Dismissed

Meenal Mohan Lokegaonkar. Secretary Janjagruti Seva Sangh (Regd.) Mumbai v. the State of Maharashtra and 6 Ors.

Bombay HC19 Jul 2007PIL/120/2006

Case brief

AI extract

What is this about?

This PIL concerning illegal construction on reserved land for parking and housing the dishoused was dismissed. The Court found that respondents had complied with reservations by providing a multi-storeyed parking lot and handing over tenements to the Corporation, rendering the construction lawful.

What did the court decide?

Rule discharged; the petition for direction to demolish construction was dismissed as the development complied with reservations.

Meenal Mohan Lokegaonkar. Secretary Janjagruti Seva Sangh… — Property and Title | Bombay HC (2007)

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`IN THE HIGH COURT OF JUDICATURE AT BOMBAY` `ORDINARY ORIGINAL CIVIL JURISDICTION`
`Public Interest Litigation Petition No. 120 of 2006`
`1. Meenal Mohan Lokegaonkar )` `Secretary, Janjagruti Seva )` `Sangh (Regd.), Khotwadi, )` `Beasant Road, Santacruz )` `(West), Mumbai 400 054 )`
`2. Avinash Jain, Secretary )` `Mumbai Chhatra Yuva Parishad)` `4, Arun Apartments, Tilak )` `Road, Santacruz (West), )` `Mumbai 400 054 ) ..Petitioners`
`vs.` `1. The State of Maharashtra )` `through the Secretary, Urban)` `Development Department, )` `Government of Maharashtra )` `Mantralaya, Mumbai 400 032 )`
`2. The Deputy Director of Town )` `Planning BMC Headquarters )` `C.S.T., Greater Bombay )` `Mumbai 400 001 )`
`3. The Commissioner, )`
`Brihan Mumbai Municipal )` `Corporation, Mumbai 400 001 )`
`4. The Assistant Municipal )`
`Commissioner, H/West Ward, )` `Brihan Mumbai Municipal )`
`Corporation, Bandra (East) )` `Mumbai 400 050 )`
`5. The Executive Engineer )`
`Building Proposal (W.S.) )`
`H.& K/E, Ward, B.M.C., )`
`Bandra (West), Mumbai 50 )`
`6. The Director, Neelkanth )`
`Group, Fine House, 5th road )`
`Anandaji Lane, M.G.Road, )`
`Ghatkoper (East),Mumbai -77 )`

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 7. The Director, Navaketan )
 Premises Private Ltd., 9/10 )
 Bhaveshwar Complex, Kirol )
 Road, Vidyavihar, )
 Mumbai 400 086 ) ..Respondents

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 Mr.R.B.Sabban for petitioners

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 Mr.K.R.Belosey, Govt. Pleader for respondent no.1
 Mr.K.K.Singhavi, Sr.Counsel with Ms.Shobha Ajitkumar for
 respondent nos.2 to 5

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 Mr.J.J.Bhat, Sr.Counasel with Mr.Fedrun D’Vitre with
 Ms.Anjali Chandurkar i/b M/s Purnanand and Co. for
 respondent no.7.

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 Judgment Reserved on: 27.6.2007
 Judgment delivered on: 19.7.2007

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CORAM: SWATANTER KUMAR, C.J.
ANDS.C.DHARMADHIKARIJ.
19th July, 2007

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ORAL JUDGMENT:(Per S.C.Dharmadhikari J.)

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 1. Rule. Returnable forthwith by consent of parties.
 Respondents waive service.

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 2. By this petition under Article 226 of the Constitution
 of India, the petitioners who are residing at Santacruz,
 Mumbai and the office bearers of Janjagruti Seva Sangh, a
 public trust undertaking development work at Local Level
 are praying for the following reliefs:

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 "a) This Hon’ble Court may be pleased to issue the
 Writ of Mandamus or any other appropriate writ,

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 order or direction directing the respondent
 authorities to demolish forthwith the illegal and
 unauthorised construction done on the land
 admeasuring 3446 sq.meters reserved for the Parking
 Lot and the land admeasuring 1723 sq.meters
 reserved for the Housing the dishoused, under the
 Reservation No.83, Site/Sheet No.238 situated at
 CTS No.118 to 126, Final Plot Nos.82, TPS-1,
 Santacruz (West), Mumbai;

