Allowed

Sea Green Co-Operative Housing Society Ltd. v. Union of India and Ors.

Bombay HC3 Sept 2014WP/1245/2013

Case brief

AI extract

What is this about?

This court allowed a writ petition challenging a stop work notice issued by the Maharashtra Coastal Zone Management Authority (MCZMA). The court held that the redevelopment project, originating from a dilapidated building, fell under the exemption in the CRZ Notification 2011 applicable to such projects. Consequently, the petitioners were entitled to exclude staircase and lift areas from Floor Spa

What did the court decide?

Impugned stop work notice quashed; MCZMA directed to grant recommendation/clearance within two months; Municipal Corporation to issue occupation certificate post-clearance.

Sea Green Co-Operative Housing Society Ltd. Vs Union of… — Landlord and Tenant | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO.1245 OF 2013

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Sea Green Co-operative Housing Society Ltd., Plot No.7/15, Scheme No.58, C.S.No.15/806 of worli Division at Khan Abdul Gaffar Khan Road, Mumbai-400 025 Petitioner

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versus

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Union of India through the Principal Secretary, Department of Environment, Forests and Wildlife, through Central Government Pleader, Churchgate, Mumbai.

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State of Maharashtra through the Principal Secretary, Urban Development Department, Mantralaya, Mumbai.

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Maharashtra Costal Zone Management Authority, New Administrative Building, 15^th Floor, Mantralaya, Mumbai-32.

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Municipal Corporation of Greater Mumbai

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Mr.Tulsi Bhimjyani

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Mrs.Leena Tulsi Bhimjyani

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Mr.Anshul Tulsi Bhimjyani

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Mr.Devang Tulsi Bhimjyani, 507, Dalamal House, Nariman Point, Mumbai-21. Respondents

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Mr.Veerendra Tulzapurkar, Sr.Advocate with Mr.Nikhil Sakhardande, Mr.Prakash Pandit, Ms.Prachi Pandit i/by N.R.Gandhi for Petitioner.

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Mr.Parag Vyas for Respondent no.1 Union Government.

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Mr.S.U.Kamdar, Sr.Advocate for MCGB.

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Mr.N.P.Pandit, AGP for State.

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Mr.Pravin Samdani, Sr.Advocate with Mr.Snehal Shah, Mrs.Amita Jasani, Mr.Ritesh Jain, Ms.Megha Martins i/by M/s.Purnanand & Co. for Respondent nos.5 to 8.

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CORAM : MOHIT S. SHAH, C.J. AND M.S.SONAK, J.

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DATE : 3 September 2014

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ORAL JUDGMENT (Per Chief Justice)

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Rule was issued in this matter on 2 April 2014.

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The Petitioner co-operative housing society challenges the stop work notice dated 1 February 2012 issued by Respondent no.3 Maharashtra Coastal Zone Management Authority (MCZMA'). The petition raises question about applicability of Coastal Regulation Zone (CRZ') Notification dated 6 January 2011 read with Development Control Regulations for Greater Mumbai, 1991 (`DC Regulations, 1991').

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The facts leading to filing of this writ petition, briefly stated, are as under.

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(a) The Petitioner is the lessee of land admeasuring approximately 1,672 sq. mtrs. (equivalent to 2,000 sq.yards) in Worli, Mumbai. The Petitioner co-op. society with 18 members constructed a building in the year 1959-60. The land in question falls under Coastal Regulatory Zone-II within 500 meters from high tide line on landward side.

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(b) On 13 November 2000, the Petitioner submitted plans for redevelopment of the building to Respondent no.4 Municipal Corporation of Greater Mumbai (Municipal Corporation') for construction of area of 2,224.09 sq. mtrs. and free of Floor Space Index (FSI') area of 234.37 sq. mtrs.. The plans were approved and sanctioned in the form of Intimation of Disapproval (`IOD') dated 1 October 2001 issued by the Municipal Corporation for the building comprising lower stilt + podium + first to sixth floors. Thereafter, on 30 October 2004, the Petitioner society through its Architects submitted amended plans for construction of building comprising of lower stilt + upper stilt + first floor stilt + first to thirteen floors with construction area of 2,205.87 sq. mtrs. at 1.33 FSI and free FSI area of 882.91 sq. mtrs. On 14 December 2005, a Memorandum of Understanding was entered into between the Petitioner society and Respondent nos.5 to 8. Respondent nos.5 to 8, who are developers, agreed to construct eighteen flats admeasuring 16,993 sq. ft. carpet area at their own costs plus four additional flats for themselves.

