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PETITIONER:

PRATIBHA CO-OPERATIVE HOUSING SOCIETY LTD.AND ANR.

Vs.

RESPONDENT:

STATE OF MAHARASHTRA AND ORS.

DATE OF JUDGMENT09/05/1991

BENCH:

KASLIWAL, N.M. (J)

BENCH:

KASLIWAL, N.M. (J)

PUNCHHI, M.M.

CITATION:

1991 AIR 1453 1991 SCR (2) 745

1991 SCC (3) 341 JT 1991 (2) 543

1991 SCALE (1)920

ACT:

Bombay Municipal Corporation Act-Housing Society-

Violation of building laws-Rule 51 violation-Demolition

ordered-Whether valid.

HEADNOTE:

The appellant Co-operative Housing Society Ltd. made

some unauthorised constructions in a 36 storeyed building.

The Bombay Municipal Corporation issued a show cause notice

calling upon the society to show cause as to why the upper

eight floors of the building should not be demolished so as

to limit the development to the permissible Floor Space

Index (F.S.I.) since the additional Floor Space Index to the

extent of 2773 sq. mts. was gained by the appellant. The

appellants submitted a reply to the show-cause notice. The

Administrator of the Municipal Corporation made an order on

21st Septmber, 1984 requiring the appellant to demolish

24,000 sq. ft. on the eight upper floors of the building on

the basis of 3000 sq. ft. on each floor. The Administrator

as well as the State Government dismissed the representation

and appeal by the appellant. So the appellant filed a writ

petition in the High Court which also dismissed with the

observation that the appellant be given a choice to reduce

the construction upto permissible limit by any alternative

proposal within the four corners of the rules and

regulations within one month from 28th October 1985 the

Municipality may consider.

The appellant made application to the Municipal

Corporation giving several alternative proposals on 21st

November 1985. But it also preferred a special leave

petition before this court against the High Court Judgment.

The special leave petition leave petition was dismissed on

January 17, 1986. The appellants alleged that they

submitted another proposal to the Municipal Corporation on

17th February, 1986 and a meeting for hearing alternative

proposals was fixed up by the Municipal commissioner and put

forward its case in support of the new proposals and the

Municipal Commissioner said he would consider the proposals

and take decision. On 27th December 1988 the appellant

wrote a letter to the Municipal Commissioner to consider the

alternative proposal i.e. of

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vertical demolition of the building instead of demolishing

the eight upper floors. In January, 1989 the officers of

the corporation agreed that demolition can be made

vertically so as to bring the entire construction within the

permissible Floor Space Index where as the work of

demolition of upper eight floors of the building were

entrusted to a company by the Municipal Commissioner. So

the appellant again filed a writ in the High Court. It was

dismissed by the Single Judge as well as by the Division

Bench dated 5th March, 1990.

The appellants came by Special Leave Petition in this

Court; The main grievance of the appellant being that

vertical demolition proposal was not considered. Inspite of

orders of this Court in this regard to the Municipal

Corporation no agreeable solution could fructify. The

proposal was examined by the Municipal Commissioner but

rejected on 13th November, 1990 and submitted the detailed

report to this Court.

Dismissing the petition the Court

HELD: The appellant had made illegal constructions in

violation of Floor Space Index to the extent of more than

24000 sq. ft. The decision taken by the Municipal

Commissioner does not suffer from any want of jurisdiction

nor is violative of any law or rules. It is well settled

that the High Court under Article 226 of the Constitution is

not an appellate Court on the administrative decision taken

by the authorities. Since the tendency of raising unlawful

constructions and unauthorised encroachments is increasing

in the entire country and such activities are required to be

dealt with by firm hands. Such unlawful constructions are

against public interest and hazardous to the safety of

occupiers and residents of the multistoreyed buildings.

[749F, 750B, E-F]

This case should be a pointer to all the builders that

making of unauthorised construction never pays and is

against the interest of the society at large. The rules,

regulations and by laws are made by the corporations or

development authorities taking in view the larger public

interest of the society and it is the bounden duty of the

citizens of obey and follow such rules which are made for

their own benefits. [750H-715B]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Special Leave Petition

(Civil) No. 5383 of 1990.

