Disposed

M/s. Om Shanti Realtors v. State of Maharashtra and 6 Ors.

Bombay HC17 Nov 2014WP/1981/2014

Case brief

AI extract

What is this about?

This writ petition concerned the denial of Heritage Transferable Development Rights (TDR) by the Municipal Corporation of Greater Mumbai. The court directed the Petitioner to submit a representation to the State Government for consideration, with specific timelines for responses from the Municipal Commissioner and a final decision by the State Government.

What did the court decide?

Petitioner directed to make representation to State Government; directions issued to State, Municipal Commissioner, and State Government to decide matter within specified timelines.

M/s. Om Shanti Realtors Vs State of… — Pension and Retirement Benefits | 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.1981 OF 2014

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M/s.Om Shanti Realtors Petitioner versus State of Maharashtra and others Respondents

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Mr.P.K.Dhakephalkar, Sr.Advocate with Mr.Ajoy Patil for Petitioner. Mr.Milind More, Additional Govt.Pleader for Respondent no.1 State. Mr.S.U.Kamdar, Sr.Advocate with Ms.T.H.Puranik for MCGM.

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CORAM : MOHIT S. SHAH, C.J. AND B.P.COLABAWALLA, J.

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DATE : 17 November 2014

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PC :

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In this petition under Article 226 of the Constitution of India, the Petitioner has, inter alia, prayed for following substantive relief :

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“(b) This Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the like nature, under Article 226 of the Constitution of India, thereby directing the Municipal Commissioner, MCGM to release TDR and sanction/grant Development Right Certificate (Heritage) with FSI credit of 7,035.82 sq.meters without including the site of plot bearing C.S.No.427 (Part) of Parel Seweri Division, Mumbai into Heritage List in accordance with the NOC granted by the Archaeological

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Survey of India for availing Heritage TDR to compensate the Petitioner for the loss of development rights.”

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The Petitioner has prayed for other ancillary reliefs which need not be quoted at this stage, in view of the order that we propose to pass.

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The Municipal Corporation of Greater Mumbai (`MCGM') owns a land bearing C.S.No.427 (Part) of Parel Seweri Division, Mumbai admeasuring 7,035.82 sq.meters. The occupants residing on some of the portion of the above property admeasuring about 4,023.26 sq.meters decided to redevelop their property under the provisions of Development Control Regulation 33(7), since the structures were constructed prior to 1942 and very much in dilapidated condition. The Petitioner was appointed as developer by the proposed co-operative housing society called Bombay-Burma Cooperative Housing Society Limited (Proposed). The other portion of the property was reserved for public purpose of municipal primary school and partly reserved for recreation ground and the said portion is shown as residential zone.

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The development of the entire land in question of about 7,035.82 sq.meters was proceeded in accordance with Development Control Regulations (DCR'), as the Petitioner was issued Letter of Intent (LOI') dated 26 February 2007 for construction of the primary school and for construction of the rehabilitation building for the tenants. The Petitioner was also required to pay the premium of

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Rs.5,17,12,929/-, which has been paid. However, the redevelopment could not be proceeded on the basis of aforesaid LOI dated 26 February 2007 because the property happens to fall within 300 meters from the protected monuments of Monolithic Base Relief Depicting Shiva' as listed in the list of buildings of National Importance/Monuments, issued by the Department of Archaeological Survey of India and no objection certificate from Archaeological Survey of India in respect of development of the said property is required to be obtained by MCGM. In view of the above location of the land in question, there is a restriction on the height of the building to be constructed on redevelopment. The Petitioner has already constructed the primary school building and rehab tenements within the restricted height limits, however, the Petitioner is not in a position to construct the free sale building which requires height beyond 15 meters. The Petitioner, therefore, requested the MCGM to grant the Petitioner heritage Transferable Development Rights (TDR') under DCR 67.

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The MCGM accordingly addressed a letter dated 24 September 2007 (Exhibit-L) requesting the State Government in the Urban Development Department to grant heritage TDR to the Petitioner for unconsumed balance FSI in view of restrictions imposed by Archaeological Survey of India on redevelopment. The State Government sent a reply dated 24 October 2007 (Exhibit-M) informing the MCGM to take necessary steps to include the property in question in DCR 67(3). It appears that the Municipal Corporation has not taken any follow up action on the ground that the property in

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question does not fall within the purview of DCR 67 which is confined to heritage buildings/structures.

