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The existing "Rashid Mansion" located on the land bearing CTS 63 of Colaba Division situated at Shahid Bhagat Singh Road, Colaba, admeasuring approximate 2225.49 sq.yards equivalent to 1860.79 sq.m was accorded sanction under Section 36(1)(C) of the Bombay Public Trust Act, 1950 by the Joint Charity Commissioner in 2006. The leasehold Tilak 5 WP-3217-18.doc rights came to be transmitted to the petitioner from Maskati Charitable Properties Trust who was assigned the leasehold rights. The said Rashid Mansion was categorized as "A" category cessed building and was in a dilapidated and dangerous condition. The petitioner proceeded to redevelop the same by constructing a residential building as per the existing development laws and regulations. 3 The petitioner commenced the redevelopment of the property in or about December 2006 and was granted permission for development of the residential building by the planning authorities. The petitioner through its Architect submitted the application in terms of Section 44 of the MRTP Act seeking requisite permission for development/construction of the building in or around 2006. In pursuance thereto, the MCGM issued its intimation of disapproval (IOD) on 22nd July 2008 under Section 346 of the MMC Act in favour of the petitioner. The IOD stipulated various conditions including obtaining NOC from various authorities but even it did not contemplate seeking of NOC from defence authorities. Tilak 6 WP-3217-18.doc Pursuant to a commencement certificate issued on 21 st July 2009, the petitioner commenced construction of a multi storeyed residential tower captioned as "Water Front Tower". In the mean time, the State Government issued a resolution on 4th September 2009 through its Urban Development Department, pursuant thereto Regulation 67 of DCR was modified and a result of which redevelopment of building under DCR 33(6), 33(7), 33(8), 33(9) and 33(10) of Heritage building, sites and precincts was permitted beyond 24 metres subject to the approval of respondent no.2. In view of the removal of height restriction embargo, the petitioner through its Architect submitted amended plans to respondent no.1 and sought permission for development of a building with height upto 158.56 m which was duly approved by respondent no.1 on 15th October 2009. Till this stage, there was no stipulation of obtaining any NOC from defence authorities. On 27 th August 2010, the Commencement Certificate (CC) dated 21 st July 2009 was endorsed upto plinth i.e. top of service floor in furtherance of the amended plan approved on 15th October 2009.

In the wake of the aforesaid development, the petitioner raises an objection to the letter 2nd March 2017 issued by the respondent no.7 without any authority of law directing the stoppage of construction on the said property and it is this communication which torments the petitioner, which was followed by a further stop work notice dated 16 th March 2017. The petitioner addressed a communication to respondent no.1 on 20th April 2017 inviting attention as to why the NOC from the L & A/Defence Establishment was not required, but this did not yield any result and a communication was issued on 22nd April 2017 by respondent no.7 which was addressed to the Executive Engineer (BP) City-II, alleging that the Commencement Certificate issued by the respondent no.1 on 25th February 2015 and 21st January 2017 was in alleged violation of purported circulars dated 18th May 2011 and 18th March 2015 issued by the Ministry of Defence. The said letter purported to suggest that the property was located at a distance Tilak 14 WP-3217-18.doc of 319.22 metres from the out most periphery of Colaba Military Station (CMS) which is alleged to be within the restricted zone of 500 m and hence, NOC cannot be granted. The petitioner also seeks to challenge the said letter dated 22 nd April 2017 and is aggrieved by the said action of the respondent authorities, the petitioner has approached this Court seeking a relief which we have already reproduced above. 6 We have heard learned Senior counsel Shri Milind Sathe appearing for the petitioner. Shri Sathe would submit that the only ground on which the MCGM has revoked all its earlier permissions granted in favour of the petitioner is that the respondent no.7 by its communication dated 22 nd April 2017 has refused to grant NOC for development of the project on the ground that it was located within a distance of 319.22 metres of the Colaba Military Station and it is in violation of the circular dated 18th May 2011 and 18th March 2015. The learned senior counsel would submit that the impugned stop work notice based on the communication of respondent no.7 is contrary to the provisions of MRTP Act and also the Tilak 15 WP-3217-18.doc Development Control Regulations and the circulars issued by the State Government and in particular, the circular dated 7 th November 2016 which are binding on the planning authorities by virtue of Section 154 of the MRTP Act and has the force of law. According to Shri Sathe, the imposition of condition mandating NOC from the defence authorities as a condition precedent to the petitioner continuing with its redevelopment work of construction is ultra vires the provisions of MRTP Act and the D.C. Regulations. He would submit that insistence on the NOC is contrary to the circular issued by the State Government on 7th November 2016 which supersedes all the earlier circulars and as far as State of Maharashtra is concerned, restrictions with respect to construction activity are applicable only in respect of areas set out in Annexure A and this includes the areas like Kalina, Trombay, Ghatkopar, Wadala, Cross Island, Malad and Kandivali in the State of Maharashtra. The defence location situated at Colaba , according to Shri Sathe does not form part of the list of defence establishments to which the Ministry of Defence has imposed any restriction vide the circular dated 21st October 2016. Shri Tilak 16 WP-3217-18.doc Sathe would thus submit that when the defence establishment did not itself intend to impose any restriction in this particular area, it is high-handed on the part of the respondent no.7 to refuse to grant NOC. Dr. Sathe would also advance a further submission to the effect that even assuming that the circular issued by the Ministry of Defence continue to apply, perusal of the said circulars would itself disclose that the restrictions imposed vide circulars dated 18th May 2011 came to be relaxed by issuance of a further circular dated 18 th March 2015 granting relaxation in favour of those construction for which permission has been issued by a competent local municipal authority prior to 18th May 2011. According to the learned senior counsel, IOD was issued in favour of the petitioner for redevelopment of Rashid Mansion in terms of Regulation 33(6) on 22 nd July 2008 itself and the Commencement Certificate was issued on 21 st July 2009 upto plinth level and subsequently further Commencement Certificates were issued from time to time. Dr. Sathe would submit that the MCGM through its competent authority ie. Chief Engineer granted approval permitting height of the proposed building of 158.58 metres vide their Tilak 17 WP-3217-18.doc communication dated 6th October 2009 and by 27th August 2010, C.C upto 46.04 metres was issued. Dr.Sathe would submit that the petitioner has thereafter reduced the height from 158.56 metres to 127.53 metres and this amendment of reduction in height, was duly approved by the MCGM. He would thus submit that the proviso incorporated in the circular of 18th March 2015 issued by the Ministry of Defence is not at all attracted in the case of the petitioner since by amending the plans, the petitioner has sought to reduce the height of 127.53 metres whereas the IOD approved the plans which contemplated a building of 158.58 metres. In these circumstances, learned senior counsel would submit that the stop work notice issued by the MCGM at a belated stage when the building is already constructed in pursuance of the permissions granted by the MCGM from time to time is violative of Article 14, 19 and 300A of the Constitution of India. Further, it is also attempted to canvass before us that the stop impugned notices are issued without affording any opportunity of hearing to the petitioner and is therefore, violative of the principles of natural justice and fair play. The imposition of Tilak 18 WP-3217-18.doc impugned condition has been assailed as being contrary to Section 51 of the MRTP Act which provides that once a development permission is granted, no new additional condition can be imposed nor can such permission be modified or revoked without affording an opportunity of being heard. The practical hardship is also being pressed into service by inviting out attention to the fact that more than 90% of the building is complete and the balance work of only four floors is required to be completed. Reliance is placed on the judgment of this Court in case of Hedavkar Mechanical Works, and others Vs. State of Maharashtra, where the Division Bench of this Court has frowned upon the imposition of additional conditions at a later stage.