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 b) this Hon’ble Court may be pleased to issue the
 writ of mandamus or any other appropriate writ,
 order or direction directing the respondent
 authorities to demolish forthwith the illegal and
 unauthorised commercial construction done on the
 land admeasuring 1723 sq.mtrs. reserved in the
 Residential Zone under the Reservation No.63,
 Site/Sheet No.238 situated at CTS No.118 to 126,
 Final Plot Nos.82, TPS-1, Santacruz (West),
 Mumbai;"

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 3. By relying upon the notification dated 21st May, 1992
 published in Maharashtra Government Gazette sanctioning
 the Development Plan for Mumbai and more particularly of
 "H/West ward", it is contended that Reservation no.63,
 site/sheet no.238 indicated therein, comprising the area

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 of 7956 sq.meters and identified as CTS No.1181 to 1186,
 Final Plot No.82, TPS I, Santacruz (West), Mumbai is
 Notified by the State for Public Purpose specified
 therein. If the notification is perused in this behalf,
 then, according to the petitioners, it would be clear that
 the area of 1119 sq.meters from southern part of the
 reservation "Municipal Retail Market and Municipal
 Housing" is changed to "retail market" and is numbered as
 site No.238. The area of 3446 sq.meters along with
 P.M.Road is reserved for parking lot, the area of 1723
 sq.meters towards West is reserved for Housing the
 dishoused with an access from P.M.Road and remaining 1723

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 sq.meters is deleted and included in residential zone as
 shown on the plan.

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 4. In other words, the proposed reservation of "Municipal
 Retail Market and Municipal Housing" stands modified and
 the Government sanction under sec.31(1) of the Maharashtra
 Regional and Town Planning Act, 1966 is accorded in the
 above terms. After the sanction, the extent of
 Reservations are as indicated above. The petitioners have
 pointed out the manner in which the reservation was
 proposed by the Municipal Corporation, which is the
 Planning Authority and finally sanctioned by the State
 Government.

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 5. Their grievance is that the builders/developers who
 are respondent nos. 6 and 7 to this petition have started
 construction on the Final Plot. The same is illegal and
 unauthorised in as much as the land reserved for parking
 lot and housing the dishoused has also been included in
 the development/construction. Once, this portion is also
 included in the construction activity, then, the
 construction is patently unauthorised and illegal and
 liable to be demolished.

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 6. The petitioners submit that by their Advocate’s letter
 dated 17th February, 2006 they called upon respondent nos.
 1 to 5 to take appropriate action including demolition of
 the unauthorised and illegal construction at site. It is
 their case that all the relevant details pertaining to the
 construction activities were furnished. There was a
 reminder addressed on 28th March, 2006 but the Corporation
 and the State have not taken any action. It is in these
 circumstances that the petitioners have approached this
 Court.

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 7. When this matter was placed before us on the earlier
 occasion, we had passed an order directing the Corporation
 to file an affidavit stating as to what area falls within
 the reservation of housing for dishoused and as to how
 this reservation is implemented at site. In other words,

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 we had called upon the Corporation to satisfy us as to how
 handing over of 3 flats by builders and developers to the
 Corporation would satisfy the Reservation for this section
 of the society.

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 8. The Corporation was also directed to clarify with
 regard to the persons who are entitled to allotment of
 tenement/flat under the category of "dishoused persons".

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 9. The above direction was issued by us after hearing
 Mr.Sabban for the petitioners, Mr.K.K.Singhavi, learned
 Sr.Counsel appearing for respondent Municipal Corporation
 and Mr.J.J.Bhat, learned Sr.Counsel appearing for the
 builders/developers.