From the Judgment and Order dated 9.3.1990 of the

Bombay High Court in Appeal No. 231 of 1990 in W.P. No. 3016

of 1989.

747

K.K. Venugopal, G.L. Sanghi, Sudhir Shah and P.N. Misra

for the Petitioners.

K.K. Singhavi, N.B. Shetye, D.N. Mishra and A.S. Bhasme

for the Respondents.

The Judgment of the Court was delivered by

KASLIWAL, J. This petition under Article 136 the

Constitution of India is directed against the order of

Bombay High Court dated 9th March, 1990.

Facts necessary and shorn of details are given as

under. Pratibha Cooperative Housing Society Ltd.

(hereinafter referred to as `the Housing Society') made some

unauthorised constructions in a 36 storeyed building in a

posh and important locality of the city of Bombay. The

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Bombay Municipal Corporation issued a showcause notice dated

7th August, 1984 calling upon the Housing Society to

showcause within 7 days as to why the upper right floors of

the building should not be demolished so as to limit the

development to the permissible Floor Space Index (F.S.I.).

In the notice it was gained by the Housing Society and that

the construction work had already reached 36 floors and that

on the basis of the actual area of the building, the upper

eight floors were beyond the permissible F.S.I. limit and as

such were required to be removed. The Housing Society

submitted a reply to the showcause notice by their letter

13th August, 1984. The Administrator of the Bombay

Municipal Corporation made an order on 21st September, 1984

requiring the Housing Society to demolish 24,000 sq. ft. on

the eight upper floors of the building on the basis of 3000

Sq. ft. on each floor. The Housing Society made a

representation but the same was dismissed by the

Administrator by order dated 31st October, 1984. An appeal

submitted by the Housing Society was also dismissed by the

State Government on 7th October, 1985. The Housing Society

then filed a writ petition No. 4500 of 1985 in the High

Court. A Division Bench of the High Court dismissed the

writ petition on 28th October, 1985. However, the High Court

while dismissing the writ petition also observed as under:

"It would, however, be fair and just in the

circumstances of the case to give a choice to the

society to reduce the construction up to

permissible limit or whatever other method they can

think of. It is of course for the society to come

748

forward with a proposal in that behalf. We

therefore direct that in case the society comes

with any such alternative proposal within the four

corners of the rules and regulations within one

month from today the Municipality may consider."

The case of the Housing Society is that in pursuance to the

said order it submitted application to the Municipal

Corporation giving several alternative proposals on 21st

November, 1985. It may be noted at this stage that the

Housing Society had preferred a special leave petition No.

17351 of 1985 before this Court against the judgment of the

High Court dated 28th October, 1985 and the said special

leave petition was dismissed by this Court on 17th january,

1986. Further allegation of the Housing Society was that it

submitted another proposal to the Municipal Corporation on

17th February, 1986 and thereafter wrote to the Municipal

Council on 14th August, 1986 to consider their alternative

proposals. A similar letter was also written to the Chief

Minister of Maharashtra. On 29th August, 1986 the Municipal

Commissioner fixed up a meeting for hearing the alternative

proposals of the Housing Society. It has been alleged that

in the said meeting the Housing Society had put forward its

case in support of the new proposals and the Municipal

commissioner had thereafter informed the Housing Society

that he would consider the said proposals and take decision.

However, no decision was taken till the filing of the

present special leave petition before this Court. it has

been further alleged that on 27th December, 1988 the Housing

Society wrote a letter to the Municipal Commissioner to

consider the alternative proposals mainly of vertical

demolition of the building instead of demolishing the eight

upper floors. It had been alleged that a meeting took place

between the architects of the Housing Society as well as the

officers of the Municipal Corporation in January, 1989

wherein the officers of the Corporation agreed that instead

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of demolishing eight upper floors, demolition can be made

vertically so as to bring the entire construction within the

permissible F.S.I. It has been further alleged that

immediately thereafter the Housing Society was informed that

henceforth it should contact the Municipal Commissioner

directly and not any officers of the Corporation. It has

been further alleged that the Corporation without

considering the proposals of the Housing Society entrusted

the work of demolition of the upper eight floors of the

building to a company. In these circumstances the Housing

Society filed writ petition No. 3016 of 1989 in the High

Court. Learned Single Judge dismissed the writ petition by

order dated 19th December, 1989 and the appeal preferred

against the said order was dismissed by the Division Bench

of the High

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Court by order dated 9th March, 1990.

