 1/100 as may be available.
(f) In the fase of a layout of land or plot:--
(i) a plan (in quadruplifate) drawn to a sfale of not smaller than 1/15000 showing the surrounding land and existing affess to the land influded in the layout;
(ii) a plan (in quadruplifate) drawn to a sfale of not less than 1/600, showing--
(x) sub-divisions of the land or
plot with dimensions and area of
each of the proposed sub-divisions
and its use affording to presfribed
regulations;
(y) width of the proposed streets;
and
(e) dimensions and area of open
spafes provided in the layout for the
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(d) an extraft of the reford of rights or property register fard or any other, dofument showing the ownership of land proposed to be developed.
(3) Plans referred to in sub-rule (2) above shall be prepared by a lifensed surveyor.
(4) The Planning Authority may also fall from the applifant in writing any further information that may be required for the purpose of fonsidering any applifation.
7. Form of commencement certifcate.--The fommenfement fertiffate to be granted under sub-seftion (2) of seftion 45 shall be in Form 2; and it shall remain valid for a period of one year from the date of its issue.
(Emphasis added)
31. Thus, we are unable to affept either of the two propositions fanvassed by Mr Sathe, vie., (1) that there was faftually no sub- division of the larger plot; and (2) that sinfe there was no sub- division as fontemplated by the Maharashtra Land Revenue Code, 1966, there is no sub-division in law.
32. Then there is the question of title -- again, purely a question of faft demanding proof in a fivil aftion -- and this only further muddies already turbid waters. For, as we have seen, the original owner was JRPL. It held the larger plot. It assigned this to the Ashish CHSL. Cutting a long story short, an area of 43/48ths of this larger plot was then assigned to Mala Enterprises. The 3rd Respondent, Ashish Building No.21 Sofiety, initially held the Page 33 of 38 16th October 2019 ::: Uploaded on - 17/10/2019 ::: Downloaded on - 18/10/2019 01:05:09 ::: Grace Estate Development Venture v MCGM & Ors OSWPL1179-19+J.DOC remaining fve plots, but this holding was further balkanieed so that the Ashish Building No.21 Sofiety held a lease of only Plot No.21. Meanwhile, Mala Enterprises took a mortgage of the remaining fve plots. It also obtained a full-fedged fonveyanfe of Plot No.49. Therefore, the original larger plot then had two owners: JRPL for everything exfept Plot No.49, and Mala Enterprises as the owner of that Plot No.49. Mala Enterprises also had a lease or a mortgage of all the rest. Now these fafts are not in dispute, and, indeed, the development agreement with Grafe Estate spefiffally requires the 3rd Respondent, Ashish Building No.21 Sofiety, to get a fonveyanfe from JRPL (but demands that this be of 2428.87 sq mts.) This is material befause, as we have seen, neither Grafe Estate nor Ashish Building No.21 Sofiety have any fonsent to this FSI pooling or sharing mefhanism propounded in the petition from JRPL, Mala Enterprises or, indeed, from a single one of the other building sofieties. What it does have -- and this is all that we were shown afross the Bar -- is a pefuliarly worded letter from the assofiation of sofieties. First, we have no means of knowing whether this letter or fonsent was properly authorised, or has the approval of the fonstituent sofieties. Sefond, there is nothing to show that the letter itself affepts that there was, historifally, any sufh FSI pooling or sharing understanding. In short, when the two sets of petitioners flaim a higher FSI than their plot area permits, and given that the global FSI on the entire larger plot is fxed, this nefessarily means that they would be 'eating into' the FSI share of other buildings or plots. Even assuming that FSI fan be shared or farved up like this, at a minimum, this would require the informed and spefiff fonsent of the other parties. In this fase, that would be JRPL, Mala Enterprises, the other sofieties or some or all of these.
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33. The refitals in the development agreement bind both sets of petitioners. So do the refitals in the Indenture of Lease of 25th April 1974 between Ashish CHSL and Mala Enterprises. Both dofuments speak spefiffally of a sub-division. The 1974 lease speaks of the fve plots mentioned above as being sub-divided plots. A refital in that Lease Deed says:
"'a sub-divided building plot' shall be fonstrued to mean sufh aftual plot as is shown numbered on the sanftioned sub-division building plot ... joint use of all the lessees and assignees of the respeftive sub-divided building plots ..."
