Bombay High Court
Bombay Environmental Action Group vs The Bombay Municipal Corporation And ... on 19 October, 1994
Equivalent citations: 1995(2)BOMCR233
JUDGMENT M.L. Pendse, J.
1. The facts of this petition would disclose how respondents 2 and 3 colluded with the Bombay Municipal Corporation in flouting the Development Control Rules for Greater Bombay and attempting to put up a huge building in total violation of the Rules and Regulations. The petitioners are a registered society whose aims and objects are inter alia to look after the environment in all its aspects and to ensure that citizens enjoy enhanced quality of life and have maximum civil amenities. The petition is filed on July 17, 1984 as public interest litigation to prevent respondent No. 3 from constructing building named as Arihant. The few facts which are not in dispute are required to be set out to appreciate the grievance of the petitioners.
2. The property bearing City Survey No. 4/755 of Malabar Hill and Cumballa Hill Division on the corner of Gopalrao Deshmukh Marg and Bhulabhai Desai Road originally belonged to N.V. Gamadia and N.J. Gamadia. By conveyance dated June 28, 1972 the respondent No. 2 Messrs. Govani Builders Ltd., purchased the said property. The total area of Plot No. 4/755 admeasures 17,374 sq. yards. An area of 1402 sq. yards out of the plot was leased out for running a petrol pump. In the year 1958, the Municipal Corporation of Greater Bombay in exercise of powers under section 299(1) of the Bombay Municipal Corporation Act acquired set back area admeasuring 1713.90 sq. yards. Section 299(1) confers power on the Commissioner to take possession of the land which lies within the regular line of a public street. The Municipal Corporation takes possession only after the sanction is issued by the State Government. The owner of the land is entitled to payment of compensation for acquisition of set back area and it is not in dispute that the compensation amount was paid in respect of acquisition of set back area of 1713.90 sq. yards in the year 1963 to Gamadia Brothers. The Municipal Corporation again acquired additional set back area of 791.15 sq. yards in the year 1962. In respect of this acquisition the Corporation offered compensation at the rate of Rs. 135/- per sq. yard by letter dated March 16, 1963 to Gamadia Brothers. Gamadia Brothers did not accept the compensation offered and sought reference being Municipal Reference No. 347 of 1963 in the Court of Small Causes at Bombay in accordance with the provisions of section 504 of Municipal Corporation Act. Gamadias were demanding compensation at the rate of Rs. 600/- per sq. yard. The dispute between Gamadias and the Corporation was settled by filing a consent terms whereby the Corporation agreed to pay the compensation at the rate of Rs. 400/- per sq. yard.
As mentioned hereinabove, the property was purchased by respondent No. 2, Builders, in the year 1972. In the year 1978 the Corporation acquired an area of 1340.73 sq. yards for set back. It is not in dispute that respondent No. 2 did not receive compensation in respect of acquisition of area of 1340.73 sq. yards in the year 1978.
3. Respondent No. 2 after purchasing the property on June 28, 1972 submitted plans to the Municipal Corporation on September 2, 1972 for construction of building named as 'Tirupati' on the plot. Sanctioned plans sets out that the area of plot was 17,374 sq. yards. Building Tirupati was completed in the year 1982 and final sanction plan was approved by the Municipal Corporation on March 6, 1982. The total built up area of Tirupati Building is 1,52,369 sq. ft. Respondent No. 3 is the sister concern of respondent No. 2. The respondent No. 2 proposed to set up another building known as 'Arihant' on the remaining portion of the plot in the year 1982 and submitted plans to the Municipal Corporation for construction of building consisting of 15 storeys. Respondent No. 2 assigned the rights of development in favour of respondent No. 3 and both respondents 2 and 3 have entered into agreements with prospective flat purchasers in the building Arihant. The respondents 2 and 3 claim that the built up area consumed in respect of Tirupati Apartments is 16,740.57 sq. yards. The petitioners controvert this claim by reference to letter, a copy of which is annexed as Exhibit 'A' to the petition. The letter is addressed by 2nd respondent to the Chief Minister of State of Maharashtra and the letter recites that the built-up area consumed by the building Tirupati is 25,066 sq. yards. The respondent No. 2 denies the contents but it is not necessary to enter into the controversy as to what is the built-up area consumed by Tirupati Apartments in the present petition and we will proceed on the claim of respondent No. 2 that the built-up area consumed by Tirupati Apartments is only 16,740.57 sq. yards. It is not in dispute that the built-up area consumed by the petrol pump is 133.33 sq. yards. The Development Control Rules of the year 1967 demands that while undertaking construction 15% of the area shall be reserved for recreation purpose. The entire controversy in the petition centers around on the issue as to whether any floor space area is available in respect of Plot No. 4/755 after construction of Tirupati Apartments so as to enable the respondent No. 3 to set up another building Arihant consisting of stilt and 11 floors.
