Shree Ram Urban Infrastructure Ltd. & Anr. vs State of Maharashtra & Ors.

Town Planning – Permission to construct residential building to appellant-company – Commencement Certificate granted under the provisions of Maharashtra Regional and Town Planning Act, 1966 read with Development Control Regulations for Greater Bombay, 1991 (DCR) – Thereafter incorporation of clause 24 to Regulation 33 of 1991 Regulations providing for permission to develop multi-storeyed Private Parking Lots (PPL) – On handingover of the PPL to the Corporation, incentive FSI was to be allowed on the land belonging to the private owners – Appellant-Company’s application for construction of PPL approved upto 15 floors – Incentive FSI of the PPL was to be used by the appellant -company in the main residential building – Though commencement certificate for PPL was given only for upto plinth level, the appellant-company constructed all 15 floors – Appellant-company completed the construction of main residential building upto 56 floors, though commencement certificate for that was only upto 43rd floor – Thereafter the Corporation issued a Circular on 22.6.2011 restricting the PPL to two basements, ground and four upper floors – Notice u/s. 51 and s.354A of 1966 Act seeking revocation of commencement certificate and for stopping the work of PPL beyond plinth level – Suit by the appellant-Company – Civil Court decreed the suit declaring the stop-work notice as illegal on the ground that construction of PPL above the plinth level was under deemed permission in terms of Regulation 6(4) of DCR – In appeal, High Court set aside the decree holding that construction of PPL above plinth level and construction of residential building above 43rd floor was illegal since they were constructed without obtaining commencement certificate (s) and the Court directed the appellant to apply for regularisation of these construction – PIL was filed before High Court challenging construction of residential building and construction of PPL above plinth level – The High Court in the PIL held that construction of PPL was not illegal and that since the FSI granted in respect of refuge area was excessive, Commissioner was directed to re-examine the issue – On direction of High Court in PIL, Commissioner passed order dated 12.09.2013 – The order dated 12.09.2013 was challenged by the appellant before High Court and also sought direction to the Commissioner to take over possession of PPL and to endorse the commencement certificate for residential building upto 56 floors –The Commissioner passed order dated 31.08.2016 deciding the refuge area – Subsequently Notice u/s. 51 of 1966 Act was withdrawn by the Corporation – Another PIL was filed challenging the order dated 10.11.2016 whereby the Corporation had held that since the construction of PPL had proceeded substantially on the date of notice u/s. 51, the Planning Authority cannot revoked or modify the permission – The PILs have been transferred to Supreme Court – Held: The construction of the main building as well as the PPL were as per the sanctioned plan – The construction of PPL beyond plinth level was under deemed permission under Regulation 6(4) of 1991 Regulations – The refuge area as determined by the Commissioner by order dated 31.08.2016 does not call for interference – Corporation is directed to take over possession of PPL and to proceed to decide about the 13 floors (44th to 56th floors) of the residential building – Maharashtra Regional and Town Planning Act, 1966 – ss. 48 and 51 – Development Control Regulations for Greater Bombay, 1991 – Regn. 6(4), 5(6) and 33 (24).

Partly allowing the appeal and dismissing the Transfer petitions, the Court

HELD: 1.1 It is provided in the first Proviso to section

48 of Maharashtra Regional and Town Planning Act, 1966 that permission for development or deemed permission shall remain in force for a period of 1 year from the date of receipt of such grant, and thereafter it shall lapse. It can be extended from year to year, but such extended period shall in no case exceed three years. The second proviso, as inserted by way of amendment of MRTP Act in 2007, provides that if the development is not completed up to plinth level or where there is no plinth, up to the upper level of basement or stilt, as the case may be, within the period of 1 year or extended period, under the first proviso, it shall be necessary for the applicant to make application for fresh permission. The main Section 48 does not deal with the situation where construction has been made up to plinth level or where there is no plinth, up to the upper level of basement or stilt, as the case may be, and neither first proviso deals with the situation above. The interpretation of the second proviso is clear that in case construction has been made up to the plinth level or where there is no plinth, up to the upper level of the basement or stilt, within 4 years, it shall not be necessary for the applicant to make application for fresh permission for development in the light of the second proviso to Section 48. [Para 40] [1018-D-H]

