Bombay High Court
Sun Empire Co-Operative Housing ... vs State Of Maharashtra And Ors on 5 December, 2016
Author: Ranjit More
Bench: Ranjit More, Anuja Prabhudessai
WP 2338.15(group)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2338 OF 2015
Sun Empire Co-operative Housing Society Ltd. ]
(A Co-operative Housing Society, having its ]
Registered Office at : Survey No.7(Part) and ]
9(Part), Vadgaon Budruk, Pune - 411 051. ]
Through the Secretary ]
Shri Ajit Arun Kolhatkar, ]
Age 44 years, Occ-Business, ]
R/at-C-3/304, ]
Sun Empire Co-operative Housing Society Ltd. ]
Survey No.7(Part) and 9(Part), ]
Vadgaon Budruk, Pune - 411 051. ]....Petitioner
versus
1. State of Maharashtra
ig ]
2. The Secretary, ]
Urban Development Department, ]
Government of Maharashtra, ]
Mantralaya, Mumbai - 400 032. ]
3. Pune Municipal Corporation, ]
Shivaji Nagar, ]
Pune - 411 005. ]
4. Municipal Commissioner, ]
Pune Municipal Corporation, ]
Shivaji Nagar, ]
Pune - 411 005. ]
5. Shri Naresh Ramchandra Mittal, ]
Adult Occ- Business, ]
Residing at :- A-4, Yashodeep, ]
Rambaug Colony, Lokmanya Nagar, ]
Navi Peth, ]
Pune - 411 03. ]
6. Sun Planet Resident's Welfare Association ]
Through its Chairman ]
Shri Shrirang Laxman Palande ]
Age 59 years, Occ.: Service, ]
R/at : 703, Sun Planet, Survey No.9, ]
Vadgaon, Anand Nagar, Pune - 411 051. ]....Respondents
Shubhada S Kadam 1/21
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along with
WRIT PETITION NO.7187 OF 2015
Sun Planet Resident's Welfare Association ]
Through its Chairman ]
Shri Shrirang Laxman Palande ]
Age 59 years, Occ.: Service, ]
R/at : 703, Sun Planet, Survey No.9, ]
Vadgaon, Anand Nagar, Pune - 411 051. ]....Petitioner
versus
1. Sun Empire Co-operative Housing Society Ltd. ]
(A Co-operative Housing Society, having its ]
Registered Office at : Survey No.7(Part) and ]
9(Part), Vadgaon Budruk, Pune - 411 051. ]
Through the Secretary ig ]
Shri Ajit Arun Kolhatkar, ]
Age 44 years, Occ-Business, ]
R/at-C-3/304, ]
Sun Empire Co-operative Housing Society Ltd. ]
Survey No.7(Part) and 9(Part), ]
Vadgaon Budruk, Pune - 411 051. ]
2. Pune Municipal Corporation, ]
Shivaji Nagar, ]
Pune - 411 005. ]
3. The Commissioner, ]
Pune Municipal Corporation, ]
Shivaji Nagar, Pune - 411 005. ]
4. Deputy/City Engineer, ]
Pune Municipal Corporation, ]
5. Shri Naresh Ramchandra Mittal, ]
Adult Occ- Business, ]
Residing at :- A-4, Yashodeep, ]
Rambaug Colony, Lokmanya Nagar, ]
Navi Peth, ]
Pune - 411 03. ]
6. The Secretary, ]
Urban Development Department, ]
Government of Maharashtra, ]
Mantralaya, Mumbai - 400 032. ].....Respondents
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along with
WRIT PETITION NO.10329 OF 2015
Sun Empire Co-operative Housing Society Ltd. ]
(A Co-operative Housing Society, having its ]
Registered Office at : Survey No.7(Part) and ]
9(Part), Vadgaon Budruk, ]
Pune - 411 051. ]
Through the Chairman, ]
Shri Ashok Shankarrao Kubitkar, ]
Age 67 years, Occ-Retired, ]
R/at-B-3/303, ]
Sun Empire Co-operative Housing Society Ltd. ]
Survey No.7(Part) and 9(Part), ]
Vadgaon Budruk, Pune - 411 051. ].....Petitioners
versus
1. Pune Municipal Corporation, ig ]
Shivaji Nagar, ]
Pune - 411 005. ]
2. The Deputy Engineer, ]
Building Permission Department, ]
Zone 2, Pune Municipal Corporation, ]
Shivaji Nagar, ]
Pune - 411 005. ]
3. The Junior Engineer/Branch Engineer, ]
Building Permission Department, ]
Zone 2, Pune Municipal Corporation, ]
Shivaji Nagar, ]
Pune - 411 005. ]
4. Sun Planet Resident's Welfare Association ]
Through its Chairman ]
Shri Shrirang Laxman Palande ]
Age 59 years, Occ.: Service, ]
R/at : 703, Sun Planet, Survey No.9, ]
Vadgaon, Anand Nagar, Pune - 411 051. ]....Respondents
Mr. A. V. Anturkar, senior counsel along with Mr. Sugandh B. Deshmukh,
advocate for the petitioner in writ petition No. 2338 of 2015.