4. Before adverting to the controversy in the petition it is necessary to set out one more fact which is relevant. On February 28, 1981 the Respondent No. 2 submitted a proposal to the Municipal Corporation for sub-division of the plot. The proposal sets out the total area of the plot and suggested that the area covered by Tirupati Apartments should be marked as Plot B and the remaining area as Plot A. On December 28, 1981 Corporation sanctioned the sub-division showing the area of Plot B as 11,383.77 sq. yards and the remaining area as Plot A admeasuring 2938.11 sq. yards. The respondents 2 and 3 submitted plans for construction of Arihant building after the Corporation sanctioned the sub-division and the plans were approved on March 11, 1982. The respondents 2 and 3 claimed that the built-up area still available for construction of Arihant Apartments is 2431.45 sq. yards and the claim was accepted by the Municipal Corporation. The claim is made on the basis that the set back area admeasuring 1713.90 sq. yards acquired in the year 1958 and the set back area admeasuring 1340.73 acquired in the year 1978 can be taken into consideration while calculating the area of the plot as the compensation received in respect of the acquisition of the year 1958 was repaid along with interest by the Builder to the Corporation. The Builder had not received compensation in respect of acquisition undertaken in the year 1978. The Builder therefore claims that the area covered by the two acquisitions can be taken into consideration for determination of the available built-up area of the plot in view of the Circular dated May 15, 1972 issued by the Municipal Corporation. The question for determination is whether respondents 2 and 3 are entitled to take into consideration the area of 1713.90 sq. yards which was acquired in the year 1958 and for which compensation was paid to Gamadias while determining the available built-up area. Mr. Tulzapurkar, learned Counsel on behalf of respondent No. 3 and Mr. Dwarkadas, learned Counsel on behalf of respondent No. 2 very fairly stated that in case the area of 1713.90 sq. yards acquired in the year 1958 is not to be taken into account for determination of built-up area then the Corporation could not have sanctioned plans for construction of building Arihant, as the built-up area left for consumption was hardly 152 sq. yards. Respondents 2 and 3 have tendered a statement setting out how the claim of built-up area available for consumption for Arihant Apartments is calculated. Mr. Setalvad and Mr. Bharucha, learned Counsel for the petitioners and the Corporation respectively, accepted the accuracy of the statement. A copy of the statement is annexed to this judgement as 'A'.
5. Prior to 1967 the Government and the Corporation had not framed any rules for regulating the development of the properties in Greater Bombay. The Maharashtra Legislature enacted the Maharashtra Regional & Town Planning Act, 1966 to make provisions for planning development and use of land. In pursuance of powers conferred under the Act, the State Government sanctioned Development Control Rules for Greater Bombay and the Rules were published in the gazette on January 7, 1967. These Rules came into force with effect from February 9, 1967 for the purpose of all parts of the development plan of Greater Bombay. The Rules divided various properties into residential zones, residential with shoplines, commercial, industrial and green or no development zones etc. Rule 10 inter alia provides that the floor space index and the tenements per net acre permissible in the various residential zones shall not exceed the respective figures shown in the table. In respect of the area where Plot No. 4/755 is situated the available F.S.I. is 1.33. Rule 10(2) reads as follows:-
"10(2) With the previous approval of Government the Floor Space Indices specified above, may be permitted to be exceeded in respect of buildings of Educational and Medical Relief Institutions and Government and semi-Government Offices and Luxury Hotels and in respect of any building on the top of which any revolving structure is to be constructed as a place of Public entertainment or amusement.
The Municipal Commissioner shall permit additional floor space index on 100% of the area required for road-widening or for constructing new roads proposed under the Development Plan, or those proposed under any provision of the Bombay Municipal Corporation Act, if the owner (including a lessee) of such land is prepared to release such area for road widening or for constructing new roads without claiming any compensation thereof. Such 100% of the area going under such road-widening or road construction shall be limited to 40% of the area of the plot remaining after release of the land required for such road widening or road construction".