1.2 Regulation 5(6) of Development Control Regulations for Greater Bombay, 1991 (DCR) deals with the commencement of the work. It does not deal with the situation mentioned in the second proviso to Section 48 of the Act. Regulation 5(6) provides that on expiry of one year if the work has not already commenced and such renewal can be done for three consecutive terms of one year each. The Regulation has to be interpreted in tune with the provisions contained in Section 48, as amended. It cannot curtail the ken of Section 48. Thus in case construction has been done up to the plinth level within four years from the date of development permission, it would not be necessary to obtain it afresh. The finding of the High Court, to the contrary, is set aside. [Para 41] [1019-A-B]

1.3 It is apparent in the present case that in principle the approval had been granted to raise the Public Parking Lot (PPL). On 18.6.2010 at that time, Regulation 33(24) of DCR there was no restriction on the floors of PPL that came to be introduced in 2014 before that the completion of PPL has taken place. The PPL has been validly constructed under deemed permission. Additional FSI would be available as soon as the Corporation takes over the PPL. The High Court had directed the Corporation to decide the fate of 13 floors beyond the 44th floor in the impugned order concerning which the decision has to be taken as ordered by the High Court to the Corporation. The fact remains that residential building, as well as the PPL, have been constructed as per sanctioned plan, and now a final decision has to be taken by the Corporation regarding 44 to 56 floors as ordered by the High Court. The High Court rightly held that construction was not illegal as the development permission was granted, the plan was sanctioned for PPL as well as for the residential building. [Para 44] [1020-D-F]

1.4 It is apparent from Regulation 6(4) of DCR that the purpose of the intimation to be given by licensed surveyor, engineer, structural engineer or supervisor or his architect in the form of Appendix XVI to the Commissioner on completion of work up to plinth level is to enable the Commissioner to inspect to ensure that the work conforms to the sanctioned plans. It is the Commissioner’s satisfaction that work conforms to the sanctioned plans, not that of Architect of builder. It is for the Commissioner to satisfy himself, he has to inspect the work jointly with the licensed technical person or Architect within 15 days from the receipt of such notice, and thereupon he has to form an opinion whether the work conforms to the sanctioned plans and thereupon he is required to give or refuse permission for further construction as per the sanctioned plans. It is also provided under Regulation 6(4) of DSR that if within the period of 15 days, the permission is not refused, it shall be deemed to have been granted provided the work is carried out according to the sanctioned plans. Thus, it is necessary to decide whether to give permission or to refuse after inspection within 15 days of the notice. However, it is necessary for deemed permission to come into play; work of foundation up to the plinth level had been carried out according to the sanctioned plans. [Paras 52 and 53] [1024-F-H; 1025-B]

1.5 When Form XVI and the intimation submitted by appellant’s Architect on 7.5.2011 is compared, it becomes clear that notice given is rightly addressed to the Executive Engineer. The subject mentioned is the development of PPL as per the provisions of Regulation 33(24). The requirement that construction up to plinth/column up to the plinth level has been completed, in accordance with the approved plan, fulfils the requirement of the first part of the format Appendix XVI mentioned before the word “date.” After the word “date”, the requirement in the prescribed format is that “the work has been completed under my supervision” and “in accordance with the sanctioned plan.” The latter portion, in accordance with the sanctioned plan, has been mentioned in so many words. The only difference is the format prescribes that the work has been done “under my supervision and in accordance with the sanctioned plan.”. It has been mentioned that “we have complied (sic – completed) work up to plinth as per approved plans.” The architect, by the aforesaid expression, is owning that he has completed the work as per the approved plans. He owns responsibility upon himself that he has ‘complied with’ or ‘completed the work’ up to the plinth level as per approved plans, which would obviously mean that it has been done under his supervision. [Paras 56 and 57] [1027-B-F]

