In last five decades, the provisions contained in various municipal laws for planned development of the areas to which such laws are applicable have been violated with impunity in all ...
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Page 1 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7934 OF 2012
(Arising out of SLP(C) NO. 33471 of 2011)
Esha Ekta Apartments Co-operative
Housing Society Limited and others …Appellants
versus
Municipal Corporation of Mumbai and others …Respondents
WITH
CIVIL APPEAL NO. 7935 OF 2012
(Arising out of SLP(C) NO. 33601 of 2011)
CIVIL APPEAL NO. 7936 OF 2012
(Arising out of SLP(C) NO. 33940 of 2011
CIVIL APPEAL NO. 7937 OF 2012
(Arising out of SLP(C) NO. 35402 of 2011
CIVIL APPEAL NO. 7938 OF 2012
(Arising out of SLP(C) NO. 35324 of 2011
TRANSFERRED CASE (CIVIL) NO. 55 OF 2012
J U D G M E N T
G. S. Singhvi, J.
1.In last five decades, the provisions contained in various municipal
laws for planned development of the areas to which such laws are
1
Page 2 applicable have been violated with impunity in all the cities, big or small,
and those entrusted with the task of ensuring implementation of the
master plan, etc., have miserably failed to perform their duties. It is
highly regrettable that this is so despite the fact that this Court has,
keeping in view the imperatives of preserving the ecology and
environment of the area and protecting the rights of the citizens,
repeatedly cautioned the concerned authorities against arbitrary
regularization of illegal constructions by way of compounding and
otherwise. In Friends Colony Development Committee v. State of Orissa
(2004) 8 SCC 733, this Court examined the correctness of an order
passed by the Orissa High Court negating the appellant’s right to be heard
in a petition filed by the builder who had raised the building in violation
of the sanctioned plan. While upholding the appellant’s plea, the two-
Judge Bench observed:
“………Builders violate with impunity the sanctioned building
plans and indulge in deviations much to the prejudice of the
planned development of the city and at the peril of the occu-
pants of the premises constructed or of the inhabitants of the
city at large. Serious threat is posed to ecology and environment
and, at the same time, the infrastructure consisting of water sup-
ply, sewerage and traffic movement facilities suffers unbearable
burden and is often thrown out of gear. Unwary purchasers in
search of roof over their heads and purchasing flats/apartments
from builders, find themselves having fallen prey and become
victims to the designs of unscrupulous builders. The builder
conveniently walks away having pocketed the money leaving
behind the unfortunate occupants to face the music in the event
of unauthorised constructions being detected or exposed and
threatened with demolition. Though the local authorities have
2
Page 3 the staff consisting of engineers and inspectors whose duty is to
keep a watch on building activities and to promptly stop the il-
legal constructions or deviations coming up, they often fail in
discharging their duty. Either they don't act or do not act
promptly or do connive at such activities apparently for illegit-
imate considerations. If such activities are to stop some strin-
gent actions are required to be taken by ruthlessly demolishing
the illegal constructions and non-compoundable deviations. The
unwary purchasers who shall be the sufferers must be ad-
equately compensated by the builder. The arms of the law must
stretch to catch hold of such unscrupulous builders………….
The conduct of the builder in the present case deserves to be
noticed. He knew it fully well what was the permissible con-
struction as per the sanctioned building plans and yet he not
only constructed additional built-up area on each floor but also
added an additional fifth floor on the building, and such a floor
was totally unauthorised. In spite of the disputes and litigation
pending he parted with his interest in the property and inducted
occupants on all the floors, including the additional one. Prob-
ably he was under the impression that he would be able to
either escape the clutches of the law or twist the arm of the law
by some manipulation. This impression must prove to be
wrong.
In all developed and developing countries there is emphasis on
planned development of cities which is sought to be achieved
by zoning, planning and regulating building construction activ-
ity. Such planning, though highly complex, is a matter based on
scientific research, study and experience leading to rationalisa-
tion of laws by way of legislative enactments and rules and reg-
ulations framed thereunder. Zoning and planning do result in
hardship to individual property owners as their freedom to use
their property in the way they like, is subjected to regulation
and control. The private owners are to some extent prevented
from making the most profitable use of their property. But for
this reason alone the controlling regulations cannot be termed
as arbitrary or unreasonable. The private interest stands subor-
dinated to the public good. It can be stated in a way that power
to plan development of city and to regulate the building activity
therein flows from the police power of the State. The exercise
of such governmental power is justified on account of it being
reasonably necessary for the public health, safety, morals or
general welfare and ecological considerations; though an unne-
3
Page 4 cessary or unreasonable intermeddling with the private owner-
ship of the property may not be justified.
The municipal laws regulating the building construction activity
may provide for regulations as to floor area, the number of
floors, the extent of height rise and the nature of use to which a
built-up property may be subjected in any particular area. The
individuals as property owners have to pay some price for se-
curing peace, good order, dignity, protection and comfort and
safety of the community. Not only filth, stench and unhealthy
places have to be eliminated, but the layout helps in achieving
family values, youth values, seclusion and clean air to make the
locality a better place to live. Building regulations also help in
reduction or elimination of fire hazards, the avoidance of traffic
dangers and the lessening of prevention of traffic congestion in
the streets and roads. Zoning and building regulations are also
legitimised from the point of view of the control of community
development, the prevention of overcrowding of land, the fur-
nishing of recreational facilities like parks and playgrounds and
the availability of adequate water, sewerage and other govern-
mental or utility services.
Structural and lot area regulations authorise the municipal au-
thorities to regulate and restrict the height, number of storeys
and other structures; the percentage of a plot that may be occu-
pied; the size of yards, courts and open spaces; the density of
population; and the location and use of buildings and structures.
All these have in our view and do achieve the larger purpose of
the public health, safety or general welfare. So are front setback
provisions, average alignments and structural alterations. Any
violation of zoning and regulation laws takes the toll in terms of
public welfare and convenience being sacrificed apart from the
risk, inconvenience and hardship which is posed to the occu-
pants of the building.
Though the municipal laws permit deviations from sanctioned
constructions being regularised by compounding but that is by
way of exception. Unfortunately, the exception, with the lapse
of time and frequent exercise of the discretionary power con-
ferred by such exception, has become the rule. Only such devi-
ations deserve to be condoned as are bona fide or are attribut-
able to some misunderstanding or are such deviations as where
the benefit gained by demolition would be far less than the dis-
advantage suffered. Other than these, deliberate deviations do
4
Page 5 not deserve to be condoned and compounded. Compounding of
deviations ought to be kept at a bare minimum. The cases of
professional builders stand on a different footing from an indi-
vidual constructing his own building. A professional builder is
supposed to understand the laws better and deviations by such
builders can safely be assumed to be deliberate and done with
the intention of earning profits and hence deserve to be dealt
with sternly so as to act as a deterrent for future. It is common
knowledge that the builders enter into underhand dealings. Be
that as it may, the State Governments should think of levying
heavy penalties on such builders and therefrom develop a wel-
fare fund which can be utilised for compensating and rehabilit-
ating such innocent or unwary buyers who are displaced on ac-
count of demolition of illegal constructions.”
(emphasis supplied)
In Royal Paradise Hotel (P) Ltd. v. State of Haryana and Ors. (2006) 7 SCC
597, this Court noted that the construction had been made in the teeth of no-
tices issued for stopping the unauthorized construction and held that no au-
thority administering municipal laws can regularize the constructions
made in violation of the Act. Some of the observations made in that
judgment are extracted below:
“Whatever it be, the fact remains that the construction was
made in the teeth of the notices and the directions to stop the
unauthorized construction. Thus, the predecessor of the appel-
lant put up the offending construction in a controlled area in de-
fiance of the provisions of law preventing such a construction
and in spite of notices and orders to stop the construction activ-
ity. The constructions put up are thus illegal and unauthorized
and put up in defiance of law. The appellant is only an assignee
from the person who put up such a construction and his present
attempt is to defeat the statute and the statutory scheme of pro-
tecting the sides of highways in the interest of general public
and moving traffic on such highways. Therefore, this is a fit
case for refusal of interference by this Court against the deci-
sion declining the regularization sought for by the appellant.
Such violations cannot be compounded and the prayer of the
5
Page 6 appellant was rightly rejected by the authorities and the High
Court was correct in dismissing the Writ Petition filed by the
appellant. It is time that the message goes aboard that those
who defy the law would not be permitted to reap the benefit of
their defiance of law and it is the duty of High Courts to ensure
that such definers of law are not rewarded. The High Court was
therefore fully justified in refusing to interfere in the matter.
The High Court was rightly conscious of its duty to ensure that
violators of law do not get away with it.
We also find no merit in the argument that regularization of the
acts of violation of the provisions of the Act ought to have been
permitted. No authority administering municipal laws and other
laws like the Act involved here, can encourage such violations.
Even otherwise, compounding is not to be done when the viola-
tions are deliberate, designed, reckless or motivated. Marginal
or insignificant accidental violations unconsciously made after
trying to comply with all the requirements of the law can alone
qualify for regularization which is not the rule, but a rare excep-
tion. The authorities and the High Court were hence right in re-
fusing the request of the appellant.”
The aforesaid observations found their echo in Shanti Sports Club v.