Mr. A. V. Anturkar, senior counsel along with Mr. Sandeep M. Phatak,
advocat for the petitioner in writ petition No. 10329 of 2015.
Mr. Shriram S. Kulkarni, advocate for the petitioner in writ petition No.
7187 of 2015 and respondent No.6 in writ petition No. 2338 of 2015.
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Mrs. M. P. Thakur, AGP for the State.
Mr. Rajdeep Suresh Khadapkar, advocate for the Corporation.
Mr. A. G. Damle, senior counsel along with Mr. Rohit S. Gangawane,
advocate for respondent No.5 in writ petition Nos. 2338 of 2015 and
7187 of 2015.
CORAM : RANJIT MORE &
ANUJA PRABHUDESSAI, JJ.
DATE OF RESERVING : 17th OCTOBER, 2016.
DATE OF PRONOUNCEMENT : 5th DECEMBER, 2016.
Oral Judgment : (Per Ranjit More, J.) Rule. Rule is made returnable forthwith and the petitions are heard finally by consent.
2. Heard learned senior counsel, learned counsel and learned AGP appearing for the respective parties.
3. Writ petition No.2338 of 2015 seeks to challenge :
1. Notification dated 17th May, 2008, issued by the State Government sanctioning the draft development plan under Section 31 of the Maharashtra Regional and Town Planning Act, 1966 (for short "the MRTP Act") vis-à-vis the road passing through survey No.7(part) and survey No.9(part), Vadagaon Budruk, Pune 411 051.Shubhada S Kadam 4/21 ::: Uploaded on - 06/12/2016 ::: Downloaded on - 07/12/2016 00:55:23 :::
WP 2338.15(group)
2. The order dated 21st March, 2009, passed by the Municipal Commissioner under the provisions of DCR 14.4.1(g) of the Development Control Regulations of Pune Municipal Corporation granting sanction for shifting of the reservation viz. 9 meter wide DP Road.
Writ petition No.10329 of 2015 seeks to challenge the notice dated 19th September, 2015, issued by the Designated Officer of Pune Municipal Corporation under Section 260(2) of the Maharashtra Municipal Corporations Act, (for short "the Corporations Act") Writ petition No. 7187 of 2015 is filed seeking declaration that the Corporation and all the respondents therein are bound by the provisions of the final Development Plan and they are duty bound to provide 9 meter DP Road and further sought a direction to the respondent-Corporation and the State to provide the same. Direction is also sought to execute the notice dated 21 st February, 2015, issued under Section 478(1) of the Corporations Act.
Thus, the subject matter of all these petitions is the road passing through survey No.7(part) and survey No.9(part) Vadagaon Budruk, Pune 411 051 and, therefore, all these petitions are directed to be clubbed together and we have heard respective counsel and propose Shubhada S Kadam 5/21 ::: Uploaded on - 06/12/2016 ::: Downloaded on - 07/12/2016 00:55:23 ::: WP 2338.15(group) to dispose of these petitions by a common order.
