PIL-74-2013.doc

Panchal

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

PUBLIC INTEREST LITIGATION NO. 74 OF 2013

WITH

INTERIM APPLICATION (L) NO.19120 OF 2023

WITH

INTERIM APPLICATION (L) NO. 2881 OF 2023

Altamount Road Area Citizens Committee & Anr. } Petit ioners

Versus

The State of Maharashtra & Ors. } Respondents

Mr. Darius Shroff, Senior Advocate a/w Mr. Aakash Chandran, Ms.

Tanisha Choudhary, Mr. Rohit Jadhav & Ms. Aishwarya Bapat i/by

Vis Legis Law Practice, Advocates for the Petitioners.

Mr. Milind V. More, Additional Government Pleader with Ms. Rita

Joshi, AGP for Respondent No.1-State.

Dr. Milind Sathe, Senior Advocate a/w Ms. Oorja Dhond i/by Ms.

Komal Punjabi, Advocates for Respondent Nos.2 to 12 and 18.

Ms. Anjali Maskar i/b Mr. P. G. Lad for Respondent Nos. 13 and

14-MHADA.

Mr. Ashish Kamat, Senior Advocate a/w Ms. Pallavi Bali, Mr. Parag

Kabadi and Ms. Anshita Sethi i/by T. D. Deshmukh, Advocates for

Respondent No.15.

CORAM: SHREE CHANDRASHEKHAR, CJ. &

SUMAN SHYAM, J.

Reserved on : 19

th

January 2026

Pronounced on : 08

th

April 2026

JUDGMENT

Per, Shree Chandrashekhar, CJ :

The Altamount Road Area Citizens Committee which is

represented through its Chairman, namely, Captain A shok Batra

and one Bhuvneshwari Kumari Jadeja who claimed herse lf to be a

Committee Member have filed this public interest litigation raising

certain issues relating to the construction of a building over 21,

Altamount Road, Mumbai. The petitioners state that the

permissions, concessions, approvals and sanctions granted by the

Municipal Corporation of Greater Mumbai and its officers in favor of

1

PRAVIN

DASHARATH

PANDIT

Digitally

signed by

PRAVIN

DASHARATH

PANDIT

Date:

2026.04.08

22:08:19

+0530

PIL-74-2013.doc

15

th

respondent- M/s Krishna and Company are arbitrary, illegal and

in contravention to the Rules, Regulations, Notifications etc. The

petitioners are, therefore, seeking an interference by this Court with

the plans sanctioned for the subject building from time to time and

other permissions and clearances granted for construction of the

said building over CTS No.648 which was formerly known as Lincoln

House.

2. The petitioners state that Prithvi Apartments Co- operative

Housing Society Limited

1

made a complaint to the Municipal

Commissioner through the letter dated 12

th

October 2011 regarding

the sanctioned plan and redevelopment of the subjec t building.

Around the same time, Prabhu Kutir Co-operative Hou sing Society

Limited

2

which is one of the members of the Altamount Road Area

Citizens Committee also made a complaint to the Mun icipal

Commissioner on 31

st

October 2011 and pointed out numerous

violations in the sanctioned plan and redevelopment of Lincoln

House but the Municipal Commissioner did not respond to the same.

The complaints made by Prithvi CHS and Prabhu Kutir CHS did not

evoke any response from the Municipal Commissioner and therefore

the local residents approached a member of the Legislative Assembly

for taking action in the matter. Regarding the illegal construction of

the said building, there were newspaper reports published on 9

th

November 2012 and 12

th

December 2012 in Mumbai Mirror. The

petitioners state that it was in this background that the petitioner

no.1 and three other affected Co-operative societie s made a

complaint to the Municipal Commissioner through the Advocate’s

letter dated 20

th

December 2012 for causing an inquiry into the

matter. The petitioners further state that Prithvi CHS which was

provided with a copy of the Nasti file relating to construction of the

1Prithvi CHS

2Prabhu Kutir CHS

2

PIL-74-2013.doc

subject building shared the said file with them which disclosed that

a proposal was submitted by 16

th

respondent who is the Architect

appointed by 15

th

respondent-Developer for the redevelopment of

Lincoln House consisting of two floors over the ground floor and

standing over CTS No.648 proposing demolition of Lin coln House

and construction of two buildings, one comprising of the ground floor

and twelve floors and the other building comprising of a Stilt floor

with seven additional floors. A perusal of the Nasti file recorded

several startling facts in respect to which complaints were made but

no action was taken. Prompted by the inaction on the part of the

State-respondents, the petitioners filed this public interest litigation.

They took out Chamber Summons on 3

rd

February 2014 for

amending the petition to challenge the amended plan dated

9

th

December 2011 and they were permitted to carry out the

amendments within four weeks vide order dated 26

th

July 2016.

Thereafter, there was another change in the building plan and the

petitioners filed interim application vide Interim Application (L)

No.2881 of 2023 to lay a challenge to the amended plan dated 15

th

June 2018.