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Now, difference between heritage TDR under DCR 67(6) and the normal TDR is that the normal TDR can be utilized only in a ward which is to the North of the property in question and beyond Bandra suburb, whereas the heritage TDR can also be used even in South Mumbai.

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But learned counsel for the Petitioner submits that the Municipal Corporation having issued the LOI as far back as in the year 2007 and having got constructed the primary school building and also having permitted the tenants to reconstruct their rehabilitation tenements through the Petitioner as a developer, it is not open for the Municipal Corporation to back out and to refuse to grant any permission for heritage TDR.

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Learned counsel for the Municipal Corporation submits that since the old structure, which is now demolished, itself is not a heritage structure, the Municipal Corporation cannot grant the benefit of heritage TDR unless the State Government so directs. The learned counsel also invites our attention to the affidavit-in-reply dated 5 August 2014 of the Executive Engineer, Development Plan (City) of the Municipal Corporation wherein following statement is made :

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“(s) I say that plot under reference i.e. C.S.No.427(pt) Parel Seweri Division is not included in the heritage list sanctioned by State Government under Regulation 67 of

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DC Regulations 1991 and hence the developer/petitioner is not entitled for TDR as per provisions of Regulation 67(6) of DCR 1991. I further say that the ASI has issued permission for construction of building with height more than 15 meters to another building which is also situated in the regulated area of 'Monolothic Bas Relief Depicting Siva'. The said permission is granted in respect of construction at CTS No.429 and 3/429 with the total height of 102 mtrs. of wing A (including mumty, water storage tank, parapet etc) for the sale building. Hereto annexed and marked as Exhibit-4 is the copy of said permission issued by Regional Director, ASI dated 11.3.2014. In view of the above, it is submitted that the petitioner/developer may approach ASI for necessary permission.”

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Though Archaeological Survey of India has been served with a copy of this petition as per endorsement dated 4 August 2014 on the Advocate's notice, none appears for them.

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In view of the above, we are of the view that it would be in the fitness of the things, if the Petitioner makes a representation to the State Government to resolve this impasse and to consider Petitioner's request for such TDR as may be appropriate in the facts and circumstances of the case and particularly having regard to the fact that Municipal Corporation had issued LOI to the Petitioner as far back as in the year 2007 and the Petitioner has already constructed the primary school building and the rehabilitation building as per LOI. Such a representation shall be made on or before 01 December 2014 and the Petitioner shall also endorse a copy of the representation to the Municipal Commissioner with a request to send his remarks to the State Government. The Municipal Commissioner shall send his

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remarks on the representation to the State Government on or before 15 December 2014. Upon receipt of the remarks from the Municipal Commissioner, the State Government in the Urban Development Department shall take a decision on the Petitioner's representation as expeditiously as possible and in any case on or before 15 February 2015.

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Mr.Kamdar, learned counsel for the Municipal Corporation submitted that the Municipal Corporation was earlier not very enthusiastic or keen to recommend Petitioner's case for heritage TDR on the ground that the original structure itself was not a heritage building and secondly that making such recommendation to the State Government may result into large number of similar proposals being made to the Municipal Corporation for granting heritage TDR in respect of such properties.

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The learned counsel for the Petitioner submitted that the case in hand is a peculiar case because the land belongs to Municipal Corporation itself and by inducing the Petitioner to accept the proposal for construction of the primary school building and the rehabilitation building, the Petitioner had agreed to take up the redevelopment project. It is, therefore, submitted that if such decision is confined to lands belonging to the Municipal Corporation, there will be no basis for entertaining the apprehension that a large number of similar proposals will be submitted to the Municipal Corporation.

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The State Government shall take into consideration the submission recorded in paragraph 11 above while deciding the representation of Petitioner, as directed in paragraph 9 above.

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The petition is accordingly disposed of in terms of the above directions. There shall be no order as to costs. However, in case Petitioner's representation is not decided within the above stipulated time, the Petitioner will be at liberty to move for revival of this petition.

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(CHIEF JUSTICE)

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(B.P.COLABAWALLA, J.)

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MST

M/s. Om Shanti Realtors v. State of Maharashtra and 6 Ors.

Case brief

What is this about?

What did the court decide?

M/s. Om Shanti Realtors v. 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

Statutes considered

Parties & counsel

Coram

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