6. The Municipal Corporation published Circular dated May 15, 1972 with regard to the grant of 100% extra floor space index equivalent to the area of the set back land required for development plan road, road widening or for the proposed new roads under the provisions of the Bombay Municipal Corporation Act or under the Development Plan. The Circular, inter alia, recites that the State Government had published Notification dated November 30, 1971 as a modification to Development Control Rule 10(2) and the same has come into effect from November 30, 1971. The Circular sets out what the modified Development Control Rule 10(2) prescribes. Clauses 4 and 5 of the Circular are required to be set out as the claim for calculation for set back area acquired in year 1958 is supported by Mr. Tulzapurkar, learned Counsel on behalf of the Builder and Mr. Bharucha, learned Counsel on behalf of the Corporation with reference to these two clauses:
"(4) In cases where open set backs have been acquired by the ward Officers under section 299 of the B.M.C. Act and where the compensation has not been paid at all or partly paid, if the owner desires to avail of taking advantage of the land given free of cost for a D.P. Road or for the widening of the road, such cases may be considered by issuing a letter to the owner, with a copy thereof to the E.E.B.P. concerned. In such cases, the part compensation for the set-back land including compound wall already paid will have to be refunded by the owner with interest as may be decided by the Municipal Commissioner from time to time.
(5) In cases where the set backs are acquired and where the compensation is fully paid, the request for an extra floor space index for the land in set back for a Development Plan road or for purposes of a new road or widening, under B.M.C. Act should not be granted. However, in respect of cases wherein the owners have gone to Court, the question of grant of F.S.I. may be considered on merits by the Municipal Commissioner on the facts of the case."
7. Mr. Tulzapurkar and Mr. Bharucha submitted that the Corporation acquired area of 1713.90 sq. yards for set back of the road in the year 1958 and compensation was received by the then owner Gamadias. The learned Counsel submitted that respondents 2 and 3 Builders had refunded the amount of compensation received by Gamadias along with interest to the Corporation and consequently the area of set back is required to be considered for the purpose of determination of built-up area available in respect of the plot in issue. Mr. Tulzapurkar very fairly stated that the mere fact that the plot was sub-divided by the Corporation at the behest of the Builders will not entitle respondents 2 and 3 to claim that the total built-up area would be anything in excess of the total built-up area available for the undivided plot. Mr. Tulzapurkar fairly stated that if the set back area acquired in the year 1958 is not taken into consideration then the sanction granted by the Corporation for construction of Arihant Apartments is obviously in breach of the Development Control Rules because the available floor space index was already exhausted by respondent No. 2 by construction of building Tirupati. In view of this undisputed position the short question which falls for determination is whether the Corporation was right in applying Clauses 4 and 5 of the Circular while accepting the claim of the Builders that the set back area acquired in the year 1958 can be taken into account to determine the available built-up area in view of respondents 2 and 3 refunding the amount of compensation received by Gamadias.
Plain reading of Clauses 4 and 5 of the Circular makes it clear that the two clauses deal with entirely different kind of situation. Clause 4 is attracted in cases :
(a) where open set backs have been acquired by the Ward Officers under section 299 of the Bombay Municipal Corporation Act, and
(b) where the compensation has not been paid at all or partly paid.
It is not in dispute that in respect of set back area acquired in the year 1958 Gamadias had already received the compensation in the year 1963 and consequently Clause 4 of the Circular cannot be attracted to add the area of set back acquired in the year 1958 while determining the built-up area available in respect of the plot. Clause 5 deals with cases where set backs are acquired and where the compensation is fully paid. The clause provides that in such cases the request for extra floor space index should not be granted. In other words there is a clear fiat that the owner who has received the compensation shall not be permitted to refund the said amount and seek extra floor space index. The clause further recites that in case any dispute is pending in any Court of law about quantum of compensation payable then the Municipal Commissioner may on the merits of each of the case consider grant of F.S.I. The clause merely enables the Municipal Commissioner to settle disputes pending in Court of law where the owner is claiming that the compensation is not fully paid. As it is not in dispute that Gamadias had received the entire compensation in respect of the set back area of 1713.90 sq. yards acquired in the year 1958, the Corporation could have never granted the request for extra floor space index in accordance with Clause 5. It is therefore difficult to appreciate how the Builders were able to persuade the Municipal Corporation to grant extra F.S.I. for the plot by taking into consideration the area of set back acquired in the year 1958.