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(c) On 1 August 2006, the State of Maharashtra (Urban Development Department) informed the Municipal Corporation that plans were already sanctioned in 2001 and IOD was issued pursuant to payment of premium. Therefore, the areas of staircase, lift and lift lobby were to be permitted free of FSI in view of past commitment. The Petitioner society through eighteen members entered into an agreement with Respondent nos.5 to 8 on 23 September 2006 to redevelop the building of the Petitioner society. On 28 November 2006, the Municipal Corporation approved the revised plans by allowing areas of staircase, lift and lift lobby free of FSI by charging premium. Upon the Petitioner society making payment of premium of Rs.1,08,03,290/-, the Municipal Corporation issued commencement certificate dated 5 January 2007. The Petitioner society then demolished the building in January 2007 and shifted its 18 members to temporary accommodation elsewhere.

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(d) The Petitioner society thereafter also submitted further amended plans in 2009 and 2010. The Municipal Corporation approved the amended plans on 28 April 2009 without increasing the height/floors of the proposed building. The Petitioner society submitted amended plans for building comprising of lower stilt + upper stilt + first floor stilt + first to fourteen floors with construction area of 2,224.09 sq. mtrs. The Municipal Corporation sanctioned the amended plans on 9 August 2010. Areas of staircase, lift and lift lobby, which were already approved free of FSI in the year 2006 plans, remained the same. It appears that the Petitioner sought for approval of some additional staircase and lift area which was counted

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for FSI in the latest amended plans. On 24 September 2010, the Municipal Corporation granted full commencement certificate.

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(e) MCZMA issued the impugned stop work notice on 1 February 2011. According to the Petitioner, by that time, more than 98% construction work of the new building was already complete. The developers replied to the said notice on 5 March 2011 informing MCZMA that the construction had commenced after following the procedure under then prevailing law. The Petitioner society also submitted a representation dated 4 February 2012 to MCZMA requesting to withdraw the stop work notice. The present petition came to be filed by the Petitioner society in May-2013.

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MCZMA issued the impugned stop work notice on the following grounds :

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(i) The clearance from MCZMA was not obtained by the Petitioner society before the plans were sanctioned by Municipal Corporation; and

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(ii) The Municipal Corporation acted contrary to law in sanctioning the building plans wherein staircase, lift and lift lobby areas were counted free of FSI on payment of premium.

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MCZMA contends that the staircase, lift and lift lobby areas cannot be excluded from computation of FSI and, therefore, the construction put up by the Petitioner society is contrary to law.

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Learned counsel for the Petitioner society and learned counsel for developers have contended that no clearance from MCZMA is required for the following reasons :

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(a) The notification dated 6 January 2011 requires clearance from the Central Government under Environmental Impact Assessment (`EIA') Notification of 2006 where the construction exceeds 20,000 sq. mtrs. In the present case, the total built-up area constructed is less than 2,000 sq. mtrs. after exclusion of staircase, lift and lift lobby areas. But even with inclusion of these areas, constructed building is less than 3,000 sq. mtrs.;

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(b) The IOD was issued by the Municipal Corporation on 1 October 2001. Though MCZMA was established at that time, it was under Notification dated 22 April 2003 that the Government of India notified that activities involving investment less than Rs.5 crores shall be regulated by MCZMA and, therefore, the proposals with investment up to Rs.5 crores in CRZ areas were referred to MCZMA for clearance. Thereafter, by letter dated 23 July 2003, the Government of Maharashtra in Urban Development Department informed the Municipal Corporation that amendment proposed in Notification dated 22 April 2003 was applicable to new proposals submitted after 22 April 2003. Since Petitioner had submitted the proposal in 2001, there was no question of obtaining any clearance from MCZMA.

