Petitioner sought regularisation of user change from residential to commercial. Court directed deposit of money per 1996 circular and stayed prosecution pending Executive Engineer's reasoned decision on applicable circular.
Directed to deposit money per 1996 Circular; prosecution stayed pending Corporation's decision.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1624 OF 2005 Ms Marium Zaveri Adult of Mumbai, Indian Inhabitant carrying on business in the name of M/s.Emeralde International Hair & Beauty Care-cum-School of Beauty Culture & Hair Dressing as its Sole Proprietress from her address at Flat No.103, 3rd Floor, Zeba Apartments, 33B, Hill Road, Bandra (West), Mumbai 400 050.
: Petitioner
V/s.
2.The Executive Engineer-Western Suburbs (Building Proposal), H-West Ward, M.C.G.M., having his office at S.K. Patkar Marg, Bandra (West), Mumbai—400 050.
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Road, Bandra (West), Mumbai—400 050. : Respondents
Mr.N.G. Bhatt for the petitioner.
Ms Priti Purandare for the respondents.
CORAM : DALVEER BHANDARI,C.J. & S.A. BOBDE, J. DATE : OCTOBER 14, 2005.
ORAL JUDGEMENT (Per Dalveer Bhandari, C.J.)
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changed the user from residential to commercial i.e., for running coaching classes for beauty culture, without
permission. According to the petitioner, for regularisation, the petitioner is under an obligation to pay in accordance with the circular dated 24.12.1996 dealing with penalty to be charged for regularisation of unauthorised change of user in existing buildings. The Circular reads as follows:-
“MUNICIPAL CORPORATION OF GREATER MUMBAI
No.CHE/3140/DPC of 24-12-96
CIRCULAR
Sub: Penalty to be charged for regularization of unauthorized change of users in existing buildings.
Ref: Circular u/No.CHE/4808/DPC of 24-4-96.
The policy circular issued under No.CHE/4808/DPC on 24-4-96 lays down compensation charges to be recovered for regularization of various categories of unauthorized work carried out beyond approved plan
or before issue of C.C.etc. The said circular however, does not specify the penalty to be
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recovered for regularization of unauthorized change of users.
It is now decided to recover penalty at the rate of 15% of the land rate applicable for the locality, (premium), as approved by the M.C. from time to time as per Sr. No.5 of above policy circular.
The staff working in Bldg. Proposal Section should take note of above & recover penalty for regularization of unauthorized change of user as per above policy.
Sd/- 31-10-96 Sd/- 1-11-96 Sd/- 30-11-96
Dy.Ch.E.D.P.(1) CH.E.(D.P.) Director (E.S.&P.) i/c.
No.CHE/3140/DPC of 24-12-96.
Copy forwarded for information please.
Sd/21-12-96 DY.CH.E.(D.P.)I.”
The case of the petitioner is that the petitioner be governed
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according to the terms and conditions of this circular and
whatever penalty which has been incorporated in the circular, she is prepared to pay.
“MUNICIPAL CORPORATION OF GREATER MUMBAI No.CHE/77/DPC/Gen. dt. 17.06.04
Sub:-Order of Hon'ble High Court in PIL 379 of 2003 in respect of 154 cases.
Ref:- MCP/8816 dt. 20.5.2004
In view of the aforesaid order, it has become necessary to revise the policy in respect of charging premium for carrying out works beyond approval/C.C.etc. The policy hitherto being followed and which has also been submitted to Hon'ble Court is enclosed at P.77-79. It can be seen therein that the penalties have been proposed as 5% to 15% of the land cost and later on the penalty for the total unauthorized work has been doubled i.e. 30% of the land cost. The land cost here is considered as premium rates issued by M.C.G.M. from time-to-time
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by M.C.G.M. based on Ready-reckoner rates (25% of R&R).
The matter was discussed with the Zonal Dy.Ch.E. (B.P.) and E.E.B.P.s in order to device a stringent penalty so as to discourage the developer from carrying out work without/beyond approval.
It was general consensus that so many categories being followed in the earlier circular should be scrapped so as to be simple for implementation. After general consensus, following guide-lines were agreed upon:-
| Category | Type | Scale of penalty % of premium rates (25% of R&R rates) |
|---|---|---|
| (1) | Work carried out beyond C.C. but within the approvedplan |
10% |
| (2) | Work carried out beyond C.C. and within the approved plan but after issue of stopwork notice. |
20% |
| (3) | Work carried out without approval but within plot potential. |
30% |
| (4) | Work carried out without approval but regularizable by way of user TDR or amalgamation of additionalplots etc. |
40% |
The mode of charging premium for condoning the
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deficiency in open space etc. was also discussed when it was opined that, presently, for condonation of deficiency
in open space affected area of all the floors is being considered instead only at land level which itself is deterrent and the premium for condonation of deficiency at times, works out very huge. Therefore there appears to be no need to change the present practice in this respect. As regards charging premium for staircase, lift, F.S.I. etc., the present policy of charging premium rates
and circulated by M.C.G.M. from time-to-time (25% of R
& R rates) will be continued.
In view of above, approval of Dir.(E.S.& P.)/M.C. is requested to the above policy vide portion side-lined `X' above, so that the same will be applicable while considering regularization cases under 154 or other such cases.
Submitted please.”
According to the petitioner, she cannot be governed by this circular.
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Parle, Mumbai, shall remain stayed, till the Corporation decides the controversy, after hearing the parties, by a
reasoned order.
CHIEF JUSTICE
S.A. BOBDE, J .
2 issues framed by the court
Whether the petitioner claiming regularisation of residential to commercial user is governed by the 1996 or 2004 penalty circular.
Whether the prosecution against the petitioner should remain stayed pending the corporation's decision on the applicable circular.
3 provisions across 3 enactments
Ms Marium Zaveri
The Municipal Corporation of Greater Mumbai
Dalveer Bhandari
S.A. Bobde
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