4. The undisputed facts are as follows :
On 31st December, 2002, Pune Municipal Corporation -
Planning Authority published a draft development plan under Section 26 of the MRTP Act in respect of the villages those were included in the limits of the said Corporation in the local newspaper as well as in the Government Gazette inviting the objections. On 27 th February, 2003, Shri Laxman Thite, Architect of respondent No.5-Developer submitted written objection to the said draft development plan. On 3 rd November, 2004, commencement certificate was granted in favour of respondent No.5-Developer through his Architect - Shri Laxman Thite. On 15 th April, 2005, Pune Municipal Corporation gave a show cause notice under Section 51(1) of the MRTP Act on the ground that same is affecting the 9 meter DP road in the draft development plan. On 28 th September, 2005, Pune Municipal Corporation dropped the action under Section 51(1) of the MRTP Act for revocation of the commencement certificate on the ground that the construction has substantially progressed. On 23rd April, 2007, Shri Thite-Architect of respondent No.5-Developer submitted an application for shifting 9 meter DP Road to an internal road because of the construction on the proposed road was affected by the said 9 meter DP Road. On 11 th July, 2007, the City Engineer informed Shubhada S Kadam 6/21 ::: Uploaded on - 06/12/2016 ::: Downloaded on - 07/12/2016 00:55:23 ::: WP 2338.15(group) the Commissioner of Pune Municipal Corporation to grant approval for shifting of the 9 meter DP Road. On 19 th July, 2007, respondent No.5 executed a bond and gave an undertaking to the Municipal Corporation for removing the gate and other obstructions on the 9 meter DP road at his cost. On 30th July, 2007, Pune Municipal Corporation issued a part completion certificate to respondent No.5 on various terms and conditions. Condition Nos.29 and 30 categorically mentions that it is mandatory to first obtain revised development plan layout, before seeking an approval for any additional construction and before consuming the FSI for additional road widening, the said road will be handed over to the Corporation. On 21 st September, 2007, the Special Officer of Vigilance sought approval of the Commissioner for taking possession of the road for opening it to the public transport. Similar recommendation has been given by the Additional Municipal Commissioner. On 3rd November, 2007, the Commissioner approved the shifting of the road under DCR 14.4.1(g) of the Development Control Regulations of Pune Municipal Corporation. On 17 th December, 2007, the petitioner society in writ petition No.2338 of 2015 viz. Sun Empire Cooperative Housing Society Ltd. was registered. On 17 th May, 2008, the draft development plan was sanctioned by the State Government under Section 31 wherein the 9 meter DP Road was shown in survey No.7(part) and survey No.9(part), Vadagaon Budruk, Pune 411 051.Shubhada S Kadam 7/21 ::: Uploaded on - 06/12/2016 ::: Downloaded on - 07/12/2016 00:55:23 :::
WP 2338.15(group) In the month of April, 2009, 14 members of Sun Empire Co-operative Housing Society filed RCS No.562 of 2009 before the Civil Judge, Senior Division, Pune against Pune Municipal Corporation and respondent No.5-Developer seeking declaration that the conversion of internal road in the layout into DP Road is contrary to Section 7 of the MOFA and the revised plans based upon the same are void and for various other reliefs, declarations and injunctions. The said suit is pending. On 21st June, 2013, Sun Planet Residents' Welfare Association lodged complaint with the Commissioner of Pune Municipal Corporation requesting for access to the 9 meter DP Road. Another complaint was made on 21st February, 2015, by Sun Planet Residents' Welfare Association to the Corporation submitting that Sun Empire Co-opertive Housing Society Ltd. has constructed unauthorized wall and also constructed unauthorized structure on 9 meter DP Road and requested the Corporation to take necessary action. On 21 st February, 2015, the Corporation issued notice under Section 478(1) of the Corporations Act to Sun Empire Co-opertive Housing Society Ltd. for removal of unauthorized construction of the wall and unauthorized temple constructed on the said 9 meter DP Road. The Sun Planet Resident's Welfare Association filed one more complaint on 3 rd March, 2015, requesting the Corporation to take necessary action.
