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(a) The grant of various concessions in respect of the irregular structures were not in accordance with the intent, spirit and letter of the Development Control Regulations for Greater Bombay, 1991. That the only discretionery powers of the Municipal Commissioner to grant relaxation and permit the modification of dimensions described by the Development Control Regulation was provided under Section 64(b) of the said Regulations. That this could be done only in those cases where clearly demonstrable hardship was caused. Such hardship could not be that of the builders/developers who had erected an illegal structure in violation of law. Even in such cases the Commissioner was enjoined with the duty to record reasons In writing and permit only by a special permission, any of the dimensions prescribed by the regulation to be modified except those relating to F.S.I, unless otherwise permitted under these Regulations and also provided that such relaxation would not affect the health, safety, fire safety, structural safety and public safety of the inhabitants of the building and neighbourhood.

(c) It was contended that in practically all the cases, the record indicated that a noting had been put up by a subordinate Engineer of the concerned Ward and thereafter signatures were appended in approval by the Deputy Chief Engineer, Chief Engineer, Director (ES & P) and Municipal Commissioner. While affixing his signature, apart from a very few cases (in which the Municipal Commissioner had written the remark "discuss") not in a single case had the Municipal Commissioner separately and independently dealt with the subject matter of regularisation on merits. It was contended that in the original noting, there was no reference to any "clearly demonstrable hardship" for granting the modification/relaxation. It was further contended that neither at the stage of preparing the original noting, nor at the stage of affixing signature of the higher authority including Municipal Commissioner was there anything to indicate that the relaxation granted would not affect the health, safety, fire safety, structural safety and public safety of the inhabitants of the building and the neighbourhood. In fact, there was nothing to suggest that these aspects were even examined. In this connection, it was further pointed out that where additional floors had been put up, no inspection regarding the structural safety had been carried out by the Bombay Municipal Corporation. To certify that the proposed regularisation of additional floors would not affect structural safety, the Bombay Municipal Corporation had solely relied upon a bare certificate of the Structural Engineer hired by the builders/developers or their architect.

12. In the matrix of the aforesaid facts and provisions of law, in our view, there Is no difficulty in asserting that, the power of the Municipal Commissioner to permit the retention of an unauthorised development flows from Section 53(3) read with Sections 44 and 45 of the M.R.T.P. Act, 1966.

13. However, what we find is that the manner in which such powers should be exercised and the limitations on the exercise of such powers are contained in Section 46 of the M.R.T.P. Act, 1966, read with reg. 64(b) of the Development Control Regulations for Greater Mumbai, 1991, These two provisions are to be read together and harmoniously. When the Municipal Commissioner is considering an application for permission to retain an unauthorised development, he is required by Section 46 to have "due regard to" to the provisions of any draft or final plan or proposal published under the M.R.T.P. Act, 1966. It is an admitted position before us that the Development Control Regulations for Greater Mumbai, 1991 are a part of such plan. We accept that the words "shall have due regard to" would not mean "shall only have regard to" but in our view, they cannot be construed to mean "shall have disregard to". Even accepting that the Development Control Regulations for Greater Mumbai, 1991 are in the nature of guidelines, such guidelines cannot be disregarded or violated. The D. C. Regulations are made in details to rule out any ambiguity. They have been sanctioned by the State Government under Section 31(1) of the M.R.T.P. Act. Obviously the express provisions therein are meant to be followed. The exercise of powers by the Municipal Commissioner will therefore, be constrained by the limitations contained in reg. 64(b) whenever the power exercised is under the said provisions. The power to give concessions by way of relaxation under reg. 64(b) can only be done in specific cases where a clearly demonstrable hardship is caused as provided thereunder. This hardship is not only the self created hardship of the builders/developers/architects but the Commissioner is also required to take into account the hardship which may be caused by the proposed modification to other directly affected persons such as residents, purchasers and neighbours. While exercising his powers, if any of these persons make a representation, the Commissioner would be duty bound to take into account such representation. Besides, what can be modified/relaxed under Section 64(b) are only "dimensions prescribed by these Regulations". By the term dimension what is meant is length, breadth, height, area and volume. The order passed must indicate that the Commissioner applied his mind to the existence of demonstrable hardship. It must also indicate that the Commissioner had applied his mind to ensure that the grant of such modification/relaxation will not affect the health, safety, fire safety, structural safety of the inhabitants of the building or neighbourhood. Since Section 64(b) requires that the order of the Commissioner granting modification/relaxation should be passed for reasons to be recorded in writing by special permission, the Municipal Commissioner cannot delegate these powers in view of the constraints on his powers of delegation contained in reg. 63 of the Development Control Regulations for Greater Mumbai, 1991. In our view, the provisions of Section 56 of the Mumbai Municipal Corporation Act, 1888 cannot be relied upon to contend that the Municipal Commissioner can delegate his powers under Section 64(b) notwithstanding the constraints on delegation as contained in Regulation 63 of the Development Control Regulations For Greater Mumbai, 1991, The powers and duties of the Commissioner which the Commissioner can depute to the Director (Engineering Services and Project) are the powers which he exercises under the Mumbai Municipal Corporation Act, 1888 and not the powers conferred upon him by the M.R.T.P. Act, 1966. The delegation of powers and duties to be performed by the Municipal Commissioner under the M.R.T.P. Act, 1966, in every case where he has to give "special permission", is expressly prohibited by reg. 63 of the Development Control Regulations for Greater Mumbai, 1991. The Municipal Commissioner is required to give due regard to these aspects while deciding an application for retention under Section 53(3) read with Sections 44, 45 & Section 46 of the said Act.

20. Before we part we would like to impress upon the Commissioner that reg. 64 contains the discretionary powers and by their very nature these are powers to be sparingly exercised in specific cases where a demonstrable hardship is caused. Thus this provision is to be utilised as an exception and not by way of a rule. In normal cases the D.C. Regulations must be applied as they are. What we find here is an unfortunate phenomenon of a planned subversion of these regulations by persons who are beneficiaries thereof, 128 cases is not a small number and it clearly shows a modus operandi. Besides demonstrable hardship will normally mean a situation arising inspite of attempting to follow the regulations. If a plan of a builder is sanctioned on a certain layout for certain number of floors normally no additional floors can be permitted. This undermines the strength of the building affecting the health and safety. The Commissioner will appreciate that he represents the interests of the citizens and must function as a watchdog. He must appreciate that these departures from rules for the benefit of a few is severally undermining the quality of life in urban areas. We record our appreciation for the petitioners for raising this issue, it is only such action and response thereto which restores the faith of the citizen in the democratic systems.