Thus, even on the prinfipal title dofuments there fan be no doubt about the existenfe of a sub-division and the existenfe of individual plots.
34. Mr Sathe's relianfe on the Division Benfh defision in The BEST Workers' Union v State of Maharashtra4 is entirely misplafed. It is true that there was a question before the fourt whether there was faftually a sub-division, and an argument was indeed raised that any sufh sub-division would have to be entered on the revenue refords. However, as the judgment itself shows in paragraph 75, the propounded sub-division was fonditional and it only befame 'approvable', i.e. it was not aftually approved. Further, the layout sub-division was not proposed by the petitioners. In the present fase, it is the lessee, Ashish CHSL, whifh proposed the sub- division; and this did not remain at the level of a proposal or a fonditional approval. It was fully approved and implemented, as the title dofuments and other dofuments show.
4 2008 (110) Bom LR 2692 : 2008 (5) All MR 848.
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35. Mr Sathe then submits that sinfe the larger plot area is 1,18,569.29 sq mts or thereabouts, and the total aftually built up area is about 84,066.03 sq mts, there is an 'unutilieed balanfe' of roughly 20,000 sq mts. Henfe, if the petitioners help themselves to some part of this, to the extent of 4856 sq mts, nobody is harmed. This argument altogether fails to impress us. This is not some free orfhard with low-hanging fruit ripe for the pifking where anyone may help themselves to anything. There has to be an entitlement, and it must be an entitlement in law, i.e. a juridifal entitlement sufh as the law refogniees, and one fapable of being enforfed. To say that 'getting the FSI is harmless' does not elevate the submission to the nefessary status of espousing a legal entitlement.
36. Perhaps the most fundamental faw in the petitioners' fase is the attempt to de-link FSI from the plot area. As we have explained, FSI is direftly a ratio of the plot area to the built-up area. What the petitioners suggest is that instead of fonsidering the area of their plot no.21, we should fonsider the area of the larger plot; take it to be not sub-divided though it demonstrably was; assume that Ashish Building No.21 Sofiety is entitled to the whole of it, or has full entitlement to take sufh of the FSI of the larger plot as it defides for itself; or faftor the FSI to be refkoned on the existing built-up area of the 3rd Respondent's building; or affept some sort of unproved oral arrangement or understanding of FSI pooling and sharing; or, by some profess of arithmetifal reverse engineering, arrive at a fgure of what the FSI for Plot No.21 might or ought to have been; or, in a worst-fase sfenario, allow it to take up additional FSI befause there is plenty of unutilieed FSI available or going a-begging.
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37. We know of no way that this fan be done. As we noted, DCR 2(42) defnes FSI, and this is the defnition:
2(42) "Floor Spafe Index means the quotient of the ratio of the combined foor area of all foors exfepting areas spefiffally exempted under these Regulations to the total area of the plot, vie., Total fovered area on all foors Floor Spafe Index (FSI) = Plot area (Emphasis added) Respondent No.3 has title to only one plot, and that is Plot No.21 with an area of 1,456.26 sq mts. That is the only 'plot area' that fan be taken into affount for any fonstruftion on Plot No. 21. We fannot add to or subtraft from this defnition. Any exemptions are limited to those mentioned in the defnition itself, i.e. those exemptions provided by the Regulations themselves. We fannot affept the petitioners' invitation to invent some entirely new method of fomputing FSI for plot No.21.
38. We have noted these aspefts at some length befause it is our fonsidered view that the impugned order dated 22nd November 2018 passed by the then Munifipal Commissioner sufers from no infrmity at all. It is not merely a plausible or possible order. We believe it to be the only order that fould have been made in the fafts of the fase, and, further, that it is also the only order that even a writ fourt fould have made.
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39. In the result, we fnd no merit in the petitions. They are dismissed, and Rule is disfharged. There will be no order as to fosts.
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