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 10. From the affidavit which was filed before the above
 directions were issued, it is clear that the
 builders/developers have provided a parking lot in as much
 as a multistoreyed parking lot has already been made at
 site. The area reserved for parking lot is 3446
 sq.meters. That parking lot was constructed and

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 architect/licenced surveyor of respondent no.7 by letter
 dated 15th January, 2007 offered possession of this
 parking lot to the Corporation and further steps are
 accordingly being undertaken is not disputed. As far as
 the reservation for housing the dishoused is concerned,

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 the developers have stated on oath that they would at

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 site, provide 1723 sq.meters of housing area which is
 equivalent to 3 flats and those will be handed over to the
 Corporation. In this behalf an affidavit which is filed
 on 14th February, 2007 on behalf of the Corporation states
 thus:

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 "5(d) As regards reservation of housing for
 dishoused, the said reservation is buildable and
 normally as provided in Table 4 of D.C.R.9, in such
 reservation 10% of the area is being built up and
 handed over to the Corporation. Under the present
 scheme, the area of the said reservation is 1723
 sq.meters. I submit that as per D.C.Regulations,
 1991, minimum tenement density shall be 325 units
 per net hector and that not less than 50% shall
 carpet area of 180 sq.ft. each. As per prevailing
 policy of the Corporation, the carpet area of such
 tenements shall be 225 sq.ft. each. I, therefore,
 submit that out of the aforesaid area of
 reservation, set back area to the extent of the
 said reserved area and R.G.area to that effect is
 deducted. Thereafter, as per the tenement density,
 50% tenements developed on the said plot is
 required to have area of 225 sq.ft. Accordingly,
 the proportionate tenements to be handed over are

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 worked out to 3o tenements of 225 sq.ft. each. I
 submit that the developer has already handed over 3
 flats to M.C.G.M. on 17.2.2005.

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 6.(i) I state that on the said plot of land 2
 buildings are approved by M.C.G.M. Building No.1
 comprises of ground plus 1st to 5th and 6th (pt)
 upper floor for residential purpose. The said
 building is completed and Occupation Certificate is
 granted on 28.6.2005. In the said building, the 3
 tenements as stated above are handed over to the
 Corporation.

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 (ii) Building no.2 was lastly approved for two
 level basement. Second level basement for parking
 lot to be handed over to M.C.G.M. free of cost and
 first level basement for shopping and related
 services. Above the said basement, said building
 includes ground to 2nd floor for shopping plus 3rd
 floor for restaurant and food stalls with
 entertainment area. 4th floor again is allotted
 for parking for the said building and 5th floor is
 the banquet halls. The said commercial user
 approved in respect of building no.2 is as per
 D.C.Regulations 52(6). I further submit that the
 necessary permission to the said building are

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 granted in accordance with D.C.Regulations and
 appropriate sanction of the Competent Authority.
 The said building no.2 is also granted part O.C.
 on 12.1.2007 for parking lot only to be handed over
 to the Corporation and the procedure is under
 process. After the said parking lot is handed to
 the Corporation free of cost as per the I.O.D.
 conditions, further O.C. shall be granted in
 accordance with compliance of the conditions."

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 11. However, the petitioners filed a rejoinder and
 disputed the contents of this affidavit. Their contention
 was that parking lot was a private facility whereas the
 parking facilities envisaged by the Reservation is a
 public parking. It was also contended that out of 560
 units which can be accommodated in 1723 sq.meters of plot,
 50% i.e. 228 units of minimum 225 sq.ft. alone would
 meet the reservation of housing for the dishoused.

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 12. It is only with regard to these two issues that the
 arguments were canvassed and that is how the direction of
 5th April, 2007 was issued by us. Accordingly, further
 affidavits have been filed by the Corporation. The
 Corporation has clarified that its Estate Department took
 possession of 3 tenements for Project Affected Persons
 (PAPs for short) in the building on 17th February, 2005.

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 The physical demarcation of the flats is also set out in
 the affidavit of the Asstt.Commissioner. Allotment of 3
 tenements to PAPs has been made and details of the same
 are also set out. The names of the allottees are
 mentioned in this affidavit.

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 13. In the affidavit of the Chief Engineer (D.P.), it is
 pointed out that the reservation of the Housing for the
 Dishoused (H.D.) is dealt with by D.C.Regulations and more
 particularly D.C.Regulation No.9 which has been
 reproduced. Thereafter our attention is invited to the
 Circulars/Orders of the Government of Maharashtra on the
 subject and it is contended that in full compliance with
 these circulars and notifications, the computation of
 tenements reserved for dishoused has been made. The
 calculations are set out in para 8 of the affidavit and
 thus it is demonstrated that 3 tenements of 20.90
 sq.meters satisfy the requirement. The relevant circulars
 have also been annexed to this affidavit. This affidavit
 has been filed on 14th June, 2007. Mr.Sabban appearing
 for the petitioners took time to go through the Circulars
 and file rejoinder to these Affidavits.