3. In their affidavit-in-reply, the respondent nos.2 to 12 and 18

have taken a preliminary objection to the maintaina bility of this

public interest litigation on the ground that this petition involves

various disputed questions of fact which cannot be gone into in a

petition under Article 226 of the Constitution of India. The subject

building is constructed over CTS No.648 in Malabar and Cumballa

Hill Division which is a residential zone and not affected by any CRZ

regulation or reservation. The existing building over the said plot was

“A” category cessed structure which was proposed to be redeveloped

with necessary NOC from MBRR Board. Later on, a plan for a

building comprising of a Stilt floor and three parking floors with

fourteen upper floors was approved vide IOD dated 1 1

th

January

3

PIL-74-2013.doc

2002. The plan was further amended and the Commence ment

Certificate was re-endorsed on 9

th

May 2007 as per the amended

plan. On 9

th

December 2011, the plan was further amended and a

full Commencement Certificate was granted for the subject building

comprising of a basement, ground floor, mezzanine f loor and

fourteen habitable floors with two parking floors and the other

Commencement Certificates were also released from t ime to time.

The reports published in Mumbai Mirror are denied and it is stated

that a clarification was sent to the said newspaper on the basis of a

report submitted by the Deputy Chief Engineer (PP) to the Municipal

Commissioner but that was not published by the said newspaper. It

is stated that Prabhu Kutir CHS, Prithvi CHS and th e petitioners

were also provided clarifications with respect to the allegations made

in the newspaper report. The petitioners fruther state that there was

a litigation pending in the Bombay City Civil Court in LC Suit

No.6224 of 2003 where the Prithvi CHS has challenged the stop work

notice dated 20

th

November 2003 issued by the respondent no.2.

4. Mr. Darius Shroff, the learned senior counsel for the petitioners

contended that the concessions granted to 15

th

respondent-Developer

have seriously hampered the basic requirements for good life and

affected the guarantee of right to life under Article 21 of the

Constitution of India. The provisions for fire protection requirements

under DCR-43 make it mandatory that every building for human

occupancy shall be provided with exits sufficient to permit safe

escape for its occupants in case of fire or other emergency but the

amended plans sanctioned by the respondent-authorit ies virtually

leave no space for an escape route.

5. Mr. Darius Shroff, the learned senior counsel fur ther

contended that the Commissioner has no power to gra nt relaxation

under DCR-64(b) which will affect safety, fire safety, structural safety

4

PIL-74-2013.doc

and public safety of the inhabitants of the buildin g and the

neighborhood. The Municipal Commissioner can grant relaxation

under DCR-64(b) in case of demonstrable hardship an d only when

the relaxation does not affect health safety, fire safety, structural

safety and public safety. The learned senior couns el for the

petitioners referred to the decision in “M/s. West Coast Builders Pvt.

Ltd.”

3

wherein a Division Bench of this Court observed that there is a

growing tendency amongst the builders to flout each and every

regulation framed by the Corporation to regulate the construction in

the city. In “Malad Kokil Co-operative Housing Society”

4

, this Court

held that the hardship referred to under Regulation 64(b) should not

be the self-created hardship of the builder, developer or architect and

the Commissioner is required to take into account t he hardship

which may be caused to other directly affected persons such as the

residents, purchasers and others. It is further contended that the

deviations from the sanctioned plan can be regularized by way of an

exception and not as a rule and, in any case, the d eliberate

deviations should not be condoned and compounded.

6. Mr. Darius Shroff, the learned senior counsel referred to the

amended building plans and endeavored to demonstrat e with the

help of a comparative chart of amended DCRs that th e successive

building plans sanctioned by the Commissioner were in violation of

the applicable DCRs. For the sake of convenience, w e would

reproduce the comparative chart of the DCRs and the amended

DCRs as under:

Provision DCR 1991 DCR 2012 amendment DCR 2034

1. Fire Safety

Requirements

Regulation 43 (1)(A)

...The approach to

the building & open

Regulation 43 (1)A

In case of rehabilitation

/ composite buildings

Regulation 47 (1)

(A)

In case of

3M/s.West Coast Builders Pvt. Ltd. & Anr. v. Collector of Bombay & Ors. : 1994 SCC

OnLine Bom 54.

4Malad Kokil Coop. Housing Society Ltd. v. Modern Construction Co. Ltd. & Ors.: 2012

SCC OnLine Bom 1310.

5

PIL-74-2013.doc

spaces on all sides

up to 6 m width &

their layput shall

conform to the

requirements of the

Chief Fire Officer....

on plots exceeding 600

sq. m and having

height more than 24

m, at least, one side

other than road side,

shall have clear open

space of 6 m at ground

level, accessible from

road side. Provided, if

the building abuts

another road of 6m or

more this condition

shall not be insisted.

rehabilitation/

composite

buildings having

height more than

32 m, at least one

side other than

road side, shall

have clear open

space of 6 m at

ground level,

accessible from

road side.

Provided, if the

building abuts

another road of 6

m or more, this

condition shall not

be insisted upon.

Provided, however,

if podium is

proposed it shall

not extend 6 m

beyond building

line so as to have

clear open space of

6 m beyond

podium for height

up to 70 m & 9 m

beyond 70 m.