Shubhada S Kadam 8/21 ::: Uploaded on - 06/12/2016 ::: Downloaded on - 07/12/2016 00:55:23 :::WP 2338.15(group) The Sun Empire Co-operative Housing Society Ltd. filed writ petition No. 2338 of 2015 on 4 th March, 2015 for the reliefs mentioned hereinabove. This Court initially granted status-quo on 5th March, 2015 in respect on the internal road. The intervenor - Sun Planet Residents' Welfare Association thereafter filed an intervention application No.915 of 2015 in writ petition No.2338 of 2015. This intervention application is allowed by passing a separate order on 17th October, 2016. Sun Planet Resident's Welfare Association also filed a separate writ petition No.7187 of 2015 for the reliefs stated hereinabove. Both the writ petition Nos.2338 of 2015 and 7187 of 2015 were placed for orders before a Division Bench on 1 st September, 2015.
The Division Bench of this Court, by passing an order, gave clarification that earlier status-quo granted in favour of the petitioner in writ petition No.2338 of 2015 does not prevent Pune Municipal Corporation from taking action in accordance with law for removal of the illegal structures on the internal road. The Municipal Corporation thereafter issued notice under Section 260 of the Corporations Act to Sun Empire Co-operative Housing Society Ltd, which notice is impugned in writ petition No.10329 of 2015.
5. Mr. Anturkar, learned senior counsel appearing for Sun Shubhada S Kadam 9/21 ::: Uploaded on - 06/12/2016 ::: Downloaded on - 07/12/2016 00:55:23 ::: WP 2338.15(group) Empire Co-operative Housing Society Limited submitted that Shri Laxman Thite-Architect of respondent No.5-Developer, raised objection in respect of the proposed development plan. He submitted that so far as the objection regarding the DP road mentioned in the proposed development plan is concerned, the matter was referred to the planning committee and the planning committee after considering the objection came to the conclusion that since there is development on the said proposed DP road, the said internal road of the society should be shown as an existing internal road. He submitted that the recommendation made by the planning committee was accepted by the planning authority and, therefore, it was obligatory on the planning authority to incorporate the change/recommendation of the planning committee.
However, the changes/recommendations were not incorporated in the plans sent by the planning authority to the Government. Mr. Anturkar further submitted that the Corporation initially issued notice under Section 51(1) of the MRTP Act on 15 th April, 2005. However, this notice was dropped on 28th September, 2005, on the ground that substantial development has already taken place. He submitted that having done so, now it is not permissible to the Corporation to issue another notice under Section 260 of the Corporations Act. He also submitted that the notice under Section 260 of the Corporations Act cannot be given for the purpose of enforcement of the alleged bond. He further submitted that Shubhada S Kadam 10/21 ::: Uploaded on - 06/12/2016 ::: Downloaded on - 07/12/2016 00:55:23 ::: WP 2338.15(group) the notice under Section 260 can be given, in case of erection of any building or execution of any such work is commenced or carried out, contrary to the rules or bye-laws. He submitted that the disputed compound wall is shown in the approved plan and, therefore, the construction of the said wall cannot said to be illegal so as to attract the provisions of Section 260 of the Corporations Act.
Regarding the order dated 21st March, 2009, of the Commissioner shifting the DP Road under DCR 14.4.1(g) for Pune Municipal Corporation is concerned, Mr. Anturkar submitted that the members of Sun Empire Co-operative Housing Society Ltd. are the interested persons and their consent is required to be obtained and, in the present case, as admittedly no consent is obtained, the order of shifting of 9 meter DP Road cannot be sustained.
6. Mr. Kulkarni, learned counsel for Sun Planet Residents' Welfare Association opposed writ petition No. 2338 of 2015. He submitted that the said petition suffers from delay and laches and, therefore, the same is liable to be dismissed. He also submitted that Sun Empire Co-operative Housing Society Limited is bound by all the actions of respondent No.5, who is their predecessor-in-title and who has given the bond for shifting of 9 meter DP Road to the internal road.