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 14. Despite taking time, Mr.Sabban could not produce
 anything to dispute the contents of the aforesaid
 affidavits. However, he raised another contention for our

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 consideration, namely, that, the land/plot being reserved
 for the aforesaid purposes, no development at all could
 have been permitted thereon. In his submission,
 D.C.Regulations are of 1991 whereas notification and
 sanction is of the year 1992. In such circumstances,
 D.C.Regulations would have no applicability to the case at
 hand.

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 15. It is not possible to accept this contention. The
 same overlooks the Maharashtra Regional and Town Planning
 Act, 1966 so also the Development Control Regulations.
 Section 22 of the M.R.and T.P.Act, 1966 sets out the
 contents of a Development Plan. Sub-clause (n) therein
 reads thus:

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 16. From perusal of the same, it is abundantly clear that
 D.C.Regulations are traceable to the Development Plan
 itself. That is the undisputed position. Therefore, once
 the broad outline is provided in the Development Plan,
 then individual development activity is regulated and
 controlled by the regulations which are framed in
 pursuance of the powers conferred by section 22(m) and
 other related provisions. Therefore, leave alone any
 conflict between the two, there is a perfect harmony in as
 much as the Development Plan, Designations, proposals and
 Reservations are always considered and taken into account

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 while sanctioning and granting individual development
 permission. Once this is an admitted legal position and
 Development Control Regulations squarely permitting
 Development in cases of the present nature after making
 provision for implementation for reservations, then, in
 our view, there is no substance in the contention of
 Mr.Sabban.

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 17. From a perusal of the material placed on record, we
 are satisfied that both parking as also the housing for
 dishoused reservations are provided at site. The public
 purpose is thus achieved. The parking lot is handed over
 to the Corporation for public use. Thus, there is no
 basis for the apprehensi on that it will be used only by
 the occupants of the building. The development and
 construction on the subject plot is neither illegal nor
 unauthorised as alleged. The Developers and builders have
 in consonance with the reservation made arrangement and
 provided for parking facilities so also the tenements for
 housing the dishoused. It is undisputed that they are
 provided at the same site/plot. Once the reservations are
 taken care of and in any event they being on a part of the
 property earmarked for the same then, it is not possible
 to accede to the submission that the construction activity
 itself was impermissible. It is well settled that by
 reservation and designation on a private property the

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 ownership and title thereof does not vest in the local
 body/planning authority. (See AIR 1995 S.C.430 Pt.Chet
 Ram Vashist (dead) by L,.Rs. Vs. Municipal Corporation
 of Delhi). The developer can build upon and develop the
 property bearing in mind the proposal and reservation and
 individual plan for development can be sanctioned
 accordingly. In the present case, while building a
 multistoreyed structure on the plot, the developer has
 provided for both reservations. There is no material
 controverting the factual aspect of compliance with the
 relevant provisions of law.

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 18. In these circumstances, we find no substance in the
 petition. As far as the complaint of the petitioner that
 a temple at site has been demolished and removed we find
 no material on record which would indicate that the owner
 had transferred the property to respondent nos. 6 and 7
 with clear intent of a Jain temple being provided at site.
 In this behalf para 14 of the affidavit of the developer
 is eloquent enough. That apart, neither is any material
 provided nor the petitioner at any time made any serious
 grievance about the temple not being provided for. The
 grievances projected were restricted regard to the above
 mentioned reservations.

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 19. These reservations have been provided at site and
 fully implemented in accordance with the rules and
 regulations. The petition must, therefore, fail. Rule
 is, therefore, discharged with no order as to costs.

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(CHIEF JUSTICE)

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(S.C.DHARMADHIKARI J.)

Meenal Mohan Lokegaonkar. Secretary Janjagruti Seva Sangh (Regd.) Mumbai v. the State of Maharashtra and 6 Ors.

Case brief

What is this about?

What did the court decide?

Meenal Mohan Lokegaonkar. Secretary Janjagruti Seva Sangh (Regd.) Mumbai v. the State of Maharashtra and 6 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

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