These open spaces

shall be free from

any obstruction &

shall be motorable

2. Open

Space

Regulation 2 (64)-

Area forming an

integral part of a

site left open to

sky.

No change Regulation 2 (IV)

(83)

Marginal open

space – Min.

distance between

the front, rear &

sides of the

building line &

respective plot

boundaries.

Regulation 2(IV)

(64)

Front open space –

space between the

boundary line of

plot abutting

means of

access/road/street

& building line.

Plots facing two or

more means of

accesses/

6

PIL-74-2013.doc

roads/streets shall

be deemed to front

on all such means

of accesses/

roads/streets.

3.

Demostrable

hardship

Regulation 64 (b)-

In specific cases

where a clearly

demonstrable

hardship is caused,

the Commissioner

may for reasons to

be recorded in

writing, by special

permission permit

any of the

dimensions

prescribed by these

Regulations to be

modified, except

those relating to

floor space indices

unless otherwise

permitted under

these Regulations,

provided that the

relaxation will not

affect the health,

safety, fire safety,

structural safety

and public safety

of the inhabitants

of the building and

the neighborhood.

No change Regulation 6 (b)- In

specific cases

where a clearly

demonstrable

hardship is

caused, the

Commissioner may

for reasons to be

recorded in writing,

by special

permission permit

any of the

dimensions

prescribed by

these Regulations

to be modified,

except those

relating to floor

space indices

unless otherwise

permitted under

these Regulations,

provided that the

relaxation will not

affect the health,

safety, fire safety,

structural safety

and public safety

of the inhabitants

of the building and

the neighborhood.

4. Max.

permissble

width of

elevation

which shall

not reduce

the marginal

open space

Regulation 30 (ii) e

-

Chajjas, cornices,

ornamental

projections shall

not be more than

1.2m from the fact

of the building.

No chajjas,

cornices,

ornamental

projections shall be

allowed which

reduce the width of

the required open

space to less than

2.5m

Regulation 30 (ii) (e)

(e)(i) a chajja, cornice,

weather shade, sun

breaker not more than

1.2 m from the face of

the building. No chajja,

cornice, weather

shade, sun breaker etc.

shall reduce the width

of the required open

space to less than

2.5m.

Further chajja, cornice,

weather shade, sun

breaker or other

ornamental projections

etc. shall be

permissible upto 0.3m

Regulation 42 (ii)

(e)

(e)(i) A chajja,

cornice, weather

shade, sun-

breaker; at lintel

level, only and

Vertical fins

(excluding

columns) projecting

not more than 1.2

m from the face of

the building. No

chajja, cornice,

weather shade,

sun-breaker etc.

shall reduce the

width of the

7

PIL-74-2013.doc

in Gaothan area for the

plots adm. Upto 250

sq. mts. However, in

case of redevelopment

of cessed buildings,

where marginal

distances are less,

chajja projections

maximum upto 0.45m

may be allowed.

(ii) the ornamental

projections, flower

beds etc., projecting not

more than 1.2 m from

the face of building. No

ornamental projection,

flower beds, etc. shall

be permissible which

will reduce the width of

required open space to

less than 2.5m.

Further chajja, cornice,

weather shades, sun

breaker or other

ornamental projections

etc. shall be

permissible upto 0.3

mts in Gaothan areas

for plots adm. upto 250

sq. mts.

required open

space to less than

2.5 m.

Further chajja,

cornice, weather

shade, sun breaker

or other

ornamental

projections etc.

shall be

permissible upto

0.60m in Gaothan

area for the plots

admeasuring upto

250 sq.m.

However, in case

of redevelopment

scheme under

Regulation No.

33(7) where

marginal distances

are less, chajja

projection

maximum up to

0.45 m may be

allowed.

(ii) The ornamental

projection, flower

beds, etc.

projecting not more

than 1.2 m from

the face of the

building. No

ornamental

projection, flower

beds, etc. shall be

permissible, which

will reduce the

width of the

required open

space to less than

2.5 m.

5. Balcony

to not reduce

the open

space

Regulation 30 (ii)

(d)

(d) balcony for

residential building

contructed in

conformity with

sub-Regulation (22)

of Regulation 38, if

it does not reduce

the width or the

clear required

marginal open

space to less than

No Change Regulation 42 (ii) (f)

Balcony as

specified in

Regulation No. 37

(20).

8

PIL-74-2013.doc

3 m at the rear &

sides & 1.5 m in

front. Width of

balcony to be

measured

perpendicular to

building line &

rekoned from that

line to the

building’s outer

most edge.

6. Additional

Fire Staircase

Regulation 44 (5)

External staircase

of fire escape (free

of FSI) mandatorily

required for multi-

storeyed buildings.

Regulation 44 (5) (A)

(a) in case of multi-

storeyed residential

building having height

more than 24 m, and

less than 70m

additional staircase

shall be necessary.

Provided however, it

will not be necessary,

if -

(i) travel distance does

not exceed as

mentioned in sub

regulation 2(ii)(1) (i and

ii) or regulation 43;

(ii) if floor area of any

floor does not exceed

500 sq. mts. Note: the

staircases shall be of

enclosed type having

minimum width of

1.5mt.