Tilak 35 WP-3217-18.doc 14 On examination of the dates of events involved in the petition, it is apparent that the petitioner acquired the leasehold rights from a charitable trust of a land measuring 1860.79 sq.m along with its structures standing thereon in the name of Rashid Mansion on 30th October 2006. The intimation of disapproval was issued in favour of petitioner for redevelopment of the said premises on 22nd July 2008. The IOD issued stipulated certain conditions to be complied with before the commencement of work stage wise, including the construction at plinth level and construction of the super structure. The said IOD included several stipulations to obtain NOC from various authorities but did not contain a stipulation of seeking NOC from the defence authorities. The IOD issued under Section 346 of the Mumbai Municipal Corporation Act is reflective that the Commissioner did not disapprove of the building or work of which the notice was given by the petitioner and on compliance with the condition and reasons for its disapproval, and the prescribed terms, the building or work is deemed to have been approved by the Commissioner. The commencement certificate was also issued in favour of the Tilak 36 WP-3217-18.doc petitioner on 21st May 2009 under the caption "Proposed Redevelopment under the provision of D.C. Regulation 33(c) to the existing building on the plot bearing CS 63 of Colaba Division and the building permission under Section 346 of the BMC Act 1888. The certificate issued for commencement was initially valid upto 20th July 2010 and was granted for plinth level i.e. upto first podium top slab as per approved plan dated 22nd July 2009 and contemplated a height of 46.04 metres level as per approved pan dated 15th October 2009. This was extended from time to time and it was extended upto 16 floors as per amended approved plan dated 25th February 2015 and lastly, for entire building as per approved plan dated 25th February 2015. The certificate was liable to be revoked by the Municipal Commissioner if :-

The guidelines were issued by the Ministry of Defence on 18th May 2011 and NOC is sought from the defence authorities by relying on the said circular where the construction is coming up within a radius of 500 metres (for multi storeyed building of more than 4 storeyed) where the establishment poses a security hazard. Perusal of series of circulars disclose that this circular came to be modified by a subsequent circular on 18th March 2015 and the conditions contained in circular of 18th May 2011 are not to be made applicable to those permissions prior to 18th May 2011. The said circular uses the terminology "Permissions" and this would contemplate the permissions which are necessary from the Tilak 41 WP-3217-18.doc planning authority under the local planning laws. The construction of the petitioner is governed by the Mumbai Municipal Corporation Act, 1888 and it would thus contemplate the permission by the said planning authority under the said enactment. The said enactment stipulates framing of building regulations under Chapter 12 and contemplate a notice to be given to the Commissioner of an intention to erect the building under Section 337 and the Commissioner may require the plans and offer documents to be furnished. The commencement of work is contemplated under Section 345 and Section 346 contains a stipulation of an IOD when a building or work which is disapproved by the Commissioner may be proceeded with subject to the stipulations contained in the IOD and section 347 provides as to when the work may be commenced. The petitioner complied with the provisions of the said enactment before the commencement certificate was issued and has placed on record the steps taken by him with the approval of the planning authorities. All the steps do indicate that the construction of the petitioner commenced prior to 18 th May 2011. The circular of 18th March 2015 relaxes the restriction Tilak 42 WP-3217-18.doc sought to be imposed by circular dated 18 th May 2011 issued by the Ministry of Defence if the permissions are granted by the competent authority prior to 18th May 2011. The MMC enlists the provision for permission to be sought and the manner in which it is granted. The planning authority through series of communications gave a positive indication to the petitioner to proceed with the construction in terms of the DCR and the petitioner complied with the stipulations contained in the IOD and all those conditions imposed while granting the commencement certificate. The approval letter dated 25 th March 2013 approved the revised plans and permitted the reduction of height of the building to 127.53 m in place of its original height of 158.56 m. Even the High Rise Committee issued NOC to the petitioner permitting construction of a building upto height of 157.53 m.