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As regards the question whether staircase, lift and lift lobby areas are required to be included within FSI calculation or are to be excluded, the learned counsel for the Petitioner society and developers urged that as per CRZ Notification dated 6 January 2011, the DC Regulations, 1991 are applicable. As per DCR 35(ii)(2)(c) and 35(iv), the staircase, lift and lift lobby areas are to be excluded while computing FSI and, therefore, the said areas are not required to be included in the FSI calculations. It is submitted that CRZ Notification of 6 January 2011 applies to all on going projects on the date of coming into force of the said CRZ Notification. Reliance is placed on the decision of this Court in Federation of Churchgate Residents and others Vs. The Municipal Corporation of Greater Mumbai and others¹ in support of the contention that in all cases where occupation certificate was not issued before 6 January 2011, it will be treated as an on going project covered by paragraph 8(V)(1) (iii)(c) of CRZ Notification dated 6 January 2011 (Redevelopment of Dilapidated, Cessed and Unsafe buildings). It is submitted that as per the said paragraph, redevelopment or reconstruction projects on the date of issue of Notification dated 6 January 2011 shall be allowed to be taken up by involving the owners of these buildings either alone or with private developers in accordance with the prevailing Regulation (i.e. Regulations prevailing on 6 January 2011). The Floor Space Index for such redevelopment scheme shall be in accordance with the Town and Country Planning Regulations prevailing on 6 January 2011, which again would mean the Development Control Regulations, 1991. Since DCR 35(ii)(2)(c) and 35(iv) of the Development Control Regulations, 1991 specifically provides that staircase, lift and lift 1 PIL No.54 of 2012 (OOCJ)

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lobby areas are to be excluded in computation of FSI, the Petitioner's case is clearly covered by the aforesaid Regulations. It is, therefore, submitted that in view of the above calculations in accordance with DC Regulations, 1991, the construction put up by the Petitioner is in accordance with law and MCZMA is not justified in issuing the impugned stop work notice.

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On the other hand, learned counsel for MCZMA has opposed the petition and submitted that :

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(i) Clearance of MCZMA is required in all cases where proposed construction is in CRZ area and the construction is up to 20,000 sq. mtrs.;

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(ii) As regards applicability of paragraph 8(V)(1)(iii)(c) of CRZ Notification dated 6 January 2011, it is submitted that the said paragraph would apply only to those redevelopment or reconstruction projects which were identified as on the date of issuance of CRZ Notification dated 6 January 2011. The said paragraph would apply only to old, dilapidated, cessed and unsafe buildings in CRZ areas. There is nothing on record to show that the project of Petitioner society was ever identified by any authority on the date of issue of Notification dated 6 January 2011.

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Paragraph 8(V)(1) of CRZ Notification dated 6 January 2011 reads as under :

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“1. CRZ areas falling within municipal limits of the Greater Mumbai.

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(i) Development activities in the CRZ area of the Greater Mumbai because of the environmental issues, relating to degradationof mangroves, pollution of creeks and coastal waters, due to discharge of untreated effluents and disposal of solid waste, the need to provide decent housing to the poor sectionof society and lack of suitable alternatives in the inter connected islands of Greater Mumbai shalll be regulated as follows, namely :-

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(A) Construction of roads – In CRZ-I areas indicated at sub-paragraph (I) of paragraph 7 of the notification the following activities only can be taken up :-

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(a) Construction of roads, approach roads and missing link roads approved in the Development Plan of Greater Mumbai on stilts ensuring that the free flow or tidal water is not affected, without any benefit of CRZ-II accruing on the landward side of such constructed roads or approach roads subject to the following conditions :

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(i) All mangrove areas shall be mapped and notified as protected forest and necessary protection and conservation measures for the identified mangrove areas shall be initiated.

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(ii) Five times the number of mangroves destroyed/cut during the construction process shall be replanted.

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B. Solid waste disposal sites shall be identified outside the CRZ area and thereafter within two years the existing conventional solid waste sites shall be relocated outside the CRZ area.”

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Learned counsel for MCZMA submits that paragraph 8(V)(1)(iii)(c) of CRZ Notification dated 6 January 2011 requires such projects or buildings to be identified first and no authority has ever identified the structure of Petitioner society as dilapidated building.