Union of India (2009) 15 SCC 705 in the following words:
“In the last four decades, almost all cities, big or small, have
seen unplanned growth. In the 21st century, the menace of
illegal and unauthorised constructions and encroachments has
acquired monstrous proportions and everyone has been paying
heavy price for the same. Economically affluent people and
those having support of the political and executive apparatus of
the State have constructed buildings, commercial complexes,
multiplexes, malls, etc. in blatant violation of the municipal and
town planning laws, master plans, zonal development plans and
even the sanctioned building plans. In most of the cases of
illegal or unauthorised constructions, the officers of the
municipal and other regulatory bodies turn blind eye either due
to the influence of higher functionaries of the State or other
extraneous reasons. Those who construct buildings in violation
of the relevant statutory provisions, master plan, etc. and those
who directly or indirectly abet such violations are totally
unmindful of the grave consequences of their actions and/or
6
Page 7 omissions on the present as well as future generations of the
country which will be forced to live in unplanned cities and
urban areas. The people belonging to this class do not realise
that the constructions made in violation of the relevant laws,
master plan or zonal development plan or sanctioned building
plan or the building is used for a purpose other than the one
specified in the relevant statute or the master plan, etc., such
constructions put unbearable burden on the public
facilities/amenities like water, electricity, sewerage, etc. apart
from creating chaos on the roads. The pollution caused due to
traffic congestion affects the health of the road users. The
pedestrians and people belonging to weaker sections of the
society, who cannot afford the luxury of air-conditioned cars,
are the worst victims of pollution. They suffer from skin
diseases of different types, asthma, allergies and even more
dreaded diseases like cancer. It can only be a matter of
imagination how much the Government has to spend on the
treatment of such persons and also for controlling pollution and
adverse impact on the environment due to traffic congestion on
the roads and chaotic conditions created due to illegal and
unauthorised constructions. This Court has, from time to time,
taken cognizance of buildings constructed in violation of
municipal and other laws and emphasised that no compromise
should be made with the town planning scheme and no relief
should be given to the violator of the town planning scheme,
etc. on the ground that he has spent substantial amount on
construction of the buildings, etc.
Unfortunately, despite repeated judgments by this Court and the
High Courts, the builders and other affluent people engaged in
the construction activities, who have, over the years shown
scant respect for regulatory mechanism envisaged in the
municipal and other similar laws, as also the master plans,
zonal development plans, sanctioned plans, etc., have received
encouragement and support from the State apparatus. As and
when the Courts have passed orders or the officers of local and
other bodies have taken action for ensuring rigorous
compliance with laws relating to planned development of the
cities and urban areas and issued directions for demolition of
the illegal/unauthorised constructions, those in power have
come forward to protect the wrongdoers either by issuing
administrative orders or enacting laws for regularisation of
illegal and unauthorised constructions in the name of
compassion and hardship. Such actions have done irreparable
7
Page 8 harm to the concept of planned development of the cities and
urban areas. It is high time that the executive and political
apparatus of the State take serious view of the menace of illegal
and unauthorised constructions and stop their support to the
lobbies of affluent class of builders and others, else even the
rural areas of the country will soon witness similar chaotic
conditions.”
In Priyanka Estates International Pvt. Ltd. v. State of Assam (2010) 2
SCC 27, this Court declined the appellant’s prayer for directing the
respondents to regularize the illegal construction and observed:
“It is a matter of common knowledge that illegal and
unauthorised constructions beyond the sanctioned plans are on
rise, may be due to paucity of land in big cities. Such activities
are required to be dealt with by firm hands otherwise
builders/colonisers would continue to build or construct beyond
the sanctioned and approved plans and would still go scot-free.
Ultimately, it is the flat owners who fall prey to such activities
as the ultimate desire of a common man is to have a shelter of
his own. Such unlawful constructions are definitely against the
public interest and hazardous to the safety of occupiers and
residents of multistoreyed buildings. To some extent both
parties can be said to be equally responsible for this. Still the
greater loss would be of those flat owners whose flats are to be
demolished as compared to the builder.”
A somewhat similar question was recently considered in Dipak Kumar
Mukherjee v. Kolkata Municipal Corporation and others (2012) 10
SCALE 29. While setting aside the order of the Division Bench of the
Calcutta High Court, this Court referred to the provisions of the Kolkata
Municipal Corporation Act, 1980 in the context of construction of
additional floors in a residential building in violation of the sanctioned
8
Page 9 plan and observed:
“What needs to be emphasised is that illegal and unauthorised
constructions of buildings and other structure not only violate
the municipal laws and the concept of planned development of
the particular area but also affect various fundamental and
constitutional rights of other persons. The common man feels
cheated when he finds that those making illegal and
unauthorised constructions are supported by the people
entrusted with the duty of preparing and executing master
plan/development plan/zonal plan. The reports of demolition of
hutments and jhuggi jhopris belonging to poor and
disadvantaged section of the society frequently appear in the
print media but one seldom gets to read about demolition of
illegally/unauthorisedly constructed multi-storied structure
raised by economically affluent people. The failure of the State
apparatus to take prompt action to demolish such illegal
constructions has convinced the citizens that planning laws are
enforced only against poor and all compromises are made by
the State machinery when it is required to deal with those who
have money power or unholy nexus with the power corridors.”
2.We have prefaced disposal of these matters by taking cognizance
of the observations made in the aforementioned judgments because the
main question which arises for our consideration is whether the orders
passed by Deputy Chief Engineer, Building Proposals (City) of the
Mumbai Municipal Corporation (hereinafter referred to as ‘the Deputy
Chief Engineer’) and the Appellate Authority refusing to regularize the
illegal constructions made on Plot No.9, Scheme 58, Worli, Mumbai are
legally sustainable.
3.At the outset, we would like to observe that by rejecting the prayer
for regularization of the floors constructed in wanton violation of the
9
Page 10 sanctioned plan, the Deputy Chief Engineer and the Appellate Authority
have demonstrated their determination to ensure planned development of
the commercial capital of the country and the orders passed by them have
given a hope to the law abiding citizens that someone in the hierarchy of
administration will not allow unscrupulous developers/builders to take
law into their hands and get away with it.
4.The Municipal Corporation of Mumbai (for short, ‘the
Corporation’) leased out the plot in question, of which land use was
shown in the development plan as ‘General Industrial’ to M/s. Pure
Drinks (hereinafter referred to as, ‘the lessee’) in January, 1962. The
lessee constructed a factory and started manufacturing cold drinks under
the brand name ‘Campa Cola’. After about 16 years, the lessee engaged
an architect for utilizing the land for construction of residential buildings.
The architect made an application under Section 337 of the Mumbai
Municipal Corporation Act, 1888 (for short, ‘the 1888 Act’) for sanction
of plans of the proposed residential buildings. The same was rejected by
the Planning Authority vide order dated 31.7.1980 on the ground that the
required NOCs had not been obtained and the Competent Authority had
not given exemption under the Urban Land (Ceiling and Regulation) Act,
1976. Another application made by the architect was rejected by the
Planning Authority on similar grounds.
10
Page 11 5.In view of the above development, the lessee made an application
to the Corporation for change of land use from ‘General Industrial’ to
‘Residential’. The latter forwarded the same to the State Government
along with a proposal for modification of the development plan of the
area. The State Government accepted the proposal of the Corporation
and passed an order dated 31.12.1980 under Section 37(2) of the
Maharashtra Regional and Town Planning Act, 1966 (for short, ‘the 1966
Act’) in respect of 13049 sq. meters leaving the balance 4856 sq. meters
for industrial use. This was subject to the condition that development
shall be as per the Development Control Rules for Greater Mumbai, 1967
(for short, ‘the D.C. Rules’) and other relevant statutory provisions.
Thereafter, the architect engaged by the lessee submitted revised plans for
construction of residential buildings. The Planning Authority granted
approval on 8.6.1981 for construction of 6 buildings comprising
basement, ground and 5 upper floors. The commencement certificate was
issued on 10.6.1981. On 27.6.1981, the Additional Collector and
Competent Authority granted permission under Section 22 of the Urban
Land (Ceiling and Regulation) Act for demolition of the structure and
redevelopment in accordance with the provisions of the D.C. Rules.
6.On 12.8.1981, the lessee executed an Assignment Agreement in
favour of P.S.B. Construction Company Limited. Paragraphs 10 and 11
of that agreement read as under:
11
Page 12 “10. The Developer shall construct the said buildings on the
said sub-plot in accordance with the approved plan of the said
buildings as sanctioned by the Corporation and/or in
accordance with modifications and/or amendments thereto as
may be sanctioned by the Corporation on the application in that
behalf being made by the Owner at the instance of the
Developer.
11. The Developer shall also construct the said building on the
said sub-plot in accordance with and subject to the conditions
stipulated in the letter of Intent dated 27
th
May 1981 made by
the Additional Collector and Competent Authority under the
ULC Act or such modifications and/or amendments thereto as
may be sanctioned by the Additional Collector and Competent
Authority on the application in that behalf being made by the
Owner at the instance of the Developer and the sanction under
Section 22 under the ULC Act, to be obtained by the Owner
after compliance with the conditions in the said Letter of Intent
or any modifications and/or amendments thereto as aforesaid
and the development control rules of the Corporation and such
other rules and regulations as are applicable”.
Simultaneously, an irrevocable Power of Attorney was executed by
the lessee in favour of the developer, i.e., P.S.B. Construction Company
Limited.
7.Similar agreements were executed by the lessee on 20.8.1981 in
favour of Mohamed Yusuf Patel son of Abdulla Patel and Mohinuddin
son of Tayab Soni. On 16.6.1982, P.S.B. Construction Company Limited
entered into an agreement with S/Shri B.K. Gupta, Manmohansingh
Bhasin and Mohamed Yusuf Abdullah Patel appointing the latter as
promoters of the builders and authorised them to develop one portion of
the plot by demolishing the existing structures and constructing building
12
Page 13 Nos. 1, 3 and 8 in accordance with the sanctioned plan.
8.The architect, who was initially engaged by the lessee, continued to
work on behalf of the developers/builders and promoters. The amended
plans submitted by him for construction of 9 buildings with ground and 5
upper floors were also approved vide order dated 2.2.1983.