(b) Buildings having

height of 70m or more,

shall be provided with

two enclosed type

staircases, each having

width not less than

2.8m (c) whenever two

staircases are

necessary, both the

staircases shall open

and

terminate at ground

floor or

to any other place of

safety.

The staircase shall be

remote as possible.

Regulation 48 (5)

(A)

(5) (A) Additional

Staircase: (a) In

case of high-rise

Residential

buildings of 70 m

or less, additional

staircase shall be

necessary.

Provided, however,

it will not be

necessary, if, (i)

Travel distance

does not exceed

that mentioned in

sub regulation (3)

(ii)(i)(i and ii)of

regulation 47 and;

(ii) If floor area on

any floor does not

exceeds 500 sq. m.

Note- These

staircases shall be

of enclosed type

having minimum

width of 2 m.

ELEVATION PROJECTIONS

7. Balcony

definition

Regulation 2 (3) (9)

A horizontal

No change Regulation 2 (IV)

(14)

9

PIL-74-2013.doc

projection

including a

parapet, hand-rail

balustrade to serve

as a passage or

sitting out place.

A horizontal

projection

including a

parapet, hand-rail

balustrade to serve

as a passage or

sitting out place.

7. In short, all that the petitioners claim is that the respondent-

authorities have acted arbitrarily and granted appr ovals,

permissions, sanctions etc. in favor of 15

th

respondent-Developer

contrary to the applicable requirements. On the other hand, the

State-respondents have justified their actions and stated that after

coming into force of the DC Regulations-2034 the pl an for the

subject building has been converted under DCPR 9(6)(b). Now the

provisions of DCR 1991 and DCPR 2034 both are applicable to such

a building plan and there is nothing illegal about it. These

respondents have further stated as under :-

“3) Post coming into force of the DCPR 2034, the proposal in respect of

the said building has been subsequently converted under DCPR 9(6)b

by virtue of which provisions of both DCR 1991 and DCPR 2034 are

applicable to the said building, as per DCPR 2034.

4) The plans are amended under No. EB/8640/D/A dated

27.04.2023, hence, all the earlier approved plans in respect of the

said building have become subsumed in the latest plan. Also, as per

the last approved plans the construction of the said building is

completed and part occupation has been granted by the Corporation

on 27.04.2023 pursuant to Fire NOC dated 21.04.2023. I say that,

although the requirement of R.G./LOS is different for the building

under DC Regulation 33(7), in the last amended plans dated

27.04.2023, the Architect has voluntarily proposed recreational open

space (LOS) and has provided for LOS/RG on mother-earth that is on

the ground level which is 10% (ten percent) of the net plot area. Hereto

annexed and marked as "Exhibit-A" is a copy of the amended plans

under No. EB/8640/D/A dated 27.04.2023.

5) Further, as per the, last amended plans dated 27.04.2023 the

servant toilet area granted free of FSI does not exceed 2.59 sq. mtrs,

and remaining is counted in FSI. In the earlier approved plans of the

year 2018 also, the area exceeding 2.59 sq. mtrs. of the servant toilet

was counted in FSI. Moreover, providing the servant toilets next to the

flat is permissible since the plans of the said building were approved

prior to 06.01.2012 i.e. before the modified DC Regulation, 1991

coming into force and hence servant toilets were allowed on same

10

PIL-74-2013.doc

level as that of the flat and the passage which has been provided free

of FSI has been granted by recovering premium from the

developer/owner and the same is permissible under the relevant DCR

and policies in force of the Corporation.

6) I further say that, as per last plan lift machine room has been

provided for the lifts as per D.C. Regulations and policies in force.

Area beneath the lift machine room which has granted free of FSI is

permissible as per the D.C. Regulation and policies in force and the

concessions granted to this building like elevation treatment and all

other concessions have been also granted to several buildings in

Mumbai which were under construction prior to 06.01.2012 as per the

D.C. Regulations, 1991 and policies in force.

7) It is pertinent to state that elevation projection of more than 4 (four)

feet and similar to the elevation projection granted to the said building

has also been granted to other buildings which are in the vicinity of

the said building and also to many buildings in Mumbai City. The air-

handling unit and lilly-ponds are granted to the said building are

within permissible limits and are as per the policy of the Corporation.

8) As per the records with these Respondents, Respondent No.15 viz.

M/s. Krishna & Co. is the Owner of C.S.No.648. There were existing

cessed structures standing on the C.S.No.648 and the same were also

being assessed to taxes. The structures were built prior to 1940 as

shown in City Survey Plan and were in existence till permission for

redevelopment was granted in January, 2002, and therefore, repair

cess was also levied in respect of the same. Therefore plot bearing

C.S.No.648 was already built upon and the property was saddled

with existing cessed structures and hence the project is under DCR 33

(7).

9) I say that the plans sanctioned by these Respondent s are in

conformity with D.C. Regulations and policies of the Corporation and

the said building has been constructed by Respondent No. 15 in

accordance with the approvals granted and plans sancti oned by

these Respondents on the basis of the relevant D.C. Reg ulations,

1991 and DCPR 2034 and policies in force.”