1.6 In the suit filed by the appellant in the plaint, it has been stated that the plaintiff ’s Architect has served notice on 7.5.2011 under Regulation 6(4) of DCR. No reply or any rejection was received within 15 days from the corporation/defendants. In written statement, the Corporation has nowhere denied that they received the notice dated 7.5.2011, nor it is denied that there was deemed permission, after the lapse of 15 days of notice under DCR 6(4). Thus, in the civil suit, for want of denial, no issue was framed on the aspect of deemed permission. Apart from that, the witness of the Corporation has admitted in the cross-examination that the letter issued by the plaintiff to the Corporation for obtaining further commencement certificate for the construction of public parking building, was received by the Corporation and that the Corporation did not reply to the said letter. It is not the case anywhere set up by the Corporation that the construction up to plinth was not as per the sanctioned plan. Thus, the deemed permission has come in force under Regulation 6(4), on expiry of

15 days from the service of notice dated 7.5.2011. [Paras 58 and 59] [1028-D; 1029-C]

1.7 It was also not the case set up by the Corporation that the notice dated 7.5.2011 was illegal, and it did not conform to Form XVI as prescribed under Regulation 6(4). The factum of the receipt of the notice has been admitted. The submission raised in the PIL that notice dated 7.5.2011 is a doubtful document is belied by the record of the Corporation and the admission made by the witness of the Corporation. The notice dated 7.5.2011 was available on the file of the Corporation, but it was not replied. The Division Bench of the High Court while deciding the PIL called for the inward register to verify whether the Corporation received the notice. It is apparent that the Division Bench of the High Court has seen the inward register also and there is a corresponding entry on 7.5.2011 as regards the acceptance of notice. It seems to have been made in the usual course. In the PIL no such plea was taken that the notice was not in Form XVI, and it was illegal. In First Appeal the Corporation did not challenge the finding of the civil court, nor did it raise the ground that owing to the failure to submit a notice in Form XVI, the letter dated 7.5.2011 cannot be treated as valid intimation and as such deemed permission did not accrue. The main ground raised in PIL was about FSI, and concerning public car parking proposal. In the special leave petition preferred against the decision of the High Court in PIL, this ground was not raised, nor was it raised before the High Court in the PIL. Thus, it was not considered appropriate by this Court to reopen the matter and reconsider it. Thus, all the issues were left open. They were only those raised earlier in the PIL by Janhit Manch. It is also pertinent to mention that in compliance of the order passed by the High Court on 13.5.2013, the Corporation has passed order on 12.9.2013, before filing the First Appeal in the High Court, in which the Commissioner of the Corporation has clearly held that in view of notice dated 7.5.2011 as per Regulation 6(4), the deemed permission came into effect on lapse of 15 days. [Paras 60, 61, 62 and 63] [1029-GH; 1030-A-F-H; 1032-B-H; 1033-A-B]

1.8 The principle of constructive res judicata bars the Corporation and the petitioner in PIL to take somersault and take a different stand in the subsequent litigation and all the available pleas, which could have been taken in previous civil suit and PIL, ought to have been raised, otherwise raising of them in subsequent lis. It is not open to the parties to take a different stand at different stages. In the instant matter, these questions cannot be taken up by the petitioner in PIL and the Corporation has not come up in the appeal against the decision dated 13.5.2013 of the High Court and has complied with the order bypassing the order dated 12.9.2013. As against the subsequent decisions taken by the Corporation according to the impugned judgment and order, Janhit Manch is before this Court. [Paras 64 and 65] [1033-C-F]