9.In 1983, the lessee secured permission from the Chief Minister of
the State to raise the height of the buildings up to 60 feet. However, the
revised plans submitted for construction of separate buildings comprising
stilt and 24 upper floors; stilt and 16 upper floors with additional 6
th
and
7
th
floor on building No.2 and additional 6
th
floor on building No.3 were
rejected by the Planning Authority vide order dated 6.9.1984.
10.Notwithstanding rejection of the revised building plans, the
developers/builders continued to construct the buildings. Therefore,
Executive Engineer, A.E. Division of the Corporation issued ‘stop work
notice’ dated 12.11.1984 under Section 354A of the 1888 Act mentioning
therein that if the needful is not done, the construction will be forcibly
removed. It is a different story that after issuing ‘stop work notice’, the
authorities of the Corporation buckled under pressure from the
developers/builders and turned blind eye to the illegal constructions made
between 1984 and 1989. For the sake of reference, notice dated
12.11.1984 is reproduced below:
13
Page 14 “MUNICIPAL CORPORATION OF
GREATER BOMBAY
Notice under section 354A of the
Bombay Municipal
Corporation Act 12.11.1984
No.EB/3347/A of 1981
To
Shri Madanjit Singh C.A. Shri Charanjit Singh, Pure Drinks
Pvt. Ltd., Plot. No.9 Worli Scheme No.58 B.G. Kher Marg,
Worli Bombay-18.
Whereas the erection of a building work as described in section
342 of the above mentioned act is being unlawfully carried on
you at premises NO.C.S.No.868 and 1/868 of Worli situated at
plot No.9 Worli Scheme 58 B.G. Kher Marg Worli.
And whereas under section 68 of the said Act the Municipal
Commissioner for greater Bombay has duly empowered me to
exercise the powers conferred upon him by section 354 A of the
said Act. Now I do hereby give you notice that if, after the
expiration 24 hours from the service hereof upon you, it is
found that the construction of said building work is still being
carried on by you, I shall, pursuant to section 354A of the said
Act and in exercise of the powers conferred on me as aforesaid,
direct that you be removed from the said-premises by police
officer.
Work being carried out beyond approved plan in as much as the
foundation work of sky scrapper is being lane site incharge plot
no.9.
B.G. Kher Marg Worli.
A.E. Division
Executive Engineer
B.P. (City)
Bombay Municipal Corporation”
11.In the interregnum, the lessee and the developers/builders engaged
a new architect, namely, Shri Jayant Tipnis. He submitted another set of
14
Page 15 plans on 3.6.1985 proposing 7 new buildings and requested for
withdrawal of stop work notice. The Planning Authority rejected the new
plans on the ground that the construction had been raised in gross
violation of the sanctioned plan. Thereupon, Shri Jayant Tipnis sent
notice dated 9.8.1985 to the lessee that no work should continue till the
amended plans are sanctioned. The Executive Engineer of the
Corporation sent letter dated 28.9.1988 to Shri Jayant Tipnis with a copy
to the lessee and asked them to inform the developers/builders not to
proceed with the work till the stop work notice was withdrawn. In turn,
Shri Jayant Tipnis wrote to the developers/builders that they should not
continue the construction. He also informed the Corporation about the
intimation sent to the developers/builders and stated that despite
intimation they had illegally and unauthorisedly carried out the
construction work by utilizing excess Floor Space Index (FSI).
12.In 1994, Shri Jayant Tipnis submitted further amended plans
prepared by M/s. Designs Consortium. The Deputy Chief Engineer
rejected the new plans by recording the following reasons:
“(1)Advantage of lift, staircase lobby area claimed which is
not admissible as per the prevailing rules, regulations and
policy.
(2)Flower-beds are not counted in F.S.I. As per then M.C.’s
order the same are to be counted in F.S.I. since they are at the
same floor level beyond balcony.
15
Page 16 (3) Inadequate parking provisions.
(4) Height of towers contravene D.C. Rule (9) provisions.
(5) R.G. is not as per D.C. Rule.
(6) Plot area for the permissible F.S.I. shall be in accordance
with the change of user permitted by U.D. Deptt.’s order.”
13.On receipt of the letter of rejection, Shri Jayant Tipnis informed the
lessee and the developers/builders that in view of the stop work notice,
the construction could not have been made in violation of the sanctioned
plan and the D.C. Rules. This was incorporated by him in letter No.BC
1414 (C)-91 dated 22.2.2002 sent to the Executive Engineer, Building
Proposals (City-I), the relevant portions of which are extracted below:
“Ref.No.BC 1414 (C)-91 22
nd
February, 2002
The Executive Engineer,
Building Proposals (City-I),
Municipal Corporation of Greater Mumbai,
Byculla,
Mumbai – 400 008.
Sub: Violation of F.S.I. at Campa-cola compound, plot
No.9, Worli Scheme No.58, B. G. Kher Marg, Worli,
Mumbai – 400 018.
Dear Sir,
We thank for your letter No.EB/3342/GS/A dated ‘nil’
personally handed over to us 21.2.2002.
Gist of how file/project moved till date is enclosed.
There was no correspondence since the last several years.
However, there used to be some notice or letter we used to
receive from a few members and correspondence of
B.Y.Builders Pvt. Ltd. We have time and again informed you
16
Page 17 that we have informed all the developers/society members,
managing bodies upto what level the plans have been
sanctioned, what was the stage of construction they have
carried out and to the developers of the project. After site visit
the summary report was worked out by the Corporation and it
was informed to owners M/s. Pure Drinks Pvt. Ltd., copy of
which was sent to us. However, how this file moved, summary
of which is enclosed which probably would be useful while
going through the matter and would also be clear about the
stand we have taken.
On a number of occasions we have informed you that all
the developers have been informed to stop the work in view of
the stop work notice and such copies have been already on
record. The developers have almost vanished from the scene
and nobody is coming forward to take on the responsibility of
the work done by them inspite of our instructions nor the
owners have any query. To sum up it is only interested
parties/flat purchasers keep on running here and there for their
daily necessities and the matter is reopened after a lapse of few
years. We strongly feel that this is a gross violation of
Development Control Rules and since the year 1984 the stop
work notice is on record. Action under MRTP Act was
initiated by you against the developers and the owners but we
do not know exactly what happened thereafter.
Sub: Proposed Development at Campa Cola Compound,
Plot No.9, Worli Scheme, B.G. Kher Marg, Worli, Mumbai-
400018.
1) to 5) xxx xxx xxx
6)By our letter BC 1414 (B)-56 dated 05.01.1990 we
addressed to all the Developers stating that the STOP WORK
notice issued by the Brihanmumbai Mahanagarpalika against
the subject work was not yet withdrawn by them but it was
observed they continue to carry out the work of one way or
other nature of the proposed structure which was in violation of
the directives issued by EEBP (City) to them, for which
responsibility solely rested with them. We, therefore, instructed
them to stop the work being carried out by them on all fronts
forthwith and if however, they continued any work at site
henceforth it would be entirely at their risk and consequences
and requested them to confirm to us in writing that the work
17
Page 18 was stopped by them completely immediately on receipt of the
said letter. Copy of the said letter was endorsed to EEBP (City)
to note the above instructions issued to the Developers.
7)xxx xxx xxx
8)In reply to letter dated 30.03.1992 addressed to the 4 De-
velopers and copy endorsed to us by Campa cola Compound Res-
idents Association, we clarified to them vide our letter No.BC 1414
(B) 6 dated 10.04.1992 bringing to their notice following facts.
8 b) To the best of our knowledge there was no occupation permis-
sion granted by Brihanmumbai Mahanagarpalika for any part of the
building except building No. 7A and B in any of the units covered
by the said proposal and therefore it was informed that they could
not occupy the flats without OCC from the Corporation and re-
quested them to vacate the flats occupied by them without delay
and to inform us accordingly.
9) Esha Ekta Apartment Co-operative Housing Society Limited
addressed a letter dated 04.08.1994 to EEBP (City) and copy
endorsed to us and the Director, Engineering Services and
Projects and the Municipal Commissioner, stating that they
were members occupying building No. 2 and requiring action
against Developers.
10a) The Developers concerned with the said Development
were kept fully informed by us about the STOP WORK notice
issued on the proposal on 24.11.1986 that no work could be
carried out at site. On the very same day of receipt of STOP
WORK notice on 24.11.1986 we instructed all the Developers
concerned to pay the penalty to BMC and also to stop the work
of the project forthwith otherwise the plans would not be
processed further with the said authority. On receipt of the
EEBP letter dated 02.06.1990, we have issued final instructions
to the Developers / Lessee to stop the work on the project
forthwith and that the responsibility for such work carried out
but not cleared by the said authority would be on them We
further stated that we were not aware of any occupation already
obtained by Esha Ekta Apartment Cooperative Housing Society
and therefore we did not undertake any responsibility for
anything contrary to the plans submitted by us to EEBP (City)
Office, if found, carried out by the said Society through their
Developers. We clarified that we had not been involved at all
18
Page 19 by the said Developers and, therefore, did not agree with any of
their statement mentioned in the said letter.
12)We have informed all the 3 Developers vide our letter
No. BC 1414(B)-77 dated 25.11.1994 intimating that amended
plans were not approvable and requesting them to coordinate
with us for arranging a joint inventory of the premises and copy
of the said letter was endorsed to Dy.C.E. B.P. (City).”
14. It is borne out from the record that even before commencement of
the construction, some of the developers/builders executed agreements
with the prospective buyers. A copy of such an agreement signed on
18.7.1985 between P.S.B. Construction Company Limited and Mrs.