8. Dr. Milind Sathe, the learned senior counsel appearing for the

State-respondents contended that this public interest litigation is

based on incomplete and misleading facts and on err oneous

assumptions regarding the applicability of DC Regul ations. The

learned senior counsel referred to the IOD and CC granted to 15

th

respondent-Developer and submitted that the buildin g plan was

strictly as per the prevailing regulations under DC R 33(7) for

providing the minimum open space. There was no vio lation of the

11

PIL-74-2013.doc

DC Regulations and the “elevation projection” or “lily ponds” were

permissible under DCR 35(2)(c). Aligning with him, Mr.Ashish

Kamat, the learned senior counsel appearing for 15

th

respondent-

Developer challenged the very basis of filing of this public interest

litigation. The learned senior counsel referred to notifications,

clarifications and the applicable regulations for the ongoing projects

and submitted that the sanctions, approvals, permis sions etc.

granted for the subject building are as per the norms.

9. The Lincoln House was in existence since 1

st

September 1940

and that was a cessed structure. The sanctioned plan for the subject

building is a redevelopment plan which is entitled for certain

concessions and relaxations. The IOD for the subject building was

issued on 11

th

January 2002 and the Commencement Certificate was

granted on 7

th

November 2002. At that time, the minimum open

space requirement was 1.5 meters under the DC Regul ation 33(7).

Clause 6.11 of the modified DC Regulation dated 15

th

October 2003

shall not apply to such building plans which were already sanctioned

and approved. Dr. Milind Sathe, the learned senior counsel

submitted that the plinth of the building which was already laid

could not have been changed and, therefore, Regulation-23 has no

application in the present case. The two-building p lan which

according to the petitioners was changed in the 3

rd

amended plan for

a single building has no real effect as the petitioners themselves have

stated that only building “A” which has habitable flats is for sale.

This is also a matter of record that no permission for any additional

construction has been granted in the building plan dated 27

th

April

2023. Quite clearly, whether the building plans sanctioned up to 9

th

December 2011 shall comply with the DC Regulations prior to 6

th

January 2012 is no longer an issue. Even otherwise, we are satisfied

that the previous building plans were as per the ex isting DC

Regulations. Dr. Milind Sathe, the learned senior counsel rightly

12

PIL-74-2013.doc

pointed out that the threshold date for deciding th e minimum

marginal open space shall be the date when IOD was first granted.

There is no illegality in approving the elevation projections for the

subject building free of FSI with the sanction of the Municipal

Commissioner. We find that the provisions for the servant toilet area,

lift machine room, balcony etc. in the sanctioned plan have been

approved as per DC Regulations and minor discrepancies, if any, in

such permissions cannot be a basis to entertain the writ petition

labelled as a public interest litigation. The plan for the subject

building was approved prior to coming into force of Clause 6.11 with

effect from 15

th

October 2003 and the amended criteria provided

under the modified DC Regulations shall not apply to the subject

building. There was no requirement for providing a second staircase

before the building plan was sanctioned. Even so, the respondents

have stated that a provision for additional staircase has been made

in the last approved building plan. Similarly, a provision for RG +

LOS has been made in the building plans approved on 27

th

April

2023. Even assuming for the sake of arguments that the area for the

Air Handling Unit (AHU) should be more than 10 thou sand sq.ft.

under the DCR 35(2)(j)(v), the space provided for AHU is just a little

less than what has been claimed by the petitioners.

10. The petitioners state that the respondent-authorities have set a

wrong and dangerous precedent by granting arbitrary and illegal

permissions, concessions, approvals etc. for construction of the

residential building by 15

th

respondent-Developer. According to them,

this issue is of general public importance as such permissions,

concessions, approvals etc. would have adverse impact on the civic

amenities. The residents around the Altamount Road would face

various infrastructural difficulties and this may also impact the

safety and security in the neighborhood. Mr. Darius Shroff, the

learned senior counsel for the petitioners submitted that there is not

13

PIL-74-2013.doc

enough space on all four sides of the building for the passage of the

fire tender and the subject building is posing a high risk of loss of life

and property if fire breaks out in the building. However, we do not

find any basis for such apprehensions. The subject building has

inbuilt in-house fire fighting systems which are catered with dual

power supply and dedicated water-tank for fire exti nguishing

purposes. The petitioners have clearly failed to demonstrate that the

inhabitants of the subject building are likely to suffer safety hazards.

In “Dr. B. Singh”

5

, the Hon’ble Supreme Court observed that there

must be real and genuine public interest involved in the litigation

and not merely an adventure of knight errant borne out of wishful

thinking. There is no arbitrary exercise of powers by the Municipal

Authorities. The deficiency, if any, in providing the amenities shall be

a consumer dispute which the flat owners may agitat e before the

appropriate Consumer Forum. In fact, there should not be an inquiry

by this Court in this public interest litigation to examine the

allegations of deviations in the building plan.