1.9 Thus the finding of the High Court concerning the illegality of the notice dated 7.5.2011 is not sustainable on merits. There was substantial compliance with Form, and the purpose of giving notice is only to enable the Commissioner to inspect and ensure that the construction raised is as per the sanctioned plan. There is admission made by the witness of the Corporation that the entire construction is as per the sanctioned plan and since the Commissioner failed to inspect after notice, thus deemed permission came into being; as such, it was open to the appellant to raise the construction of PPL up to 16th floor. There was no illegality in the same. [Para 66] [1033-G-H; 1034-A]

1.10 Absolutely wrong facts had been mentioned in the inventories, which are contradicted by the facts mentioned in the notice for demolition and also by the minimum time required for construction of each floor. Thus, no reliance can be placed on the inventory dated 22.7.2011, and stop work notice dated 16.7.2011. [Para 70] [1036-D-E]

1.11 The present case reflects some severe kind of rivalry and distortion of facts. There was an attempt made to ensure that the building is delayed or is demolished by way of filing the PIL one after the other, taking different grounds at different stages, many interventions have been filed. The Human Rights Federation had also attempted to intervene in this Court. Though earlier, a PIL, which was filed by it on 9.5.2014, was dismissed as withdrawn on 7.11.2014 to approach an appropriate forum by way of filing appropriate application/representation. The said intervenor also filed an SLP before this Court challenging the impugned judgment and orders dated 22, 25, 27.1.2016 passed by the High Court. This Court has rejected the prayer, dismissed the SLP filed by the petitioner to avail of any other remedy. After that, the intervention application has been filed. The intervenor cannot enlarge the scope of PIL. Therefore, the intervention application filed on behalf of the said Federation is rejected. [Para 71] [1036H; 1037-A-C]

1.12 The provisions of Regulation 33(24) containing no restriction on the number of floors of PPL, came into force on 20.10.2008. The development permission had been granted to the appellant in the year 2010, when Regulation 33(24) of DCR was in vogue. Development permission has been granted on 18.6.2010 after 1 year 10 months and thereafter commencement certificate had also been granted on 1.10.2010 with respect to PPL and notice under which deemed permission accrued under DCR 6(4) had been served on 7.5.2011 by the Architect. Once deemed permission accrued to the appellant on lapse of 15 days, the construction had been completed in 2012 before the amendment was made in the Regulations in 2014. The order of regularisation was not necessary because of deemed permission. Thus, the High Court has rightly held that the decision of the Corporation applying the Circular dated 22.6.2011 was impermissible as it did not have the force of law, and it stood quashed by the High Court in other cases. It could not be said that the Circular of 2011 was supplementary to Regulation 33(24) of DCR. It was clearly in derogation to it and could not have prevailed over a statutory provision. [Paras 74 and 75] [1038-BE]

1.13 The provisions of Section 337 do not restrict the ambit and scope of Regulation 6(5) of DCR. Initial permission had been obtained for development, and during construction, further variation could have been made. The provision of Section 346 is of no help as, at no point in time, the development plan had been disapproved. The question of modifying disapproval is not germane. [Para 78] [1039-E-F]

Kohinoor CTNL Infrastructure Co, Pvt. Ltd. & Anr. v. The MCGM & Ors. (2013) 3 BCR 410; Suresh Estates Pvt. Ltd. & Ors. v. Municipal Corporation of Greater Mumbai & Ors. (2007) 14 SCC 439 : [2007] 13 SCR

882 – referred to.

2.1 The determination of the refuge area was done by the CFO, who is the competent and technical authority. The decision of the CFO has been revisited by 3 successive Commissioners and has been confirmed while approving the sanctioned plan merely because some apprehension was raised about possible misuse of the refuge area. It is impermissible to revisit the said decision. Based on possible misuse, the planning permission cannot be questioned nor can be revoked. [Para 81] [1042-B-D] Indore Municipal Corporation & Anr. v. Dr. Hemalata & Ors. (2010) 4 SCC 435 – relied on.

