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11 WP 1884 of 2011 and group 6 The Municipal Commissioner gave hearing to the petitioners in W.P.1884/2011 as well as to the respondent No.3, who has filed the Writ Petition against the aforesaid constructions. The Commissioner has given his findings which starts from para 4.1 onwards in his order. So far as Lily Ponds and Deck areas are concerned, the Municipal Commissioner has considered DC Regulation No.30(ii)(a), which permits permissible features in open space as per the said DC Regulation. As per the order of the Commissioner, the features mentioned in the said rules, should only on the ground floor, beyond the required open spaces and they should be uncovered. The Commissioner found that there is no mention of Deck area in the D.C.Regulation 30 or 35(2). It is held by the Commissioner that as per the DC rules, it is clear that deck/part terraces provided near habitable rooms should be a common area, which shall be accessible from the common staircase. It is found that this is not a case in which deck is provided to each flat for exclusive use near the lily pond and the same is not permitted in the DC regulation as the lily ponds and the deck areas are also duly covered and are not open to sky. It is also found that as per the intent and spirit of the DC regulations, lily ponds area on every floor is not permissible, except on the ground floor. The Commissioner accordingly found that the covered deck areas at upper floors, exclusively attached to flat, cannot be allowed free of FSI to individual flats owners. He relied 12 WP 1884 of 2011 and group upon Regulation 6(1) of DCR, which provides that the construction to be in conformity with Regulations and neither the grant of permission nor approval of the drawing and specifications nor inspection by the Commissioner during erection of the building, shall in any way relieve the owner of such building from full responsibility for carrying out the work in accordance with these regulations. The Municipal Commissioner found that since there is no provision under DC Regulations to allow these areas free of FSI, these are required to be counted in FSI. Accordingly, Lily ponds and deck areas are permitted to be counted in FSI. On that basis, it is directed by the Commissioner that these areas should be demolished or equal areas of upper floors be demolished and if these areas are to be retained by the owners, working out the revised FSI computation accordingly.

9 The learned counsel for the petitioner submitted that the Commissioner himself found that the deck parking is not in variation of the sanctioned plan and against the Rules and in that view of the matter, he has no jurisdiction to pass any order to security deposit on an apprehension that the same area is likely to be misused in future.He submits that the said order of the Commissioner is therefore, without any jurisdiction and is liable to be set aside. He has relied upon the provisions 16 WP 1884 of 2011 and group of Section 53(1) of the M.R.T.P.Act. It is submitted that such order could not have been passed after the construction is completed and merely on the ground of apprehension of misuse of the said deck parking area. He submits that in any case, such deposit can never be treated as a premium for any other purpose. In a given case, even if it is presumed that the deposit can be recovered, there cannot any direction of deposit of the amount, as it is to be refunded after a particular time limit (Section 22(m) of the M.R.T.P.Act. The learned counsel for the petitioners submitted that the order of asking the petitioners to give security deposit, on the face of it, is without any jurisdiction and is required to be set aside. It is further submitted that in view of the requirement under Regulation 5(3) wherein the procedure for obtaining development permission and commencement certificate are postulated and they have to be followed at the time of sanctioning the plan and such security deposit is required to be returned back as per the time limit prescribed under the Rules. It is submitted by th learned Counsel for the petitioners that Regulation 5 of the DC Rules, is applicable only at the time of giving development permission and such power cannot be exercised subsequently. Regarding lily ponds, it is submitted that the same is in sanctioned plan and sanctioned plan provides the dimension and depth. It is submitted that the depth of the lily pond is only four feet and therefore, it is impossible to believe that it is 17 WP 1884 of 2011 and group a swimming pool. It is submitted that it is nothing but an architectural feature and projection.

13 In so far as the affidavit-in-reply filed by the Corporation in 22 WP 1884 of 2011 and group an earlier petition is concerned, the learned counsel for the respondent-

Corporation submitted that it was merely filed to oppose the petition and therefore, it cannot be said that the Commissioner has taken contrary stand to the said affidavit. Regarding the deck parkings area are concerned, he has relied upon Regulation 2(47) DC Rules. He also relied upon the provisions of the Maharashtra Ownership Flat Act, 1963, in order to point out the meaning of the word 'Garage'. He submitted that the garage is a part of a building which is a parking place. He submitted that in any case, the Commissioner has passed the balanced order regarding giving option to the builder regarding additional FSI from 11th floor which is under consideration. He relied upon Regulation 2(47) of the DC Rules and relied upon the Judgment of the Supreme Court in the case of Nahalchand Laloochand Private Ltd. V/s. Panchali Cooperative Housing Society Ltd.1, which is in connection with the Maharashtra Ownership of Flats Act. He submitted that in view of the said judgment, the garage is a portion of flat and so it cannot be included in FSI. He submitted that so far as the order of security deposit is concerned, it is permissible as per Section 27 of the M.R.T.P.Act and according to him premium and deposit are the same. He relied upon the decision of the Supreme Court in M.I.Builders Pvt. Ltd. V/s.Radhey Shyam Sahu and 1 (2010) 9 SCC 536 23 WP 1884 of 2011 and group Ors.1He submits that in any case, since the builder has committed violation of the DC Rules, this Court cannot exercise its extra ordinary jurisdiction and may relegate the petitioners to file appropriate civil proceedings if they so desired, as this Court is not bound to exercise powers under Article 226 of the Constitution of India, considering the conduct of the party do not justify exercising such powers. He submitted that in view of increasing density of population, construction contrary to FSI provisions is not to be permitted.

36 In so far as the deck parkings is concerned,it is true as argued by the learned counsel for the petitioners that there is no provision under the DC rules to charge security deposit at a subsequent stage as it is clear that the deposit is to be taken under Section 22(m) of the M.R.T.P.Act, at the initial stage while granting development permission and commencement certificate, especially when the earlier Commissioner has granted special permission under the DC Rules in this behalf.