11. Mr. Darius Shroff, the learned senior counsel for the petitioners

referred to the letter of the Architect who claimed elevation treatment

free of FSI on the ground of aesthetic. He submitted that a chhajja,

cornice, weather shed, sun-breaker etc. cannot extend beyond 1.2

meters from the face of the building and such elevation should not

also reduce the width of the required open space to less than 2.5

meters. On the other hand, this is the case pleaded by the

respondents that a Notification was issued by the U rban

Development Department on 7

th

October 2013 whereunder the

permissible FSI for the subject building could have been claimed

from 2.5 to 3 which would squarely answer the allegation of free FSI.

Similarly, there was a Government Notification issued on 21

st

May

2015 which clarified the applicability of pre-2012 DC Regulations for

5Dr. B. Singh v. Union of India & Ors.” (2004) 3 SCC 363

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ongoing projects and, in the meantime, the DCPR-203 4 came into

force with effect from 23

rd

September 2022. The government has the

power to change the Regulations and the Municipal Authorities are

vested with a discretion to grant approvals, permissions, relaxations

and concessions. This is not the domain of the Courts to embark

upon an inquiry to measure a particular exercise of discretion by the

Commissioner and other authorities of the Corporation. In a public

interest litigation, the Courts should not interfere in the matters

pertaining to subjective satisfaction of the Executives even if the

administrative decision is open to criticism. There cannot be any

hard and fast rule as to how the Executives should exercise their

discretion and the Courts should not interfere with the exercise of

discretion unless it is found to be palpably arbitrary. In “People’s

Union for Democratic Rights”

6

, the Hon’ble Supreme Court observed

that this is not the purpose of a public interest litigation to enforce

the right of one individual against the other but it is intended to

promote and protect the legal rights of a large number of people who

are poor, ignorant or in a socially or economically disadvantaged

position in life. In “Balwant Singh Chaufal”

7

, the Hon’ble Supreme

Court observed as under :-

“36. Public interest litigation is not in the nature of adversarial

litigation but it is a challenge and an opportunity to the Government

and its officers to make basic human rights meaningfu l to the

deprived and vulnerable sections of the community and to assure

them social and economic justice which is the signature tune of our

Constitution. The Government and its officers must welcome public

interest litigation because it would provide them an occasion to

examine whether the poor and the downtrodden are get ting their

social and economic entitlements or whether they are continuing to

remain victims of deception and exploitation at the hands of strong

and powerful sections of the community and whether s ocial and

economic justice has become a meaningful reality for them or it has

remained merely a teasing illusion and a promise of unreality, so that

in case the complaint in the public interest litigation is found to be

true, they can in discharge of their constitutional obligation root out

6People’s Union for Democratic Rights & Ors. v. Union of India & Ors.: (1982) 3 SCC 235.

7State of Uttaranchal v. Balwant Singh Chaufal & Ors.: (2010) 3 SCC 402.

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exploitation and injustice and ensure to the weaker sections their

rights and entitlements.”

12. A petition filed in the garb of public interest litigation cannot be

entertained where no material facts constituting a cause in the larger

public interest has been disclosed. Merely because some documents

have been produced on record to project a few deviations from the

applicable requirements while sanctioning a building plan, the High

Court should not entertain such a petition. The petitioners have

made multiple prayers in this public interest litigation and are

seeking variety of directions and restrain orders including causing of

an inquiry in the matter and initiation of criminal proceedings

against the respondents who are responsible for granting approvals,

sanctions, concessions etc. in favor of 15

th

respondent which is a

private Developer. A public interest litigation with prayers such as:

(a) a direction to produce the records; (b) a direction to produce the

materials on the basis of which a building plan was sanctioned and

(c) a direction to the respondent authority to justify its action are

liable to be dismissed at the threshold. Such publi c interest

litigations cause serious apprehensions in the mind of the State

authorities, obstruct functioning of the government machinery and

result in wastage of Court’s invaluable time. In our opinion, the Right

to Information Act, 2005 has been enacted with a noble purpose to

make the government decisions transparent and not t o espouse

personal grudge.

13. The interim application vide Interim Application (L) No. 2881 of

2023 was filed more than five years after the amended plans were

sanctioned on 15

th

June 2018. This interim application remained

pending for more than two years and was never prose cuted. The

petitioners have filed Interim Application (L) No. 19120 of 2023

seeking further amendments in the petition and this interim

application has also remained pending since then. In these facts, it is

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not difficult to say that the process of the Court has been abused by

the petitioners and this Court must refuse to proceed further with

the matter. The learned senior counsel for the petitioners referred to

the decisions in “Sanjeev Builders”

8

, “Surendra Kumar Sharma”

9

,

“Pankaja”

10

, “Sampat Kumar”

11

and “LT Foods”

12

and submitted that

a delay in applying for the amendment cannot be a ground to refuse

the amendment and the amendments vide Interim Appli cation (L)

Nos.2881 of 2023 and 19120 of 2023 deserve to be allowed as these

amendments shall really subserve the ultimate cause of justice and

avoid further litigation. These judgments cited on behalf of the

petitioners do not avail any help to them to answer the accusations

that this public interest litigation was filed not for any genuine cause

and the petitioners did not take any step in the matter for oblique

reasons. The powers of the Court to permit amendmen t in the

pleadings are exercised in furtherance of justice, equity and good

conscience. This is also necessary at the same time to keep in mind

that a writ petition which is filed with certain prayer is not spilled

over all the places by virtue of amendments sought in the petition.