8. The question as to how the Municipal Corporation was persuaded to grant additional F.S.I. in favour of the Builders does not require much investigation. Complaints were lodged with the C.B.I. Authorities for illegal activities of the Builders in connivance with the Municipal authorities and C.B.I. had taken in custody the entire record in respect of the construction on this plot. It would not be out of place to mention that R.K. Gupta, the architect engaged by the Builders is involved in several fraudulent dealings in respect of properties in Bombay and several prosecutions are pending against Gupta and his co-conspirators in the Sessions Court. Gupta acting as architect for respondents 2 and 3 had made a request to the Municipal Corporation and had misled the Corporation in believing that the dispute in respect of acquisition of set back area in the year 1958 along with acquisition of set back area in the year 1962 was pending in a Court of law. The false representation made by the architect is demonstrated with reference to the note put up before the Municipal Commissioner by Executive Engineer Building Proposals (City) on June 13, 1979. Mr. Bharucha handed over a photostate copy of the note after taking inspection of the record made available by C.B.I. authorities in pursuance of our direction. The note makes interesting reading. The note sets out that the set back land admeasures 1713.90 sq. yards and that refers to the area acquired in the year 1958. The note further recites that the owners disputed the rate of compensation of the set back line and Municipal Reference No. 347 of 1963 seeking enhanced rate of compensation is pending in the Court of Small Causes. The note further recites that it is not clear as to whether the Court matter was finally decided or otherwise. The note is deliberately misleading. Mr. Setalvad produced a compilation with regard to Municipal Reference No. 347 of 1963. The perusal of the compilation, the contents of which are not disputed by the Builders and the Corporation, clearly establishes that the Reference was sought by Gamadias in respect of acquisition of set back area of 791.15 sq. yards which was acquired in the year 1962. The reference was not in respect of compensation for acquisition of land in the year 1958. The compilation also establishes that in the year 1969 consent terms were filed before the Court of Small Causes between Gamadias and the Corporation and compensation at the rate of Rs. 400/- pr sq. foot was paid. It is difficult to imagine how the Executive Engineer Building Proposals while preparing a note in the year 1979 i.e. 10 years after the filing of the consent terms in the Court of Small Causes can pretend that it is not clear whether the reference was finally decided or otherwise. The persual of the note also establishes that the Executive Engineer was deliberately misleading the Commissioner by suggesting that the dispute in the reference was in respect of the set back area acquired in the year 1958. That was obviously a false statement. The Executive Engineer at the foot of the note recommended that in accordance with Clause 5 of the Circular it is for the Municipal Commissioner to decide on merit whether the additional F.S.I. should be granted in view of the pendency of dispute in the Court. The Municipal Commissioner on July 21, 1979 made endorsement that though the full payment has been made the same is disputed and hence the Corporation may give benefit of additional F.S.I. It is obvious that the Municipal Commissioner made the endorsement by relying upon false note prepared by the Executive Engineer Building Proposals. The respondents 2 and 3 obviously through their architect made a false representation to the Municipal Corporation and Executive Engineer either blindly accepted the same or knowingly prepared the note to assist the Builders. We have no hesitation in concluding that the Builders had secured permission for construction of Arihant Apartments by false representation that the built-up area available in the Plot No. 4/755 after construction of Tirupati Apartments is 2431.45 sq. yards. The false representation was made and the Corporation illegally accepted the claim that additional F.S.I. can be granted in respect of the set back area acquired in the year 1958 as Builders have repaid the compensation amount paid to Gamadias with interest.
9. Mr. Setalvad is right in his contention that the circulars issued by the Corporation cannot over-ride the provisions of Rule 10(2) of Development Control Rules. The learned Counsel submitted that the circular nowhere permits the Corporation to sell F.S.I. by accepting the amount of compensation already paid over to Gamadias in the year 1958 Mr. Setalvad also wondered as to how payment of compensation made long prior to the enactment of Development Control Rules in the year 1967 can be refunded to the Corporation and additional F.S.I. claimed. The enabling provision under Rule 10(2) was available only in the year 1967 and could by no stretch of imagination be made retrospective and compensation already paid could have been refunded. Indeed Clause 5 of the Circular issued by the Corporation specifically prohibits the Corporation from granting additional F.S.I. when the full payment is made. In our judgment the Builders have either misled the Corporation or the authorities of the Corporation have joined hands with the Builders in securing permission to construct Arihant Apartments on assumption that the built-up area available is 2431.45 sq. yards. Mr. Tulzapurkar learned Counsel had to concede that in case the set back area acquired in the year 1958 cannot be taken into consideration then the available built-up area of the plot is only 152 sq. yards and surely the Corporation could not have granted the sanction for construction of building of 11 floors. In our judgment the sanction granted by the Corporation, therefore, is required to be struck down and respondents 2 and 3 cannot be permitted to erect any building on the plot.