Manjula Devi, W/o Amar Chand and Amar Chand was placed before the
Court on 5.1.2012 by Shri Harish Salve, who had earlier appeared on
behalf of respondent No.4, to show that the buyers of the flat were aware
that the revised plans submitted by the architect had not been approved by
the Planning Authority till the signing of agreement. This is evinced from
paragraphs (v), (w), (x) and (a-1) of the agreement, which are extracted
below:
“(v) The Builders plan to demolish the present structures
standing on the said Plot X and to put up a new multi-storeyed
buildings on the said Plot in accordance with the terms of the
said Letter of intent dated 27th May 1981 of the Additional
Collector and Competent Authority or any modification thereof
may be made by him and the permission under Section 22 of the
U.L.C. Act that may be granted by him in pursuance thereof.
(w) Building plans got prepared by the Builders for revising
the said plans sanctioned by the said corporation for putting up
such new multi-storeyed buildings on the said Plot X have been
submitted to the said Corporation for approval and sanction.
19
Page 20 (x) The Purchaser has taken inspection of the documents of
title relating to the said property, the said Notification
dated 25th December 1980, the said Letter of intent
dated 27th. May 1981, the said Agreements respectively
dated 12th August 1981, 20
th
August 1981, 1st September 1981
and 10th September 1981 and the said Power of Attorney dated
10th September 1981, and the said plans sanctioned by the said
Corporation and the revised plans, designs and specifications
prepared by the Builders’ Architects Messrs. B. K. Gupta and of
such other documents as are specified under the Maharashtra
Ownership Flats (Regulation of Construction, Management and
Transfer) Act, 1963 (which the Purchaser doth hereby confirm).
(a-1) The Purchaser has agreed to acquire from the
Builders Flat/Shop No .Two on the fifth floor of the
Building No.Two and/or covered/open car parking space garage No.
NIL in the compound (hereinafter referred to as ‘the said
Premises’) with full notice of the terms and conditions and
provisions contained in the documents referred to hereinabove
and subject to the terms and conditions hereinafter contained.”
15.Similar agreements were executed between the purchasers and the
developers/builders. In each of the agreements it was mentioned that the
developers/builders had submitted a revised plan for sanction and the
purchaser has taken inspection of the documents of title, etc.
16.After executing agreements with the developers/builders, the
prospective buyers formed Cooperative Housing Societies, namely, Esha
Ekta Apartments Cooperative Housing Society Limited, Patel Apartments
Cooperative Housing Society Limited, Orchid Cooperative Housing
Society Limited, B.Y. Apartments Cooperative Housing Society Limited,
Midtown Apartments Cooperative Housing Society Limited and Shubh
Apartment Cooperative Housing Society Limited (hereinafter referred to
as ‘the housing societies’).
20
Page 21 17.Although the members of the housing societies knew that the
construction had been raised in violation of the sanctioned plan and
permission for occupation of the buildings had not been issued by the
Competent Authority, a large number of them occupied the illegally
constructed buildings. After this, the housing societies started litigation
in one form or the other. Midtown Apartments Cooperative Housing
Society Limited filed Writ Petition No.1141 of 1999 in the Bombay High
Court for issue of a direction to the Corporation and its functionaries to
supply water to the building occupied by its members. That petition was
decided by the Division Bench of the High Court vide order dated
12.7.1999, which reads as under:
“1. The burning issue of non supply of water to the tenements is
now satisfactory resolved. We are not in a position to go into
the dispute between the Bombay Municipal Corporation and the
builder on the issues of FSI violation and the consequent non-
granting of Occupation certificate. This is a matter where there
is a triangular dispute between the Petitioner-Society the Ist
Respondent-Bombay Municipal Corporation and the 4th
Respondent-builder.
2. We give liberty to the parties to agitate their rights in an
appropriate Court of law and obtain such reliefs as they are
entitled to in law. This is not an issue which can be
satisfactorily resolved in a writ petition since there appear to be
several disputed facts.
3. The 1st Respondent BMC shall non dis-continue the water
supply of the Petitioner-Society on the ground that there are
outstanding arrears or disputes with the 4th Respondent-builder.
4. The 1st Respondent-BMC shall submit a copy of the bill for
water charges to the petitioner and shall accept payment from it,
21
Page 22 if offered.
5. The 1st Respondent-BMC is at liberty in take such action as
is permissible in as against the Petitioner-Society and the 4th
Respondent-builder for recovery of arrears of all other charges
which are alleged to be due.
6. The petitioner and/or the 4th Respondent to comply with the
requisitions made by the 1st Respondent-BMC, as specified in
the Permission Form date 22.06.1990.
7. In view of the above directions, nothing further needs to be
done in the matter which is allowed to be withdrawn and
dismissed as such with liberty aforesaid.”
(Reproduced from the paper book)
18. Thereafter, other housing societies filed Writ Petition Nos. 2402,
2403, 2904, 2949 of 1999 and 1808 of 2000 for grant of similar relief.
19.During the pendency of the writ petitions, Shri Jayant Tipnis
submitted application dated 22.2.2002 for regularization of the
unauthorized construction by stating that 9292.95 sq. fts. had been
consumed over and above the FSI granted for the project and this was
done without his knowledge. His proposal was rejected by the Deputy
Chief Engineer vide order dated 7.7.2003, which reads as under:
“Dy. Ch. E.B.P. (C)/1627/ Gen Ben
7.7.03
MUNICIPAL CORPORATION OF GREATER MUMBAI
No. EB/3342/GS/A
Shri Jayant C. Tipnis,
Architect,
Sadguru Darshan, 1050,
New Prabhadevi Road,
Mumbai-400 025.
22
Page 23 Sub:Proposed development of Plot No.9, Worli Scheme No.
53, CTS No.868, 1/868, Worli Division, B.G. Kher
Marg, Mumbai 400 018 Popularly known as Campa Cola
compound.
Ref: Your letter addressed to M.C. bearing No.BC-1414 (
:
'C)-
117 d ate d 02.06.2003
Sir,
By directions, this is to inform you that your request to exempt
the area of staircase, lift and lift lobby from F.S.I, computation
cannot be acceded to, since the same is not in conformity
with the provisions of D.C. Regn. 35 (2)(c). Further, proposal
under reference was decided by the Corporation prior to coming
into force of D.C. Regn. 1991 and C.C. for the entire work was
issued on 08.09.82. The permissible F.S.I, has already been ex-
hausted.
Yours faithfully,
Sd/-
Dy. Chief Engineer,
Building Proposals (City)”
20.Shri Jayant Tipnis challenged the aforesaid order by filing an
appeal under Section 47(1) of the 1966 Act and prayed that the
Corporation be directed to reconsider the proposal under Development
Control Regulations for Greater Mumbai, 1991 (for short, ‘the 1991
Regulations’) and regularize the FSI consumed in constructing the
buildings by charging premium. The Chief Minister of the State, who
was also in-charge of the Department of Urban Development, dismissed
the appeal vide order dated 4.6.2010, the relevant portions of which are
extracted below:
23
Page 24 “The statement of residential buildings approved by
MCGM on the above plot under reference along with
the progress of the work of the buildings constructed
is as under :-
Building
No.
Approval details as
plans dated 2.2.83
Present position
Building
No. 1
Basement + stilt + 5
upper floors
No work carried out
Building
No.2
Basement + Ground
Floor (pt.) + Stilt (pt.) +
5 upper floor
Basement + Stilt + 7
upper floors + 8
t h
upper floor (pt.)
Building
No.3
Basement + Stilt (pt.) +
Ground Floor (pt. ) + 5
upper floors
Basement + Stilt
(pt.) + Ground Floor
(pt. ) + 5 upper
floors + 6 upper
floor (pt.)
Building
No.4
Basement + Stilt (pt.) +
Ground Floor (pt. ) + 5
upper floors
Basement + Ground
Floor (pt.) + 6 upper
floors + 7 upper floor
(pt.)
Building
No.5
Stilt (pt) + Ground
Floor (pt. ) + 5 upper
floors
Stilt + 19 Upper floor
+ 20
t h
upper floor
(pt)
Building
No.6
Stilt (pt) + Ground Floor
(pt) + 5 upper floors
Ground Floor + 17
upper floors
Building
No.7A
Stilt + 5 upper floorsStilt + 5 upper floors
+ 6 upper floor (pt.)
Building
No.7B
Stilt + 5 upper floorsStilt + 6 upper floor
Building
No. 8
Stilt + 5 upper floorsWork not carried out
Accordingly, MCGM has initiated necessary action as per
the provisions of ... M.C. Act. 1888 / MRTP Act, against the
Builder / Developer and the same are ... vigorously followed
and occupation permission has not been granted to any of the
building in the Campa Cola Compound till date.
Architect Shri Jayant Tipnis vide his letter dated 7.6.2002
No. BC / C-92 addressed to the Ex. Eng. (B.P.) City has stated
that roughly 9292.95 sq.ft. of area has been consumer over and
24
Page 25 above the FSI granted to the said project and almost the area of
14148.22 sq.ft. has been consumed in the staircase lift and lift
lobby which if made available to the complex on payment of
premium, it is possible that the whole complex as is and as built
up could be regularized on the payment of concessional
penalty, as the builders who have developed this property are
not in developers and he can not be blamed and / or held re-
sponsible for the same. Balance FSI from their remaining part
shall not be utilized to regularize this unauthorized construc-
tions. The unauthorized construction carried out by the Devel-
oper is not as per the provisions of the Development Control
Regulations-1967. The MCGM has given the permission prior
to 1991. Therefore, Development Control Regulations, 1991
will not be applicable and accordingly, the unauthorized con-
struction cannot be regularized. Hence, appeal may be rejected.
In this matter, Hon’ble High Court passed an order dated
17.03.2010. In this order, Hon’ble High Court gave directives
to the Minister (UDD) to hear and dispose off the appeal under
Section 47 filed by the applicant within 12 weeks from the date
of the Order.