The conduct of the petitioners is not above board and this public

interest litigation lacks bona fide. In “Tehseen Poonawalla”

13

, the

Hon’ble Supreme Court observed that the jurisdiction of the High

Court has been brazenly misutilized by the persons with personal

agenda and by those who are motivated by a desire to seek publicity.

In “Kushum Lata”

14

, the Hon’ble Supreme Court held that a “public

interest litigation” should not be a “publicity interest litigation” or

“private interest litigation” or “politics interest litigation” or as the

latest trend is “paise income litigation”.

8LIC v. Sanjeev Builders Pvt. Ltd. & Anr.: (2022) 16 SCC 1.

9Surendra Kumar Sharma v. Makhan Singh: (2009) 10 SCC 626.

10Pankaja & Anr. v. Yellappa by Lrs. & Ors.: (2004) 6 SCC 415.

11Sampath Kumar v. Ayyakannu & Anr. : (2002) 7 SCC 559.

12LT Foods Ltd. v. Sachdeva & Sons Rice Mills Ltd. & Ors.: (2014) 215 DLT 39 (DB).

13Tehseen Poonawalla v. Union of India & Anr. (2018) 6 SCC 72

14Kushum Lata v. Union of India & Ors.: (2006) 6 SCC 180.

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14. There is considerable force in the submission of Mr. Kamat, the

learned senior counsel that the petitioners suppressed the material

facts and made misleading statements in the petition so as to create

a picture as if they are espousing a public cause. A permission to

inspect the entire records was given to the advocat e for the

petitioners on 27

th

November 2013 and the photocopies of the

amended plans, part OC plan and CFO NOC were provid ed to him

but the petitioners did not disclose the true and correct facts to this

Court. This public interest litigation is a targeted attack on the

subject building constructed by 15

th

respondent-Developer and this

is a classic example of abuse of the public interes t litigation

jurisdiction. The learned senior counsel referred to the decision in

“Narmada Bachao Andolan ”

15

wherein the Hon’ble Supreme Court

observed as under:

“161. A person seeking relief in public interest should approach the

court of equity, not only with clean hands but also with a clean mind,

clean heart and clean objective. Thus, he who seeks equity must do

equity. The legal maxim jure naturae aequum est nemin em cum

alterius detrimento et injuria fieri locupletiorem, means that it is a law

of nature that one should not be enriched by the loss or injury to

another. The judicial process should never become an instrument of

oppression or abuse or means to subvert justice.

162. “The interest of justice and public interest coalesce. They are very

often one and the same.” Therefore, the courts have to weigh the

public interest vis-à-vis the private interest. A petition containing

misleading and inaccurate statement(s), if filed, to achieve an ulterior

purpose, amounts to an abuse of the process of the court and such a

litigant is not required to be dealt with lightly. Thus, a litigant is bound

to make “full and true disclosure of facts”. The court is not a forum to

achieve an oblique purpose.

163. Whenever the court comes to the conclusion that the process of

the court is being abused, the court would be justified in refusing to

proceed further with the matter. This rule has been evolved out of the

need of the courts to deter a litigant from abusing the process of the

court by deceiving it. However, the concealed fact must be a material

one in the sense that had it not been suppressed, it would have an

effect on the merit of the case/order. The legal maxim jus ex injuria

non oritur means that a right cannot arise out of a wrongdoing, and it

15State of Madhya Pradesh v. Narmada Bachao Andolan & Anr.: (2011) 7 SCC 639.

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becomes applicable in a case like this. [Vide Ramjas Foundation v.

Union of India [1993 Supp (2) SCC 20 : AIR 1993 SC 852] , Noorduddin

v. Dr. K.L. Anand [(1995) 1 SCC 242] , Ramniklal N. Bhutta v. State of

Maharashtra [(1997) 1 SCC 134 : AIR 1997 SC 1236] , Sabia Khan v.

State of U.P. [(1999) 1 SCC 271] , S.J.S. Business Enterprises (P) Ltd.

v. State of Bihar [(2004) 7 SCC 166] and Union of I ndia v.

Shantiranjan Sarkar [(2009) 3 SCC 90 : (2009) 1 SCC (L&S) 575]

164. It is a settled proposition of law that a false statement made in

the court or in the pleadings, intentionally to mislead the court and

obtain a favourable order, amounts to criminal contempt, as it tends to

impede the administration of justice. It adversely affects the interest of

the public in the administration of justice. Every party is under a legal

obligation to make truthful statements before the court, for the reason

that causing an obstruction in the due course of justice “undermines

and obstructs the very flow of the unsoiled stream of justice, which

has to be kept clear and pure, and no one can be permitted to take

liberties with it by soiling its purity”. (Vide Naraindas v. Govt. of M.P.