10. Ratanshi Tokarshi filed Chamber Summons No. 110 of 1994 for being joined as party respondent No. 10 to the petition or in the alternate to intervene in the matter. The Chamber Summons was taken out on October 1, 1994 when the petition was placed on the Board for final hearing. We made it clear to Mr. Thakker, learned Counsel on behalf of Ratanshi Tokarshi that we will not grant the prayer for Ratanshi Tokarshi being joined as party respondent because that would lead to postponement of the hearing of the petition which is pending for last 10 years. Mr. Thakkar then requested that Ratanshi Tokarshi should be permitted to intervene in the matter and advance submissions and that prayer was readily granted. Mr. Thakkar submitted that Ratanshi Tokarshi had entered into an agreement dated November 20, 1982 with respondent No. 2 for purchase of a flat on the 8th floor of the proposed building Arihant. The learned Counsel submitted that as floors were coming up Ratanshi Tokarshi made payment from time to time and in case the sanction granted by the Corporation for construction of building Arihant is now struck down, Ratanshi would suffer severe financial loss. Mr. Thakkar submitted that as the shell of the building is already constructed upto 11 floors, the sanction granted by the Corporation should not be disturbed and at the most a penalty should be levied on the Builders. Mr. Tulzapurkar joined the submissions advanced on behalf of Ratanshi. Both the learned Counsel submitted that as the shell of the building has already been erected by the year 1984 the cancellation of the sanction granted by the Corporation would lead to financial loss. We are not at all impressed by the claim made about financial loss. It has repeatedly come to our notice that in the city of Bombay builders by joining hands with the officers of the Corporation openly flout every conceivable rule, including Development Control Rules. The builders are under the impression that once the shell of the building is illegally constructed then the Court can be persuaded to take a sympathetic view and permit the construction even though in total breach of every legal provision. The Development Control Rules were enacted by the State Government as it was realised that unregulated construction is put up by the builders at every nook and corner of the city leading to serious problems and causing serious hardship in providing civic amenities to the citizens. It is not a secret that the land available in the island city of Bombay is very limited and the prices are shooting up to an unimaginable level. Taking advantage of the situation the Builders lobby is exploiting the need of the people by setting up illegal constructions and it is unfortunate that in indulging in these illegal activities assistance is secured from some of the officers of the Corporation. It is only because of the continuous efforts of the groups like the petitioners that illegalities are brought to the attention of the Court. Once it is found that the grant of sanction to the construction of the building Arihant was in total breach of law, then we would be failing in our duty if the Builders are permitted to regularise the illegalities by offering to make payment. Time has come when everyone should realise that rule of law is not a purchasable commodity and illegalities will not be tolerated merely because someone is willing to offer payment in lieu of violating the law. In our judgment as the shell of the building Arihant has been set up in violation of the Development Control Rules, it is necessary to demolish the same. It is therefore not possible to accede to the request of Mr. Thakkar and Mr. Tulzapurkar that the illegalities should be regularised by imposing penalty. In our judgment neither the Corporation has such authority nor the Court will carry out any such exercise while presiding over writ jurisdiction under Article 226 of the Constitution.
11. Accordingly, the petition succeeds and the Municipal Corporation is directed to forthwith cancel the sanction granted for construction of building named as 'Arihant' on Plot A out of the Plot bearing City Survey No. 4/755 of the Malabar Hill and Cumbala Hill Division. The Corporation is also directed to forthwith demolish the shell of the structure standing on Plot A and constructed in pursuance of the sanction granted. The Corporation is also restrained from in any manner regularising the construction already carried out. Respondents 2 and 3 shall pay the costs of the petitioners.
At this stage Mr. Tulzapurkar, learned Counsel on behalf of the Builders, applies for stay of the operation of the order directing the Corporation to demolish the shell of the building. The Corporation to demolish the shell of the building after - December 31, 1994.
Order accordingly.