It is pertinent to note here that Appellant Architect Shri
Jayant Tipnis submitted the amended plans BC / 1414 C-95
dated 3.7.2002 by claiming the area of staircase, lift and lift
lobby area free of FSI as per the Clause 35 (2) of Development
Control Regulations 1991 to MCGM. However the said
plan was rejected by MCGM vide letter No. Dy. Ch. Engineer
(B.P.) City / 2186 / Gen. dated 6.8.2002 stating therein that the
amended plans submitted cannot be considered for approval as
the area of staircase lift, lift lobby can not be exempted on FSI
computation. Since the proposal under reference was approved
and CCl was also issued prior to DCR (1991) coming into force
i.e. 25.3.1991 and the same was already intimated to the appli-
cant vide MCGM’s letter dated 19.11.1994.
Considering the Hon’ble High Court’s order dated
17.03.2010 and the representation made by appellant, MCGM
& M/s Pure Drinks P. Ltd. and considering the plot under refer-
ence is situated in CRZ area, exemption under Section 35 (2)(c)
of the Development Control Regulations, 1991 for the area of
staircase, lift, lift lobby from floor space index computation
cannot be granted. Appeal is not maintainable. Since the land
belongs to MCGM, for the issues other than FSI appellant may
approach MCGM separately.”
25
Page 26 21.When the writ petitions filed by the housing societies and their
members for issue of direction to the Corporation to supply water to their
buildings were taken up for hearing, the Division Bench of the High
Court noted that even though the buildings were constructed in violation
of the sanctioned plan, the Corporation had not taken action against those
responsible for such construction and passed order dated 11.10.2005 for
appearance of Additional Commissioner of the Corporation. The relevant
portions of that order are extracted below:
“In the course of the argument, it was revealed by the Advocate
for the Corporation on taking instructions that original licence
for construction was granted in favour of four persons viz. Shri
Manjit Singh Madanjit Singh, Power of Attorney Holder of S.
Karanjit Singh, Chief Executive Officer of Pure Drink Pvt.Ltd.,
Shri Ishwarsingh Chawla of PSD Construction Pvt.Ltd., Shri
D.K.Gupta of D.Y. Builders Pvt.Ltd. and Abdula Yusuf Patel.
Pursuant to the illegality in construction having been found,
notices were issued under Section 53-1 of the M.R.T.P. Act on
20
th
February, 2002 to all the four persons mentioned above.
Thereafter, sanction was granted for prosecution of all the four
persons and decision in that regard was taken on 19
th
May, 2003
by the Executive Engineer (Building Proposal), CT/1 of the
Corporation. Meanwhile, the panchanama of the illegal
construction was carried out on 13
th
November, 2002. Besides,
the prosecution was launched against builder, developer and all
the occupants of the building and they were convicted on
admission of guilt and sentenced by way of imposition of fine
from Rs.600/- to Rs.2000/- imposed by the Magistrate. Apart
from the above actions, no other action has been taken by the
Corporation in relation to the illegal construction. The affidavit-
in-reply filed on behalf of the Corporation before issuance of
rule in the petition by Shri Kurmi Deonath Sitaram, Executive
Engineer, DP(City)(I) discloses that initial approval was
granted for six wings consisting of ground plus five upper
26
Page 27 floors and it was issued on 9
th
June, 1981 and Commencement
Certificate was granted on 10
th
June, 1981. The amendment
plans were approved for nine wings of ground plus five upper
floors on 2
nd
February, 1983. Thereafter, amendment plans
proposing stilt plus twenty-four floors and stilt plus sixteen
floors with additional sixth and seventh floor to building nos.2
and 4 and additional sixth floor for the part of building no.3
were submitted but they were refused on 6
th
September, 1984.
Inspite of that, the constructive activities continued and the
work beyond the approved plans was carried out, and therefore
Stop Work notice was issued under Section 353-A of the MMC
Act on 12
th
November, 1984. However, the work continued.
Again new architect submitted further plan with a fresh notice
under Section 337. The same was rejected by the Corporation.
The affidavit also discloses the various illegalities committed in
the course of construction of the buildings which include
construction of additional floors without approval, increase in
the height of the building and carrying of construction beyond
the permissible limits of FSI, apart from other illegalities. The
affidavit, however, does not disclose as to what action, if any,
for prohibiting the developer and the owner from proceeding
with the construction, was taken as wall as what action was
taken after illegal construction having been carried out, apart
from launching prosecution and issuance of notices. Even in the
course of the argument, learned Advocate appearing for the
Corporation could not satisfy us about any concrete action
having been taken by the Corporation for stoppage of illegal
construction or demolition of illegal construction. In fact, the
arguments in the matter were heard partly on 27
th
September
and again yesterday and as well as today. On the very first day
of the argument, it was orally informed by the learned Advocate
for the Corporation that he would ensure the presence of the
officer of the Corporation to assist him in order to enable him to
give correct detail information in the matter. Inspite the officer
being present, we are not able to get the detail information
regarding the action taken by the Corporation as also the detail
description of the illegalities committed by the builder and any
other persons on his behalf in the matter. It is to be noted that
undisputedly the records disclose some illegalities in the matter
of construction carried out since the year 1984 onwards. Inspite
of affidavit having been filed in the year 2000, the Corporation
has not explained the reason for failure on its part to take
appropriate action against the illegal construction and even
27
Page 28 today. Apart from being assisted by the officer of the
Corporation, the Advocate appearing for the Corporation is
unable to disclose the reason for the same. We find it necessary
to issue notice to the Additional Commissioner to appear in
person before us on Friday i.e. 14
th
October, 2005 at 11.00 a.m.
to explain the same alongwith all records in the matter, as it is
informed by the Advocate for the Corporation that
Commissioner is out of India.”
22.On the next date of hearing, the Commissioner of the Corporation
appeared before the High Court and gave an assurance that necessary
steps will be taken in accordance with law within a period of two months.
Thereafter, the Corporation issued notices dated 11.11.2005, 19.11.2005
and 5.12.2005 under Section 351 of the 1888 Act giving details of the
illegal structures proposed to be demolished. The housing societies
submitted their respective replies which were rejected by the Corporation
vide order dated 3/8.12.2005.
23.Faced with the threat of demolition of the buildings, the housing
societies and some of their members filed Long Cause Suits for quashing
the notices issued under Section 351 of the 1888 Act and order dated
3/8.12.2005. They pleaded that the buyers of the flats were not aware that
the buildings had been constructed in violation of the sanctioned plan.
They also filed applications for restraining the Corporation from
demolishing the illegal portions of the buildings. Initially, the trial Court
stayed the demolition of the illegal construction but, after hearing the
parties, the applications for temporary injunction were dismissed on the
28
Page 29 premise that the developers/builders had constructed a number of floors
without obtaining permission from the Planning Authority, that too,
despite the stop work notice issued under the 1888 Act and that the
application made for regularization of the illegal construction had been
rejected by the Corporation. The trial Court rejected the contention of the
members of the housing societies that they had purchased the flats
without knowing that the same were illegally constructed by the
developers/builders. The trial Court noted that the architect had
repeatedly told the developers/builders that construction of buildings
beyond the sanctioned plan was illegal and the members of the housing
societies were very much aware of this fact.
24.The appeals filed by the housing societies and their members were
dismissed by the learned Single Judge of the Bombay High Court, who
agreed with the trial Court that members of the housing societies were in
know of the fact that the flats occupied by them had been constructed in
violation of the sanctioned plan.
25.The housing societies and their members challenged the order of
the High Court in Special Leave Petition (C) Nos. 33471, 33601, 33940,
35402 and 35324 of 2011. After hearing the counsel for the parties at
length, this Court expressed the view that the special leave petitions are
liable to be dismissed. However, keeping in view the submission of the
29
Page 30 learned counsel that demolition of the illegal and unauthorized
construction would adversely affect the flat buyers and their families and
the writ petition filed by them for regularization of the disputed
construction was pending before the High Court, it was considered
appropriate to transfer the writ petition to this Court. Accordingly, order
dated 29.2.2012 was passed, paragraphs 16 to 19 of which are reproduced
below:
“16.In these cases, the trial Court and the High Court have,
after threadbare analysis of the pleadings of the parties and the
documents filed by them concurrently held that the buildings in
question were constructed in violation of the sanctioned plans
and that the flat buyers do not have the locus to complain
against the action taken by the Corporation under Section 351
of 1888 Act. Both, the trial Court and the High Court have
assigned detailed reasons for declining the petitioners’ prayer
for temporary injunction and we do not find any valid ground or
justification to take a different view in the matter.
17.The submission of Dr. Abhishek Manu Singhvi that the
constructed area should be measured with reference to the total
area of the plot cannot be accepted for the simple reason that
the State Government had sanctioned change of land use only
in respect of 13049.45 sq. meters.
18.In view of the above, we may have dismissed the special
leave petitions and allowed the Corporation to take action in
furtherance of notices dated 19.11.2005 and orders dated
3/8.12.2005, but keeping in view the fact that the flat buyers
and their families are residing in the buildings in question for
the last more than one decade, we feel that it will be in the
interest of justice that the issue relating to the petitioners’ plea
for regularization should be considered by this Court at the
earliest so that they may finally know their fate.
19.We, therefore, direct the petitioners to furnish the
particulars of the writ petitions filed for regularization of the
30
Page 31 construction which are pending before the High Court. The
needful be done within a period of two weeks from today.
Within this period of two weeks, the petitioners shall also
furnish the particulars and details of the developers from whom
the members of the societies had purchased the flats. List the
cases on 16
th
March, 2012 (Friday).”
26.In compliance of the direction issued by this Court, learned counsel
for the petitioners informed that Writ Petition Nos.6550/2010 filed for
regularization of the disputed construction is pending before the High
Court. They also furnished the particulars of the developers/builders from
whom members of the housing societies are said to have purchased the
flats. Thereafter, this Court suo motu ordered transfer of the writ petition
pending before the Bombay High Court and impleadment of the
developers/builders with a direction that notice be issued to them.