[(1975) 3 SCC 31 : 1974 SCC (Cri) 727 : AIR 1974 SC 1252] , Advocate

General, State of Bihar v. M.P. Khair Industries [(1980) 3 SCC 311 :

1980 SCC (Cri) 688 : AIR 1980 SC 946] and Afzal v. State of Haryana

[(1996) 7 SCC 397 : 1996 SCC (Cri) 424] .)

15. The public interest litigation jurisdiction cannot be invoked by

a person to further his personal cause or satisfy his personal grudge

and enmity. The materials on record clearly indicate that there was a

litigation pending between the Municipal Corporation and Prithvi

CHS and this public interest litigation seems to have been filed at its

instance. In “R & M Trust”

16

the Hon’ble Supreme Court referred to

the previous decisions in “Balco Employees’ Union (Regd.)

17

and

“Dattaraj Nathuji Thaware”

18

and held as under:

24. Public interest litigation is no doubt a very useful handle for

redressing the grievances of the people but unfortunately lately it has

been abused by some interested persons and it has brought a very

bad name. Courts should be very very slow in entertaining petitions

involving public interest: in very rare cases where the public at large

stand to suffer. This jurisdiction is meant for the purpose of coming to

the rescue of the downtrodden and not for the purpose of serving

private ends. It has now become common for unscrupulous people to

serve their private ends and jeopardise the rights of innocent people

so as to wreak vengeance for their personal ends. This has become

16R & M Trust v. Koramangala Residents Vigilance Group & Ors.: (2005) 3 SCC 91.

17Balco Employees’ Union (Regd.) v. Union of India: (2002) 2 SCC 333.

18Dattaraj Nathuji Thaware v. State of Maharashtra: (2005) 1 SCC 590.

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very handy to the developers and in matters of public contracts. In

order to serve their professional rivalry they utilise the service of the

innocent people or organisation in filing public interest litigation. The

courts are sometimes persuaded to issue certain directions without

understanding the implications and giving a handle in the hands of

the authorities to misuse it. Therefore, the courts should not exercise

this jurisdiction lightly but should exercise in very rare and few cases

involving public interest of a large number of people who cannot afford

litigation and are made to suffer at the hands of the authorities. The

parameters have already been laid down in a decision of this Court in

the case of Balco Employees' Union (Regd.) v. Union of India [(2002) 2

SCC 333] wherein this Court has issued guidelines as to what kind of

public interest litigation should be entertained and all the previous

cases were reviewed by this Court. It was observed as under: (SCC

pp. 376-77, paras 77-80)

“77. Public interest litigation, or PIL as it is more commonly

known, entered the Indian judicial process in 1970. It will not be

incorrect to say that it is primarily the judges who have

innovated this type of litigation as there was a dire need for it.

At that stage, it was intended to vindicate public interest where

fundamental and other rights of the people who were po or,

ignorant or in socially or economically disadvantageous position

and were unable to seek legal redress were required to be

espoused. PIL was not meant to be adversarial in nature and

was to be a cooperative and collaborative effort of the parties

and the court so as to secure justice for the poor and the weaker

sections of the community who were not in a position to protect

their own interests. Public interest litigation was intended to

mean nothing more than what words themselves said v iz.

‘litigation in the interest of the public’.”

16. The scope of judicial review under Article 226 o f the

Constitution of India and, that too, in a matter projected as public

interest litigation is very limited. The writ Court cannot interfere with

the decision of the Executives so long as a reasonable procedure is

adopted and followed by the Executives. The writ Court shall not

interfere with the decision of the Executives even where some

procedural compliances are not made. This also cannot be a legal

ground to entertain a public interest litigation that necessary

approvals were granted by the Executives by exercis ing their

discretionary powers. There is no violation of any statutory right of

the petitioners or the public at large. There is no material on record

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except an endeavor to make out some case out of the amended DCRs

to demonstrate that the public interest was compromised. This writ

petition bearing the mask of a public interest litigation seems to be

intended to stall the construction of the subject building. This is not

the object behind entertaining a public interest litigation that the

complaint of a private nature with personal interest or political

motivation are encouraged. The Court while entertaining a public

interest litigation is required to be careful. In “A Parent of a Student

of Medical College, Simla”

19

, the Hon’ble Supreme Court held that the

writ Court should intervene only where the Executive is found remiss

in discharging its obligation under any law or the Constitution and

to ensure that the deprived and vulnerable sections of the

community are able to realize their social and economic rights. No

such case is made out in this public interest litigation. The motive

behind filing of this public interest litigation is not in doubt and

there is a clear objective in making 15

th

respondent-Developer a

target of attack and there is no genuine public interest involved in

this matter.

17. For the foregoing reasons, this public interest litigation is

dismissed. Consequently, the interim order dated 27

th

July 2018 is

vacated.

18. Pending Interim Applications stand disposed of.

[SUMAN SHYAM, J.] [CHIEF JUSTICE]

19 State of Himachal Pradesh v. A Parent of a Student of Medical College, Simla & Ors.

(1985) 3 SCC 169

21