Shubhada S Kadam 11/21 ::: Uploaded on - 06/12/2016 ::: Downloaded on - 07/12/2016 00:55:23 :::WP 2338.15(group) Mr. Kulkarni submitted that the interpretation of DCR 14.4.1(g) given by Mr. Anturkar is thoroughly misconceived and not tenable in the eyes of the law. In this regard, he submitted that the members of Sun Empire Co-operative Housing Society Limited, at the relevant time, were not entitled to be heard and, therefore, no fault can be found in the order dated 21st March, 2009 of shifting the 9 meter DP road to the internal road. He lastly submitted that writ petition No. 2338 of 2015 is not maintainable as the members of Sun Empire Co-operative Housing Society Ltd. have already availed the alternative efficacious remedy by filing a suit and the same is pending before the Civil Court.
So far as petition filed by Sun Planet Residents' Welfare Association viz. writ petition No.7187 of 2015 is concerned, he submitted that the subject road is the only access road to the members of the Sun Planet Residents' Welfare Association. This road is illegally blocked by Sun Empire Cooperative Housing Society Ltd. and, therefore, the encroachment on the said road is required to be removed and the road must be made available to the members of Sun Planet Residents' Welfare Association for access.
7. Mr. Khadapkar, learned counsel for Pune Municipal Corporation relied upon the affidavits-in-reply filed in writ petition No. Shubhada S Kadam 12/21 ::: Uploaded on - 06/12/2016 ::: Downloaded on - 07/12/2016 00:55:23 ::: WP 2338.15(group) 2338 of 2015 as well as writ petition No.10329 of 2015 by the City Engineer of Pune Municipal Corporation. He submitted that the development plan sanctioned by the Government under Section 31 of the MRTP Act cannot be objected at belated stage. He also submitted that the order passed by the Commissioner under DCR 14.4.1(g) is perfectly legal. He submitted that since the road in question is a DP Road and, admittedly, there is obstruction on this road, the Corporation was duty bound to remove this obstruction and make the said road open for the public.
8. Having considered the rival submissions and having gone through the petitions along with the annexures thereto and the affidavits-in-reply, we do not find any merit in writ petition Nos. 2338 of 2015 and 10329 of 2015. We are, however, of the opinion that writ petition No.7187 of 2015 deserves to be allowed.
9. At the outset, we will consider the maintainability of writ petition No.2338 of 2015 on the ground of delay and laches. As stated above, the draft development plan under Section 26 of the MRTP Act was published on 31st December, 2002 and the same was sanctioned by the Government under Section 31 of the MRTP Act on 17 th May, 2008. In the development plant, the 9 meter DP Road is shown in survey Nos.7(part) Shubhada S Kadam 13/21 ::: Uploaded on - 06/12/2016 ::: Downloaded on - 07/12/2016 00:55:23 ::: WP 2338.15(group) and 9(part). The order of shifting the DP Road to the internal road under DCR 14.4.1(g) was passed on 2009. Some of the members of the Sun Empire Cooperative Housing Society thereafter filed RCS No.562 of 2009 before the Civil Judge, Senior Division, Pune, seeking declaration that the conversion of the internal road in the layout into DP Road is contrary to Section 7 of the MOFA. Prior to this, the petitioner society - Sun Empire Cooperative Housing Society Ltd. was registered on 17th December, 2007. At the time of filing of the suit, Sun Empire Cooperative Housing Society was very much aware that the State Government had already sanctioned the draft development plan and the Commissioner was also pleased to shift the DP Road to internal road.
Despite this, the said society did not intervene in the said suit. The said society thereafter remained mum for several years and filed writ petition No.2338 of 2015 after a lapse of 7 years. The said society has not given any satisfactory explanation for this delay and, therefore, we are of the opinion that this petition deserves to be dismissed on the ground of delay and laches alone. Nevertheless, we will deal with the submissions of the respective counsel on merits.