27.The record received from the Bombay High Court revealed that
Writ Petition No.6550/2010 was filed by Campa Cola Residents
Association, which is said to have been registered on 3.2.1992 and of
which the residents of the six housing societies are members, and its
Secretary - Shri Rohit Malhotra for quashing orders dated 7.7.2003
passed by the Deputy Chief Engineer and 4.6.2010 passed by the
Appellate Authority as also the notices issued under Section 351 of the
1888 Act with a further prayer for issue of a mandamus to the
Corporation to regularize the disputed constructions.
31
Page 32 28.The writ petitioners have pleaded that the flat buyers should not be
penalized for the illegalities committed by the lessee and
developers/builders in connivance with the officers of the Corporation.
According to the petitioners, the purchasers of the flat were not aware of
the fact that even though the Planning Authority had not sanctioned the
revised plans, the developers/builders constructed additional floors and
utilized the FSI far in excess of what is permitted by the 1888 Act and the
D.C. Rules.
29.The lessee and respondent No.4 have filed separate counter
affidavit. Their stand is that the purchasers of the flat cannot plead
innocent ignorance because they were very much aware of the fact that
the revised plans submitted by the developers/builders had not been
sanctioned by the Planning Authority and also that construction had been
made despite the stop work notice issued by the Corporation. It is also the
case of the lessee that while executing Assignment Agreement, it had
made it clear to the developers/builders that they must raise construction
strictly in consonance with the sanctioned plan. On its part, respondent
No.4 has pleaded that it had purchased the remaining portion of the plot
in question by paying a huge amount of Rs.30 crores and the petitioners
have nothing to do with that portion of the plot.
30.Shri Ravi Shankar Prasad, learned senior counsel appearing for the
32
Page 33 petitioners in the transferred case argued that the order passed by the
Deputy Chief Engineer and the Appellant Authority are liable to be
quashed because neither of them applied mind on the petitioners’ prayer
for regularization. Learned senior counsel laid considerable emphasis on
the fact that the members of the housing societies were not aware of the
illegal nature of construction made by the developers/builders and argued
that the innocent buyers should not be penalized for the misadventure of
the lessee and the developers/builders. Shri Prasad read out portions of
agreement dated 10.6.1981 executed between the lessee and the
developers/builders and sample of the agreement entered into between the
developers/builders and the flat buyers to show that the latter were not
apprised of the fact that some floors of the buildings were constructed in
violation of the sanctioned plan and submitted that the Corporation
cannot take advantage of its own wrong of not taking any action against
the lessee and the developers/builders, who are solely responsible for
constructing the buildings in violation of the sanctioned plans. He then
relied upon the 1991 Regulations and argued that the Corporation should
be directed to regularize the additional FSI by charging appropriate
penalty. Shri Prasad also referred to Circular No.CHE/2005/DP/GEN
dated 4.2.2011 issued by the Corporation for regularization of the illegal
construction by charging penalty and submitted that this Court may
exercise power under Article 142 of the Constitution for directing
33
Page 34 regularization of the disputed construction else the flat buyers will be
deprived of the only shelter available to them.
31.Dr. A. M. Singhvi, learned senior counsel appearing for some of
the housing societies and their members emphasized that the flat buyers
should not be made victim of the illegalities committed by the lessee in
collusion and connivance with the developers/builders. He argued that the
Corporation cannot take advantage of its own wrong, i.e., failure to take
prompt steps to stop the illegal construction. Learned senior counsel then
referred to the provisions of the Maharashtra Ownership Flats
(Regulation of the Promotion of Construction, Sale, Management and
Transfer) Act, 1963 (for short, ‘the 1963 Act’) and argued that the
developers/builders and promoters should be held liable for acting in
violation of the sanctioned plans but the disputed construction should be
regularized by invoking the provisions of the 1991 Regulations.
32.Learned Attorney General referred to Sections 44, 45, 47, 52 and
53 of the 1966 Act and argued that the extra floors constructed by the
developers/builders cannot be regularized because that would tantamount
to violation of the D.C. Rules. He further argued that the Deputy Chief
Engineer and the Appellate Authority did not commit any error by
refusing to entertain the prayer made by the architect of the lessee for
regularization of the buildings because the same fall within the CRZ area.
34
Page 35 He relied upon the judgment in Suresh Estates Private Limited v.
Municipal Corporation of Greater Mumbai (2007) 14 SCC 439 and
argued that the petitioners cannot rely upon the 1991 Regulations for
seeking regularization of the illegally constructed floors.
33.Shri C.U. Singh, learned senior counsel appearing for the lessee
and Shri Dave, learned senior counsel for respondent No.4 relied upon
the sanction accorded by the State Government vide order dated
31.12.1980 for change of land use subject to the condition of compliance
with relevant statutory provisions including the D.C. Rules and argued
that the appellants do not have the locus to challenge the action taken by
the Corporation for demolition of the illegal and unauthorized
construction or seek regularization thereof, more so, because even before
commencement of the construction, the flat buyers knew that the
Planning Authority had not sanctioned the revised plans submitted by the
developers/builders through their architect.
34.We have considered the respective arguments/submissions. The
first question which arises for consideration in the transferred case is
whether the writ petitioners are entitled to seek regularization of the
illegal and unauthorized construction made by the developers/builders.
At the cost of repetition, it will be apposite to note that the Deputy Chief
Engineer had rejected the request made by the architect for exemption of
35
Page 36 the area of staircase, lift and lift lobby from FSI by observing that the
same is not in conformity with Clause 35(2)(c) of the 1991 Regulations
because the Corporation had decided the proposal prior to coming into
force of those regulations and the permissible FSI had already been
exhausted. The Appellate Authority agreed with the Deputy Chief
Engineer that the 1991 Regulations cannot be invoked for regularization
of the disputed construction because the same were enforced much after
rejection of the amended plans and the plot in question is situated in CRZ
area.
35.In our view, the reasons assigned by the Deputy Chief Engineer
and the Appellate Authority are in consonance with the law laid down by
this Court in Suresh Estates Private Limited v. Municipal Corporation of
Greater Mumbai (supra). The facts of that case were that after purchasing
a plot measuring 8983 sq. mtrs. situated at Dr.Babasaheb Jaykar Marg,
appellant Nos. 1 and 2 submitted plans to develop the same by
constructing a luxury hotel in terms of the D.C. Rules. In the application,
the appellants mentioned that they are entitled to additional FSI as per
Rule 10(2) of the D.C Rules. The Corporation made a recommendation to
the State Government that in view of the CRZ notification and the D.C.
Rules, additional FSI be granted to the appellants. The Ministry of
Environment and Forest sent communication dated 18.8.2006 to the
Principal Secretary, Urban Development Department, Government of
36
Page 37 Maharashtra clarifying that the D.C. Rules, which existed on 19.2.1991
would apply to the areas falling within the CRZ notification and the word
‘existing’ means the rules which prevailed on 19.2.1991. It was also
mentioned that the draft regulations of 1989, which came into force on
20.2.1991 would not apply. At that stage, the appellants filed a writ
petition before the High Court with the complaint that the Corporation
had not communicated its decision within 60 days. The same was
disposed of by the High Court with a direction to the State Government to
decide the application of the appellants within six weeks. Before this
Court, it was argued on behalf of the Corporation that the D.C. Rules
would not apply to the development permission sought by the appellants
and the 1991 Regulations are applicable in the matter. According to the
Corporation, the 1991 Regulations do not provide for additional FSI for
the proposed hotel project. It was further argued that the restrictions
contained in the CRZ notification will be attracted because the plot is
situated in CRZ area. This Court noted that the 1991 Regulations were
notified on 20.2.1991 and came into force on 25.3.1991 whereas CRZ
notification was issued on 2.2.1991 and observed:
“The word “existing” as employed in the CRZ notification
means the town and country planning regulations in force as on
19-2-1991. If it had been the intention that the town and coun-
try planning regulations as in force on the date of the grant of
permission for building would apply to the building activity, it
would have been so specified. It is well to remember that CRZ
notification refers also to structures which were in existence on
37
Page 38 the date of the notification. What is stressed by the notification
is that irrespective of what local town and country planning reg-
ulations may provide in future the building activity permitted
under the notification shall be frozen to the laws and norms ex-
isting on the date of the notification.
On 2-2-1991 when the CRZ notification was issued, the only
building regulations that were existing in city of Mumbai, were
the DC Rules, 1967. In view of the contents of CRZ II notifica-
tion issued under the provisions of the Environment (Protec-
tion) Act which has the effect of prevailing over the provisions
of other Acts, the application submitted by the appellants to de-
velop the plot belonging to them would be governed by the pro-
visions of the DC Rules, 1967 and not by the draft development
regulations of 1989 which came into force on 20-2-1991 in the
form of the Development Control Regulations for Greater Bom-
bay, 1991.
The argument that in view of the provisions of Section 46 of the
Town Planning Act, 1966, the Planning Authority has to take
into consideration the draft regulations of 1989 and, therefore,
the appellants would not be entitled to additional FSI is devoid
of merits.
Section 3 of the Environment (Protection) Act, 1986 inter alia
provides that the provisions of the Act and any order or notific-
ation issued under the said Act will prevail over the provisions
of any other law.
The phrase “any other law” will also include the MRTP Act,
1966. As noticed earlier the Notification dated 19-2-1991 is-
sued under the provisions of the Environment (Protection) Act,
1986 freezes the building activity in an area falling within CRZ
II to the law which was prevalent and in force as on 19-2-1991.
The draft regulations of 1989 would therefore not apply as they
were not existing law in force and prevalent as on 19-2-1991.