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Having regard to the material on record, there cannot be any dispute that the building of the Petitioner society before it was demolished in January-2007 was an old and dilapidated building. Since it was constructed in the year 1959, it was a cessed building in `C' category, as defined in Section 84 of MHADA Act. The certificate issued on 6 June 1995 by Architect Mr.Anand Palaye clearly indicated that being situated at sea front at Worli, it was extremely corrosive and the construction being old, the repairs to the building would not extend the life of all the existing structure of building beyond 5 to 7 years at the most, that too at an extraordinary cost. The structural status of the building certified by the Architect stated that the building cannot be permanently repaired as most of the structural components had disintegrated beyond salvage. Continuous falling of debris from chajjas etc was a danger to persons passing by. In event of an earthquake, the structure may collapse. Plinth in general had developed cracks resulting in damage to flooring tiles. Brick walls were distressed on south and west side of building. As far as condition of floors was concerned, it was stated that at many places the floor slabs had sagged near the toilet ducts. This resulted in misalignments of many windows and doors. The joints of the floor

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slab and the RCC staircase inside the building had developed cracks due to settlement of the floor slab. The RCC roof slab had corroded at many places resulting in leakage.

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Apart from the said certificate of the Architect, the report forwarded by MCZMA along with their letter dated 29 July 2013 to MoEF clearly stated as under :

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“ REPORT

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BACKGROUND OF THE MATTER :

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The matter pertains to reconstruction of existing residential building at Worli – M/s.Sea Green CHS, by demolishing existing dilapidated structure on plot under reference. The plot falls in CRZ-II as per CZMP dated 19.1.2000 approved by MoEF, New Delhi.”

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(emphasis supplied)

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The aforesaid clear statement made in the report of MCZMA itself indicating that before demolition, the building of the Petitioner society was a dilapidated structure, is more than sufficient to negative the contention of learned counsel for MCZMA that redevelopment or reconstruction project was not identified on the date of issue of Notification dated 6 January 2011. Once it is held that the building of the Petitioner society prior to its demolition in January-2007 was an old and dilapidated building and was also a cessed building falling in `C' category as defined by Section 84 of MHADA Act, paragraph 8(V)(1)(iii)(c) of the CRZ Notification dated 6 January 2011 would certainly apply. The rationale of said paragraph is also clearly

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mentioned therein that due to their age, these structures are extremely vulnerable and disaster prone and therefore, there is urgent need for the redevelopment or reconstruction of such buildings.

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In our view, when MCZMA in its report dated 29 July 2013 itself indicated that building in question prior to its demolition was a dilapidated structure, no further identification was required at all. Hence, redevelopment or reconstruction project of the building of the Petitioner society is required to be allowed to be taken up “in accordance with the prevailing Regulations” i.e. Development Control Regulations for Greater Mumbai, 1991 prevailing on 6 January 2011.

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The subsequent sub clause (2)(ii) of clause 8(V)(1)(iii) (c), as amended by Notification dated 29 March 2011, also provides that FSI for such redevelopment scheme shall be in accordance with the Town and Country Planning Regulations prevailing as on 6 January 2011. Hence, Regulations applicable to the Petitioner society's redevelopment/reconstruction project would be Development Control Regulations for Greater Mumbai, 1991, which were prevailing as on 6 January 2011.

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Regulation 35(ii)(2)(c) and 35(iv) of DC Regulations, 1991 provide as under :

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“35. Floor Space Index Computation -

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(i) … … …

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(2) The following shall not be counted for FSI-

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“35(iv) Areas covered by staircases/lift wells, including lobbies as specified, excluding those covered under D.C.Regulation No.35(2)(iii) with special written permission of the Commissioner subject to payment of premium.

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Provided that in the wards of the Island City such exclusion from FSI computation will be available in respect of buildings to be constructed or reconstructed only, the same being not available for existing buildings or proposals decided by the Corporation prior to the coming into force of these Regulations.

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Provided further that where the permissible FSI has not been exhausted in the case of existing buildings and cases decided by the Corporation prior to coming into force of these Regulations, the exclusion from FSI computation as in these Regulations will be available for construction of balance potential.”