Mr. Anturkar challenged the development plan solely on the ground that Shri Laxman Thite-Architect of respondent No.5- Developer objected the draft development plan vis-à-vis the 9 meter DP Shubhada S Kadam 14/21 ::: Uploaded on - 06/12/2016 ::: Downloaded on - 07/12/2016 00:55:23 ::: WP 2338.15(group) road and the said objections were considered by the planning committee and the decision of the planning committee was thereafter accepted and upheld by the General Body of Pune Municipal Corporation by passing resolution No.299. The stand of the Corporation in this regard is that Shri Thite-Architect neither raised any objection about the DP Road proposed in draft development in survey Nos. 7 and 9, nor the planning committee recommended for deletion of the proposed DP Road. The objections of Mr. Thite are annexed to writ petition No.2338 of 2015 at "Exhibit C", page 47. We have gone through those objections. We find substance in the stand of the Corporation inasmuch as there is no reference of the DP Road in the proposed draft development plan in survey Nos.7 and 9. Mr. Anturkar also relied upon the document at "Exhibit D" at page 49 to substantiate his contention that Shri Thite had taken objection about the DP Road proposed in the draft development plan in survey Nos.7 and 9. There is no dispute that these documents disclose that Shri Laxman Thite has taken oral objection. However, that objection was in respect of 9 meter DP Road in survey No.12. By no stretch of imagination, the said objection can be stated to be in respect of DP Road proposed in the draft development plan in survey Nos. 7 and9. In the absence of such objection, either by Mr. Thite - Architect or respondent No.5-Developer, it cannot be said that the planning committee recommended for deletion of the proposed Shubhada S Kadam 15/21 ::: Uploaded on - 06/12/2016 ::: Downloaded on - 07/12/2016 00:55:23 ::: WP 2338.15(group) DP Road in survey Nos.7 and 9.
Be that as it may, the General Body of Pune Municipal Corporation, by its resolution No.368 passed on 29 th November, 2005, directed to submit draft development plan published under Section 29 as it is to the State Government. Thus, the said development plan submitted under Section 30 of the MRTP Act to the State Government was with the approval of Pune Municipal Corporation and the said draft development plan as stated above is sanctioned by the Government under Section 31 of the MRTP Act.
ig Thus, the challenge to the development plan vis-à-vis the DP road in survey Nos.7 and 9 cannot be sustained.
This takes us to consider the second submission of Mr. Anturkar regarding the legality or otherwise of the notice under Section 260 of the Corporations Act. Mr. Anturkar stated that the Corporation having withdrawn the earlier notice under Section 51 of the MRTP Act, could not have issued a fresh notice under Section 260 of the Corporations Act. He also submitted that the provisions of Section 260 of the Corporations Act cannot be resorted inasmuch as the disputed wall is shown as compound wall in the sanctioned building plan. The submissions, in our opinion, are clearly an afterthought. The averments made by the Corporation in affidavit-in-reply filed in writ petition Shubhada S Kadam 16/21 ::: Uploaded on - 06/12/2016 ::: Downloaded on - 07/12/2016 00:55:23 ::: WP 2338.15(group) No. 10329 of 2015 disclose that in respect of the said unauthorized wall, earlier on 27th August, 2012, notice under Section 260(1) of the Corporations Act was issued to respondent No.5-Developer and the said Developer, in his reply, contended that he is not constructing the said wall and the said wall is being constructed by Sun Empire Co-operative Housing Society Ltd.. The said fact was also brought to the notice of the said society and the developer by addressing communication. These averments are not disputed by the said society by filing rejoinder. That apart, it is the case of the said society that it came into picture vis-a-vis land only in the year 2014 when the deemed conveyance dated 3 rd June, 2014, was executed in its favour. Thus, in the year 2012, the said society had no right/authority to carry out any construction over the said land.
No specific permission was given by the planning authority under the sanctioned building plan to carry out construction of the said wall over the said road. The design/specification shown in the building plan sanctioned in favour of the said Developer only indicates that the said Developer could construct compound wall of the said design/specification strictly as per the Development Control Rules. Thus , in our considered opinion, the compound wall could not have been constructed on the DP Road. Since the compound wall and the temple is constructed by the petitioner -society on the DP Road without permission, the same is illegal and, therefore, the Corporation rightly Shubhada S Kadam 17/21 ::: Uploaded on - 06/12/2016 ::: Downloaded on - 07/12/2016 00:55:23 ::: WP 2338.15(group) resorted to the provisions of Section 260 of the Corporation Act. We are also of the opinion that withdrawal of the notice under Section 51(1) of the MRTP Act will have no effect on the status of the DP Road as sanctioned by the State Government.