In view of the peculiar circumstances obtaining in the instant
case, the Court is of the opinion that Section 46 of the MRTP
Act, 1966 would not apply to the facts of the instant case. Fur-
ther, when the sanctioned DC Regulations for Greater Bombay,
38
Page 39 1991 do not apply to areas covered within CRZ II, since those
Regulations came into force with effect from 25-3-1991, its
previous draft also cannot apply. The draft published is to be
taken into consideration so that the development plan is ad-
vanced and not thwarted. The draft development plan was cap-
able of being sanctioned, but when the final development plan
is not applicable, its draft would equally not apply as there is no
question of that plan being thwarted at all. As far as develop-
ment in the area covered by CRZ II is concerned, one will have
to proceed on the footing that the draft plan after CRZ notifica-
tion never existed. Even otherwise what is envisaged under
Section 46 of the MRTP Act is due regard to draft plan only if
there is no final plan. The DC Rules of 1967 were in existence
as on 19-2-1991 and therefore the plan prepared thereunder
would govern the case.
The draft regulations of 1989 were not in force as on 19-2-1991
and, therefore, would not apply to the plot in question. What is
emphasised in Section 46 of the MRTP Act, 1966 is that the
Planning Authority should have due regard to the draft rules
( sic regulations). The legislature has not used the phrase “must
have regard” or “shall have regard”. Municipal Corporation of
Greater Mumbai which is the Planning Authority had given due
regard to the draft DC Regulations of 1989 in the light of CRZ
notification and recommended to the Government to grant addi-
tional FSI of 3.73 times permissible as per the Development
Control Rules, 1967 over and above 1.33 permissible, to the ap-
pellants. Having regard to the facts of the case this Court is of
the opinion that the contention that the Planning Authority has
to take into consideration the draft regulations of 1989 and,
therefore, the appellants would not be entitled to additional FSI,
cannot be accepted and is hereby rejected.”
(Emphasis supplied)
36.In view of the aforesaid judgment of the three Judge Bench, it must
be held that the Appellate Authority had rightly declined to invoke the
1991 Regulations for entertaining the prayer made by the architect Shri
Jayant Tipnis for regularization of the constructions made in violation of
39
Page 40 the sanctioned plan.
37.The argument of Shri Prasad and Dr. Singhvi that the flat buyers
should not be penalized for the illegality committed by the lessee and the
developers/builders in raising construction in violation of the sanctioned
plan sounds attractive in the first blush but on a closer scrutiny, we do not
find any merit in the same. Admittedly, the flat buyers had entered into
agreements with the developers/builders much before commencement of
the construction. They were aware of the fact that the revised plans
submitted by the architect had not been approved by the Planning
Authority and the developers/builders had foretold them about the
consequence of rejection of the revised plans. Therefore, there is no
escape from the conclusion that the flat buyers had consciously occupied
the flats illegally constructed by the developers/builders. In this scenario,
the only remedy available to them is to sue the lessee and the
developer/builder for return of the money and/or for damages and they
cannot seek a direction for regularization of the illegal and unauthorized
construction made by the developers/builders.
38.We shall now notice the provisions of the 1966 Act. Section 44(1)
of that Act postulates making of an application to the Planning Authority
by any person intending to carry out any development on any land. Such
an application is required to be made in the prescribed form incorporating
40
Page 41 therein the relevant particulars and must be accompanied by such
documents, as may be prescribed. This requirement is not applicable if
the Central or State Government or local authority intends to carry out
any development on any land. Similarly, a person intending to execute a
Special Township Project on any land is not required to make an
application under Section 44(1). Instead, he has to make an application to
the State Government. Section 45 postulates grant or refusal of
permission. In terms of Section 45(1), the Planning Authority is
empowered to grant permission without any condition or with such
general or special conditions which may be imposed with the previous
approval of the State Government. It is also open to the Planning
Authority to refuse the permission. As per Section 45(2) the permission
granted under sub-section (1), with or without conditions, shall be
contained in a commencement certificate in the prescribed form. Section
45(3) mandates that the order passed by the Planning Authority granting
or refusing permission shall state the grounds for its decision. Section
45(5) contains a deeming provision and lays down that if the Planning
Authority does not communicate its decision within 60 days from the date
of receipt of application, or within 60 days from the date of receipt of
reply from the applicant in respect of any requisition made by the
Planning Authority, then such permission shall be deemed to have been
granted on the date immediately following the date of expiry of 60 days.
41
Page 42 However, the deemed permission is subject to the rider contained in the
first proviso to Section 45(5) that the development proposal is in
conformity with the relevant Development Control Regulations framed
under the 1966 Act or bye-laws or regulations framed in that behalf under
any law for the time being in force and the same is not violative of the
provisions of any draft or final plan or proposals published by means of
notice, submitted for sanction under the Act. The second proviso to this
sub-section lays down that any development carried out pursuant to such
deemed permission, which is in contravention of the provisions of the
first proviso, shall be deemed to be an unauthorized development for the
purposes of Sections 52 to 57. Section 52 prescribes the penalty for
unauthorized development or for use of land otherwise than in conformity
with development plan. Any person who commences, undertakes or
carries out development, or institutes or changes the use of any land
without obtaining the required permission or acts in violation of the
permission originally granted or duly modified is liable to be punished
with imprisonment for a term of at least one month, which may extend to
three years. He is also liable to pay fine of at least Rs.2,000/-, which may
extend to Rs.5,000/-. In case of continuing offence, an additional daily
fine of Rs.200/- is payable. Any person who continues to use or allows
the use of any land or building in contravention of the provisions of a
development plan without being allowed to do so under Section 45 or 47,
42
Page 43 or where the continuance of such use has been allowed under that section,
continues such use after expiry of the period for which the use has been
allowed, or in violation of the terms and conditions under which the
continuance of such use is allowed is liable to pay fine which may extend
to Rs.5,000/-. In the case of a continuing offence, further fine of Rs.100/-
per day can be imposed. Section 53 empowers the Planning Authority to
require the wrongdoer to remove unauthorized development. Of course,
this power can be exercised only after following the rules of natural
justice, as engrafted in sub-sections (1) and (2) of Section 53. By virtue of
Section 53(3), any person to whom notice under sub-section (2) has been
given can apply for permission under Section 44 for retention of any
building or works or for the continuance of any use of the land pending
final determination or withdrawal of the application. If the permission
applied for is granted, the notice issued under Section 53(2) stands
automatically withdrawn. If, however, the permission is not granted, the
notice becomes effective. If the person to whom notice under Section
53(2) is given or the application, if any, made by him is not entertained,
then the Planning Authority can prosecute the owner for not complying
with the notice. Likewise, if the notice requires the demolition or
alteration of any building or works or carrying out of any building or
other operation, then the Planning Authority is free to take steps for
demolition, etc., and recover the expenses incurred in this behalf from the
43
Page 44 owner as arrears of land revenue. Section 54 empowers the Planning
Authority to stop unauthorized development. Section 55 enables the
Planning Authority to remove or discontinue unauthorized temporary
development summarily. Section 56 empowers the Planning Authority to
take various steps in the interest of proper planning of particular areas
including the amenities contemplated by the development plan. These
steps include discontinuance of any use of land or alteration or removal of
any building or work.
39.An analysis of the above reproduced provisions makes it clear that
any person who undertakes or carries out development or changes the use
of land without permission of the Planning Authority is liable to be
punished with imprisonment. At the same time, the Planning Authority is
empowered to require the owner to restore the land to its original
condition as it existed before the development work was undertaken. The
scheme of these provisions do not mandate regularization of construction
made without obtaining the required permission or in violation thereof.
40.Circular dated 4.2.2011, on which reliance was placed by Shri
Prasad, cannot be invoked for entertaining the prayer for regularization.
That circular only contains the procedure for regularization of
unauthorized works/structures. It neither deals with the issues relating to
entitlement of the applicant to seek regularization nor lays down that the
44
Page 45 Planning Authority can regularize illegal construction even after
dismissal of the appeal filed under Section 47 of the 1966 Act. Therefore,
the procedure laid down in Circular dated 4.2.2011 is of no avail to the
flat buyers.
41.Though the argument of Dr. Singhvi that the developers / builders /
promoters are responsible for the illegal construction finds support from
the provisions of the 1963 Act, but that does not help the housing
societies and their members because there is no provision under that Act
for condonation of illegal/unauthorized construction by the
developers/builders and promoters or regularization of such construction.