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There is no dispute about the fact that the building of the Petitioner society being reconstructed is not in commercial zone and that FSI is being computed for the building under reconstruction and not in respect of existing building. Similarly, the Municipal

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Corporation has considered the proposal of the Petitioner society after coming into force of the DC Regulations, 1991 and, therefore, the proviso does not take away the rights of Petitioner society to get exclusion of areas covered by staircase, lift and lift lobbies. Therefore, we do not find any substance in the submission of learned counsel for MCZMA that Petitioner society is not entitled to exclusion of staircase, lift and lift lobby areas while computing the FSI calculations.

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In case of Federation of Churchgate Residents (supra), this Court has held as under :

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“8. The Petitioners have also challenged the applicability of CRZ Notification dated 6 January 2011 to the facts of Vasant Sagar's case. Therefore, it is the Petitioners' case that the benefit of extra FSI etc available under the 2011 Notification is not available. The Petitioners contended that CRZ Notification 2011 itself provides that it would apply to old and dilapidated projects which can be identified on the date of the issue of the notification. It is the Petitioners' contention that the earlier building which was in a dilapidated condition was not in existence when 2011 Notification was issued for the reason it was demolished earlier and reconstruction of building on the said property was in progress. Therefore, there was no dilapidated building which could be identified on the date of Notification dated 6 January 2011. As against the above, the Respondents and the Advocate General have submitted that the CRZ Notification of 2011 would apply as the project of reconstruction on the said property is still in progress. Therefore, it is possible to identify the project. … … …

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We find that till the date of the issue of notification on 6 January 2011, no occupation certificate in respect of the building which was being reconstructed, was issued. Therefore, the reconstruction of the building in place of dilapidated building was still an on going project on the date of notification. The benefit under the RZ Notification of 2011 is given to an on going project having its origin in a dilapidated building. … … … ...”

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In view of the ratio laid down in the above decision, if occupation certificate is not issued for any building under reconstruction/redevelopment on the date of coming into force of the CRZ Notification dated 6 January 2011, it is an on going project which would be covered by paragraph 8(V)(1)(iii)(c) of the CRZ Notification dated 6 January 2011. Further, in the present case, the material on record indicates that the ongoing project had its origin in a dilapidated building. Therefore, applying the ratio as aforesaid, the benefit of CRZ Notification 2011 shall have to be extended to the building in question.

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In the facts of the present case, there is no dispute about the fact that the construction had commenced in 2007 and the construction was not completed on 6 January 2011 when CRZ Notification came into force. Admittedly, occupation certificate has not been issued even now. In fact, by our interim order dated 2 April 2014, we had while granting interim relief permitting the Petitioner society to complete the construction so as to avoid any damage to the building which was already completed to the extent of more than 95%,we had directed the Municipal Corporation not to issue any

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occupation certificate till final disposal of the writ petition. In other words, we are clearly of the view that the Petitioner society is entitled to get the benefit of paragraph 8(V)(1)(iii)(c) of CRZ Notification dated 6 January 2011 and, therefore, also the Petitioner society is entitled to the benefit of DC Regulations for Greater Mumbai of 1991 and particularly Regulation 35(ii)(c) and Regulation 35(iv) thereof. Admittedly, the Petitioner had paid the premium for getting the above benefit in the year 2006-07 and the Municipal Corporation has no grievance on this score.

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It is the case of Municipal Corporation that the Petitioner society is entitled to get the benefit of staircase, lift and lift lobby areas free of FSI on payment of premium. We may also note at this stage that Municipal Corporation had taken certain decisions at the meetings held in the years 1990 where under the Municipal Corporation was charging premium for exclusion of staircase, lift and lift lobby areas from FSI. The relevant portions of decisions taken in 1990 and 1991 meetings read as under :

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“BrihanMumbai Mahanagarpalika – Meeting of 9.4.1990

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Sr No.	Issue Discussed	Decision taken
1	Whether floor landing to staircase be counted in granting benefit or not. If yes, then what extent staircase well.	At the floor landing, the benefit to the extent of the staircase width including staircase well and the lobby in case of single flight staircase equivalent to the width of the staircase, should be given by the premium asperpolicy.”

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“BrihanMumbai Mahanagarpalika – Meeting of 14.11.1990

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Sr No.	Submission	Decision
1	Passage in front of the lift to be deducted from built-up area similar to staircase.	Already decision taken to allow the deduction of lift passage equivalent to width of lift shaft x width of staircase flight. Proposal accepted.
3	In case of part floors proposed due to staircase and lift FSI whether staircase/ lift area to be calculated on prorate basis.	Full deduction to be allowed with premium for full stair/lift area.
4	Staircase in case of full stilt proposed on Gr. Floor whether to count inFSI and deduct for FSI purpose.	Not to be counted to built-up area and hence no deduction.”