2.2 In the order that has been passed by the Municipal Commissioner pursuant to the impugned judgment passed by the High Court, re-determining the refuge area, it has been reduced to 23% only. The CFO has considered the higher requirement of building and providing a separate refuge area for each of the flat that is to say that four refuge areas on each floor, one attached to each flat, has been approved by the CFO and the Corporation. The permission was granted way back in the year 2006 and the inspection note dated 11.11.2011 indicates that the construction of the residential building had been carried out up to a height of

180 meters i.e., 36th floor, the permission was granted in 2006 and commencement certificate had also been issued from time to time. The construction of the residential building had been raised to the 36th floor in 2011, and Janhit Manch awakened first time to file PIL No. 43/2012 in the High Court. Thus, it was a belated petition. For fire safety, with respect to the refuge area, the view of the Fire Safety Officer has to prevail not ipse dixit whether it would be appropriate to have more area or the lesser cannot be said to be acceptable which appears to be a hang-over, the objection appears to be more the outcome of some grudge harboured by unknown hands behind Janhit Manch. [Para 83] [1043-C-F]

2.3 The objections have been raised on behalf of Janhit Manch concerning the height of service floor and elevation features like flower beds, ornamental projection, servant toilets, and structural columns concerning which the Commissioner, Municipal Corporation had given in extensive details the reasons for the decision rendered by it. This Court is not an expert in the field of determination of refuge area and therefore, when Corporation and Chief Fire Officer had granted permission, it cannot be said that any tremendous public purpose is going to be served by entertaining the belated objections which appear to be the outcome of some business rivalry between warring groups. The order passed by the Municipal Commissioner dated 31.8.2016 with respect to refuge area cannot be said to be illegal or arbitrary in any manner in the facts and circumstances of the case, mainly due to the fact that permission had been granted by the CFO as well as the corporation which has been questioned belatedly. [Para 84] [1043-G-H; 1044-A-B]

T. Vijayalakshmi & Ors. v. Town Planning Member & Anr. (2006) 8 SCC 502 : [2006] 7 Suppl. SCR 534; Pune Municipal Corporation & Anr. v. Promoters & Builders Association & Anr.(2004) 10 SCC 796 : [2004] 2 Suppl. SCR 207 ; Godrej and Boyce

Manufacturing Co. Ltd. v. State of Maharashtra & Ors. (2009) 5 SCC 24 : [2009] 1 SCR 1016 – referred to.

3. There was deemed permission for PPL under Regulation 6(4) as per notice of Architect dated 7.5.2011. Therefore, it cannot be said that the order passed by the Additional Municipal Commissioner dated 10.11.2016, deciding the show-cause notice dated 29.11.2011 and holding that the construction of the PPL had substantially progressed, and as such, the entire PPL can be regularised, is contrary to law. Moreover, it is not necessary to go into the question of whether the notice dated 29.11.2011 survives or not for the decision, as it has been held that there was deemed permission. Thus, there was no question of regularisation of the PPL.[Paras 85 and 86] [1044-F-H] Muni Suvrat-Swami Jain S.M.P. Sangh v. Arun

Nathuram Gaikwad & Ors. (2006) 8 SCC 590 : [2006]

7 Suppl. SCR 118 – referred to.

4. The order of the High Court is set aside in part and the finding recorded by the High Court that no deeming permission accrued under Regulation 6(4) of Development Control Regulations, 1991 are also set aside. Deemed permission accrued, and concerning the determination of refuge area as per order dated 31.8.2016 passed by the Municipal Commissioner, no interference is called for. Order dated 31.8.2016 passed by the Municipal Commissioner regarding the refuge area is upheld. Petitions filed by Janhit Manch deserve dismissal. The Corporation is directed to take over PPL and to proceed further do decide concerning 13 floors, i.e. 44 to 56 floors of the residential building. [Paras 89 and 90] [1045-C-E]