Section 2(c) of that Act defines the term ‘promoter’ in the following
words:
“Section 2(c) “promoter” means a person and includes a
partnership firm or a body or association of persons, whether
registered or not who constructs or causes to be constructed a
block or building of flats, or apartments for the purpose of
selling some or all of them to other persons, or to a company,
co-operative society or other association of persons, and
includes his assignees; and where the person who builds and the
person who sells are different persons, the term includes both;”
Section 3 specifies general liabilities of the promoter. Sub-section (1)
thereof contains a non-obstante clause and declares that notwithstanding
anything in any other law, a promoter who intends to construct or
constructs a block or building of flats, all or some of which are to be
45
Page 46 taken or taken on ownership basis, shall in all transactions with persons
intending to take or taking one or more of such flats, be liable to give or
produce, or cause to be given or produced, the information and the
documents mentioned in the section. Section 3(2) lays down that a
promoter, who constructs or intends to construct such block or building of
flats, shall –
“(a) make full and true disclosure of the nature of his title to the
land on which the flats are constructed, or are to be constructed;
such title to the land as aforesaid having been duly certified by
an Attorney-at-law, or by an Advocate of not less than three
years standing, and having entered in the Property card or
extract of Village Forms V or VII and XII or any other relevant
revenue record;
(b) make full and true disclosure of all encumbrances on such
land, including any right, title, interest or claim of any party in
or over such land;
(c) give inspection on seven days’ notice or demand, of the
plans and specifications of the building built or to be built on
the land; such plans and specifications, having been approved
by the local authority which he is required so to do under any
law for the time being in force;
(d) disclose the nature of fixtures, fittings and amenities
(including the provision for one or more lifts) provided or to be
provided;
(e) disclose on reasonable notice or demand if the promoter is
himself the builder, the prescribed particulars as respect the
design and the materials to be used in the construction of the
building, and if the promoter is not himself the builder disclose,
on such notice or demand, all agreements (and where there is
no written agreement, the details of all agreements) entered into
by him with the architects and contractors regarding the design,
materials and construction of the buildings;
(f) specify in writing the date by which possession of the flat is
46
Page 47 to be handed over (and he shall hand over such possession
accordingly);
(g) prepare and maintain a list of flats with their numbers
already taken or agreed to be taken, and the names and
addresses of the parties and the price charged or agreed to be
charged therefor, and the terms and conditions if any on which
the flats are taken or agreed to be taken;
(h) state in writing, the precise nature of the organisation of
persons to be constituted and to which title is to be passed, and
the terms and conditions governing such organisation of
persons who have taken or are to take the flats;
(i) not allow persons to enter into possession until a completion
certificate where such certificate is required to be given under
any law, is duly given by the local authority (and no person
shall take possession of a flat until such completion certificate
has been duly given by the local authority);
(j) make a full and true disclosure of all outgoings (including
ground rent, if any, municipal or other local taxes, taxes on
income, water charges and electricity charges, revenue
assessment, interest on any mortgage or other encumbrances, if
any);
(k) make a full and true disclosure of such other information
and document; in such a manner as may be prescribed; and give
on demand true copies of such of the documents referred to in
any of the clauses of this sub-section as may be prescribed at a
reasonable charge therefor;
(l) display or keep all the documents, plans or specifications (or
copies thereof) referred to in clauses (a), (b) and (c), at the site
and permit inspection thereof to persons intending to take or
taking one or more flats;
(m) when the flats are advertised for sale, disclose inter alia in
the advertisement the following particulars, namely: -
(i) the extent of the carpet area of the flat including the
area of the balconies which should be shown separately;
(ii) the price of the flat including the proportionate price
of the common areas and facilities which should be
shown separately, to be paid by the purchaser of flat; and
47
Page 48 the intervals at which the installments thereof may be
paid;
(iii) the nature, extent and description of the common
areas and facilities; and
(iv) the nature, extent and description of limited common
areas and facilities, if any.
(n) sell flat on basis of carpet area only:
Provided that, the promoter may separately charge for the
common areas and facilities in proportion ‘to the carpet area of
the flat’.
Explanation – For the purposes of this clause, the carpet area of
the flat shall include the area of the balcony of such flat.”
Section 4(1) also contains a non-obstante clause and lays down that a
promoter who intends to construct or constructs a block or building of
flats shall, before accepting any money as advance payment or deposit,
which shall not be more than 20 per cent of the sale price, enter into a
written agreement for sale with the buyer. Section 4(1A) specifies the
particulars to be included in such agreement and the documents which
must form part of it. Section 4(2) casts a duty on the promoter to get the
agreement registered in accordance with the provisions of the
Registration Act, 1908. Section 7 contains a prohibition against
alterations or additions in the plans and specification without the consent
of the persons who have agreed to take the flats. The promoter is also
required to rectify the defects noticed within three years. Section 7(2)
casts a duty on the promoter to construct and complete the building in
48
Page 49 accordance with the plans and specifications. Section 13 postulates
punishment to any promoter who is found guilty of violating the
provisions contained in Sections 3, 4, 5 (except sub-section (2)) and 10
and 11.
42.Rule 3 of the Maharashtra Ownership Flats (Regulations of the
Promotion of Construction, etc.) Rules, 1964 lays down the manner of
making disclosure by the promoter to the flat buyers. Rule 5 specifies the
particulars to be incorporated in the agreement required to be entered into
between the promoter and the flat purchaser. Form V appended to the
rules contains the model form of agreement to be entered into between
promoter and flat purchaser.
43.The above noted provisions were interpreted by this Court in
Jayantilal Investments v. Madhuvihar Cooperative Housing Society
(2007) 9 SCC 220. After noticing the relevant statutory provisions the
two Judge Bench held:
“Reading the above provisions of MOFA, we are required to
balance the rights of the promoter to make alterations or
additions in the structure of the building in accordance with the
layout plan on the one hand vis-à-vis his obligations to form the
society and convey the right, title and interest in the property to
that society. The obligation of the promoter under MOFA to
make true and full disclosure to the flat takers remains
unfettered even after the inclusion of Section 7-A in MOFA.
That obligation remains unfettered even after the amendment
made in Section 7(1)(ii) of MOFA. That obligation is
strengthened by insertion of sub-section (1-A) in Section 4 of
49
Page 50 MOFA by Maharashtra Amendment Act 36 of 1986. Therefore,
every agreement between the promoter and the flat taker shall
comply with the prescribed Form V. It may be noted that, in
that prescribed form, there is an explanatory note which inter
alia states that clauses 3 and 4 shall be statutory and shall be
retained. It shows the intention of the legislature. Note 1
clarifies that a model form of agreement has been prescribed
which could be modified and adapted in each case depending
upon the facts and circumstances of each case but, in any event,
certain clauses including clauses 3 and 4 shall be treated as
statutory and mandatory and shall be retained in each and every
individual agreements between the promoter and the flat taker.
Clauses 3 and 4 of the Form V of the Maharashtra Ownership
Flats (Regulation of the Promotion of Construction, etc.) Rules,
1964 are quoted hereinbelow:
“3. The promoter hereby agrees to observe, perform and
comply with all the terms, conditions, stipulations and
restrictions, if any, which may have been imposed by the
local authority concerned at the time of sanctioning the
said plans or thereafter and shall, before handing over
possession of the flat to the flat purchaser, obtain from
the local authority concerned occupation and/or
completion certificates in respect of the flat.
4. The promoter hereby declares that the floor space
index available in respect of the said land is … square
metres only and that no part of the said floor space index
has been utilised by the promoter elsewhere for any
purpose whatsoever. In case the said floor space index
has been utilised by the promoter elsewhere, then the
promoter shall furnish to the flat purchaser all the
detailed particulars in respect of such utilisation of said
floor space index by him. In case while developing the
said land the promoter has utilised any floor space index
of any other land or property by way of floating floor
space index, then the particulars of such floor space
index shall be disclosed by the promoter to the flat
purchaser. The residual FAR (FSI) in the plot or the
layout not consumed will be available to the promoter till
the registration of the society. Whereas after the
registration of the society the residual FAR (FSI), shall
be available to the society.”
50
Page 51 The above clauses 3 and 4 are declared to be statutory and
mandatory by the legislature because the promoter is not only
obliged statutorily to give the particulars of the land, amenities,
facilities, etc., he is also obliged to make full and true
disclosure of the development potentiality of the plot which is
the subject-matter of the agreement. The promoter is not only
required to make disclosure concerning the inherent FSI, he is
also required at the stage of layout plan to declare whether the
plot in question in future is capable of being loaded with
additional FSI/floating FSI/TDR. In other words, at the time of
execution of the agreement with the flat takers the promoter is
obliged statutorily to place before the flat takers the entire
project/scheme, be it a one-building scheme or multiple number
of buildings scheme. Clause 4 shows the effect of the formation
of the Society.
In our view, the above condition of true and full disclosure
flows from the obligation of the promoter under MOFA vide
Sections 3 and 4 and Form V which prescribes the form of
agreement to the extent indicated above. This obligation
remains unfettered because the concept of developability has to
be harmoniously read with the concept of registration of society
and conveyance of title. Once the entire project is placed before
the flat takers at the time of the agreement, then the promoter is
not required to obtain prior consent of the flat takers as long as
the builder puts up additional construction in accordance with
the layout plan, building rules and Development Control
Regulations, etc.”
44.It is thus evident that the 1963 Act obligates the promoter to obtain
sanctions and approvals from the concerned authority and disclose the
same to the flat buyers. The Act also provides for imposition of penalty
on the promoters. However, the provisions contained therein do not
entitle the flat buyers to seek a mandamus for regularization of the
unauthorized/illegal construction.
51
Page 52 45.In view of the above discussion, we hold that the petitioners in the
transferred case have failed to make out a case for directing the
respondents to regularize the construction made in violation of the
sanctioned plan. Rather, the ratio of the above-noted judgments and, in
particular, Royal Paradise Hotel (P) Ltd. v. State of Haryana and Ors. (supra)
is clearly attracted in the present case. We would like to reiterate that no
authority administering municipal laws and other similar laws can
encourage violation of the sanctioned plan. The Courts are also expected
to refrain from exercising equitable jurisdiction for regularization of
illegal and unauthorized constructions else it would encourage violators
of the planning laws and destroy the very idea and concept of planned
development of urban as well as rural areas.
46.In the result, the appeals and the transferred case are dismissed and
it is declared that there is no impediment in the implementation of notices
issued by the Corporation under Section 351 of the 1888 Act and order
dated 3/8.12.2005 passed by the competent authority. The Corporation is
expected to take action in the matter at the earliest.
47.We also direct that the State Government and its
functionaries/officers as also the officers/employees of the Corporation
shall not put any hurdle or obstacle in the implementation of notices
issued under Section 351 of the 1888 Act.
52
Page 53 48.It is needless to say that the flat buyers shall be free to avail
appropriate remedy against the developers/builders.
.....…..…..……..…..………………..J.
[G.S. Singhvi]
.....…..…..……..…..………………..J.
[Sudhansu Jyoti Mukhopadhaya]
New Delhi,
February 27, 2013.
53
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