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It is necessary to note that these decisions were taken after meetings were held with the Association of Architects where issues were discussed threadbare. Moreover, it also appears that under the draft DC Regulations of 1989 also, the areas of staircase, lift and lift lobby were excluded from FSI calculation and premium was being charged on that basis. The Petitioner society had accordingly paid the premium for getting the said benefit in the year 2006-07 and a premium of Rs.1,08,03,290/- was paid.

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As regards the actual areas of staircase, lift and lift lobby, the report dated 26 March 2014 of the Executive Engineer (Building Proposals), City-1, states as under :

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“10. The total area of staircase, lift and lift lobby as per the revised plan approved on 9.8.2010 was 896.68 sq.mtrs the total area of staircase, lift and lift lobby as per the plans sanctioned on 28.11.2006, which was permitted free of FSI by charging premium was 882.91 sq.mtrs. The excess staircase, lift and lift lobby area of 13.77 sq.mtrs (i.e. area beyond 2006 sanctioned plan) requested in the amended plans submitted on 9.8.2010, was counted FSI. The total FSI consumed in the building + excess staircase FSI counted in FSI works out to 2224 sq.mtrs within permissible FSI of 1.33.

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The area of staircase, lift and lift lobby was granted free of FSI by charging premium as per the direction of U.D.Department of Government of Maharashtra dated 1.8.2006 and similarly the concessions were granted to other developments in C.R.Z. areas also.”

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Learned counsel for MCZMA, however, submitted that in case of Suresh Estates Pvt. Ltd. and others Vs. Municipal Corporation of Greater Mumbai and others² , the Apex Court has held that existing Regulations on the date of coming into force of the CRZ Notification dated 19 February 1991 were DC Regulations, 1967. Learned Counsel then submitted that under DC Regulations, 1967, the areas of staircase, lift and lift lobby were not required to be excluded from the calculations of FSI but only the room above the staircase and room above lift were excluded from FSI calculation. Strong reliance is placed on the 2 2008(2)-ALL M.R.-768

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observations made in the said decision to the effect that CRZ Notification dated 19 February 1991 froze FSI as per DC Regulations of 1967.

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In our view, it would have been necessary to consider the above submission in depth if the CRZ Notification of 6 January 2011 had not came in the picture. Once CRZ Notification of 6 January 2011 has come into force, it is not necessary to examine the above controversy. But in any view of the matter, having regard to the fact that State Government had always proceeded on the basis that DC Regulations of 1991 were applicable and not DC Regulations of 1967 (which contention the Apex Court did not accept in Nov.2007), it cannot be held that the action of the Petitioner society in submitting the plans to Municipal Corporation and the action of Municipal Corporation in sanctioning those building plans wherein staircase, lift and lift lobby areas were excluded from FSI calculations, was mala fide.

¶108

In view of the above discussion, we are clearly of the view that Municipal Corporation as well as the Petitioner society and the developers are justified in submitting that staircase, lift and lift lobby areas are required to be excluded in calculation of FSI in respect of the reconstructed building of the Petitioner society, because the old building came to be demolished in January-2007 and the redevelopment/reconstruction of project was an on going project on 6 January 2011.

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Now, coming to the first question, the learned counsel for Petitioner society would submit that the Petitioner society is not required to acquire clearance from MCZMA as on the date when the plans were sanctioned, the cost of the proposed reconstructed building was going to be less than Rs.5 crores and the IOD was granted by the Municipal Corporation in the year 2001 before the Government Notification dated 22 April 2003 was issued. It was under the said Notification dated 22 April 2003 that MCZMA required to grant clearance for projects up to Rs.5 crores.