The last objection of Mr. Anturkar about the order dated 21st March, 2009, passed by the Municipal Commissioner under DCR 14.4.1(g) regarding shifting of the DP Road to internal road is concerned, same is also without substance. The objection in this regard is only taken on the ground that the members of the said society viz. Sun Empire Co-operative Housing Society Ltd. are interested persons and their consent is not taken before passing the said order dated 21st March, 2009. It is apparent that the said order regarding shifting of the DP Road was passed at the instance of Shri Laxman Thite -Architect of respondent No.5-Developer in pursuance of the application dated 23rd April, 2007. Respondent No.5 thereafter also gave bond. Mr. Anturkar contends that the agreement under MOFA in favour of the said society was registered in or about 2007 and, therefore, the members of the said society are interested persons and required to be heard before passing any order under DCR 14.4.1(g). The Corporation relied upon the agreements executed by members of the said society to contend that respondent No.5 had retained right in respect of the internal road.
Shubhada S Kadam 18/21 ::: Uploaded on - 06/12/2016 ::: Downloaded on - 07/12/2016 00:55:23 :::WP 2338.15(group) Some of the agreements are annexed to the affidavit-in
-reply filed by the Corporation. Clause 3 of the agreement reads as under :
"3. It is hereby declared that sanctioned plan/s has/have been shown to the Purchaser and the Floor Space Index (FSI) available is shown in the said plan/s.
Similarly, the Floor Space Index, if any, utilised as floating floor space index or in any manner, i.e. to say transfer from the said land or floor space index of any other property used on the said land is also shown in the plan/s. In this Agreement, the word FSI or Floor Area Ratio shall have the same meaning as understood by the Planning Authority under its relevant building regulations or bye-laws. The Promoter shall be entitled to float F.S.I. of the Property in the present scheme to any other property and vice-versa if so permitted by the concerned authority. The Promoter shall also be entitled to use the FSI of the internal road, road widening FSI, TDR. etc. on the said building and or other buildings in the layout of the said project."
Reading of this clause, do show that respondent No.5 had retained rights in respect of the internal road. Therefore, the members of the petitioner-society cannot said to be interested persons who are required to be heard. Be that as it may, the effect of setting aside the order of the Municipal Commissioner passed under DCR 14.4.1(g) will Shubhada S Kadam 19/21 ::: Uploaded on - 06/12/2016 ::: Downloaded on - 07/12/2016 00:55:23 ::: WP 2338.15(group) render existing structures of the petitioner unauthorized because the same are affected by 9 meter DP Road. The record further reveals that the area covered by the 9 meter DP Road is 3659.33 square meters.
Under Section 126(1)(b) of the MRTP Act, the reserved land can be acquired by granting FSI (Floor Space Index) or TDR (Transferable Development Rights). The Corporation contended and Mr. Anturkar did not dispute that the entire FSI equivalent to 3659.33 square meter land is utilized by the predecessor-in-title of the said society. The predecessor-in-title has also given an undertaking to remove all the hindrances that may come within the said road and, more particularly by removing the wall and the gate. The said society viz. Sun Empire Cooperative Housing Society stands in the shoes of its predecessor-in-
title and, therefore, is bound by the undertaking given by him. Thus, the petitioner in writ petition Nos. 2338 of 2015 and 10329 of 2015 are not entitled for any relief. Both the petitions are dismissed. Consequently, writ petition No.7187 of 2015 is made absolute in terms of prayer clauses (a), (b) and (c).
[ANUJA PRABHUDESSAI, J.] [RANJIT MORE, J.] At this stage, learned counsel for the petitioner society viz.
Sun Empire Co-operative Housing Society Ltd., seeks continuation of Shubhada S Kadam 20/21 ::: Uploaded on - 06/12/2016 ::: Downloaded on - 07/12/2016 00:55:23 ::: WP 2338.15(group) the interim relief for a period of two weeks from today. The request is opposed by Mr. Khadapkar, learned counsel for the Corporation.
However, in the interests of justice and in order to enable the petitioner-
society to approach the Supreme Court, the status-quo granted earlier shall remain in force till 19 th December, 2016. It is made clear that the petitioner-society will not seek further extension of the status-quo.
[ANUJA PRABHUDESSAI, J.] ig [RANJIT MORE, J.]
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