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We are not inclined to accept above submission because though IOD was granted in the year 2001, it was for a building with stilt + six stories. It was subsequently in the year 2006 that the Petitioner society revised the building plans for constructing a building with stilts + 13 stories which subsequently came to be raised to 14 stories. Obviously by this time, the Government Notification dated 22 April 2003 had already come into force. We are further of the view that since we have held that CRZ Notification of 6 January 2011 is to be applied and particularly paragraph 8(V)(1)(iii)(c) thereof, the Petitioner society is bound to comply with paragraph 4(d) of the said Notification, which reads as under :

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“4. Regulation of permissible activities in CRZ area.The following activities shall be regulated except those prohibited in para 3 above :

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(a) … … … (b) … … …

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(d) Construction involving more than 20,000 sq. mtrs. built-up area in CRZ-II shall be considered in accordance with EIA notification, 2006 and in case of projects less than 20,000 sq. mtrs. built-up area shall be approved by the concerned State or Union Territory Planning authorities in accordance with this notification after obtaining recommendations from the concerned CZMA and prior recommendations of the concern CZMA shall be essential for considering the grant of environmental clearance under EIA notification, 2006 or grant of approval by the relevant planning authority.”

¶117

It is clear on bare perusal of the above paragraph 4(d) of CRZ Notification dated 6 January 2011 that the projects having less than 20,000 sq. mtrs. built-up area (in which category Petitioner society falls) shall be approved by the local planning authority (i.e. Municipal Corporation in this case), in accordance with CRZ Notification dated 6 January 2011 after obtaining the recommendations from MCZMA. We are not inclined to accept the submission canvassed on behalf of Petitioner society that the recommendation of MCZMA is essential only for considering the grant of environmental clearance under EIA Notification of 2006. It is certainly required for the grant of approval of the relevant planning authority also. In the facts of this case also, the Municipal Corporation is required to obtain recommendation of MCZMA for grant of approval i.e. prior to the issuance of occupation certificate.

¶118

Learned counsel for the Petitioner society would vehemently urge that eighteen occupants of the building had vacated their flats as far back as in the year 2006, the building came to be

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demolished in January-2007 and since then, they are deprived of their right to occupy their own flats for which the reconstruction commenced in 2007 and still they are not permitted to occupy the flats construction of which is already complete by now.

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The above facts would certainly persuade this Court to stipulate some time limit for MCZMA to consider the question of giving recommendation/clearance to the Municipal Corporation for Petitioner society's reconstruction/redevelopment project. But that would not justify dispensing with the mandatory requirement imposed by statutory notification to obtain recommendation from MCZMA before the planning authority-Municipal Corporation can grant approval/occupation certificate.

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In the result, the petition is allowed in the following terms :

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(i) It is held that Petitioner society is entitled to get the benefit of paragraph 8(V)(1)(iii)(c) of CRZ Notification dated 6 January 2011 and is, therefore, entitled to the benefit of Development Control Regulations for Greater Mumbai, 1991, particularly Regulation 35(ii)(2)(c) and Regulation 35(iv) thereof for the purposes of excluding staircase, lift and lift lobby areas while computing FSI;

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(ii) Upon Petitioner society making an application to MCZMA for granting the recommendation/clearance, as contemplated in paragraph 4(d) of CRZ Notification dated 6 January

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2011, MCZMA shall consider granting such recommendation/ clearance within a period of two months or at the immediate next meeting of MCZMA to be held after receiving the application, whichever is earlier;

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(iii) After MCZMA grants such recommendation/clearance to Municipal Corporation of Greater Mumbai, the Municipal Corporation shall consider Petitioner society's application for issuance of occupation certificate. It is clarified that while the Municipal Corporation shall issue the occupation certificate only after receiving the recommendation/clearance from MCZMA, the Municipal Corporation shall start processing the Petitioner's application for occupation certificate in the mean time;

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(iv) MCZMA shall consider the application in light of the observations made and findings recorded in this judgment ;

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(v) In view of above findings and directions, we quash and set aside the impugned stop work notice dated 1 February 2012 issued by MCZMA.

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(CHIEF JUSTICE)

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(M.S.SONAK, J.)

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MST

Sea Green Co-Operative Housing Society Ltd. v. Union of India and Ors.

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Sea Green Co-Operative Housing Society Ltd. v. Union of India and Ors.

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Bombay Environmental Action Group and Ors. Vs the State of Maharatshta and Ors.

Bombay Environmental Action Group Vs the State of Maharashtra and Ors.