In view of the fact that the main grievance of the

Housing Society was that its alternative proposal of

demolishing the building vertically instead of eight upper

floors was not considered on merits by the Corporation, a

serious effort was made by this Court to get the feasibility

of such proposal examined by the Corporation. Orders in

this regard were passed by this Court on several occasions

but ultimately no agreeable solution could fructify. The

proposal was got examined at the highest level by the

Municipal Corporation and ultimately the Commissioner

rejected the proposal on 13th November, 1990 and submitted a

detailed report in writing for the perusal of this Court.

In the above report it has been stated that in pursuance to

the order of this Court dated 22nd October, 1990, the

proposals submitted by the Housing Society on 27th October,

1990 and 29th October, 1990 in supersession of all

alternative proposals, to demolish vertically one bedroom

and servant quarters on all the floors to bring the building

in tune with the F.S.I. was considered but on the grounds

stated in the report the proposal submitted by the Housing

Society cannot be approved.

In the circumstances mentioned above on the request of

learned counsel for both the parties to decide the case on

merits, we heard the arguments in detail on 23.4.1991.

Thereafter, in order to clarify some points we directed the

Chief Engineer cum Architect and the Municipal Commissioner

to remain present on the next date namely, 1.5.1991 and to

keep the record of the case also ready for our perusal.

We have heard learned counsel for the parties at great

length and have thoroughly perused the record. It may be

noted that the Housing Society had made illegal

constructions in violation of F.S.I. to the extent of more

than 24,000 sq. ft. and as such an order for demolition or

eight floors was passed by the Administrator, Municipal

Council as back as 21st September, 1984. The writ petition

filed against the said order was dismissed by the High Court

on 28th October, 1985 and special leave petition against the

said order of the High Court was also dismissed by this

Court. The High Court in its order dated 28th October,

1985 had granted an indulgence to the Housing Society for

submitting an alternative proposal within the four corners

of the rules and regulations within one month and the

municipality to consider the same. The proposal was

submitted on 21st November, 1985 but in the said proposal

there was no mention of any vertical demolition of the

building. The proposal with regard to the demolition

vertically of one

750

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bedroom and servant quarters on all the floors was submitted

for the first time on 27th December, 1988. During the

pendency of the special leave petition before this Court,

this proposal was got examined by the Municipal corporation.

The Municipal commissioner submitted a report on 13th

November, 1990 giving detailed reasons for rejecting such

proposal. It is well settled that the High Court under

Article 226 of the Constitution is not an Appellate Court on

the administrative decisions taken by the authorities. It

cannot be said that the decision taken by the Municipal

Commissioner suffers from any want of jurisdiction or is

violative of any law or rules. The proposal submitted by

the Housing Society was got examined by the architects and

engineers and thereafter the order was passed by the

Municipal Commissioner. It cannot be said that the action

of the Municipal Corporation is tainted with mala fides. It

was submitted by the learned counsel for the Corporation

that the Corporation has entrusted the matter for

investigation by the CBI and suitable action is being

processed against the guilty officers of the Corporation

with whose connivance these illegal constructions were made

by the Housing Society.

It is an admitted position that six floors have been

completely demolished and a part of seventh floor has also

been demolished. It was pointed out by Mr. K.K. Sighvi,

learned counsel for the Corporation that the tendency of

raising unlawful constructions by the builders in violation

of the rules and regulations of the Corporation was rampant

in the city of Bombay and the Municipal Corporation with its

limited sources was finding it difficult to curb such

activities. We are also of the view that the tendency of

raising unlawful constructions and unauthorised

encroachments is increasing in the entire country and such

activities are required to be dealt with by firm hands.

Such unlawful constructions are against public interest and

hazardous to the safety of occupiers and residents of

multistoreyed buildings. The violation of F.S.I. in the

present case was not a minor one but was to an extent of

more than 24,000 sq. ft. Such unlawful construction was made

by the Housing Society in clear and flagrant violation and

disregard of F.S.I. and the order for demolition of eight

floors had attained finality right upto this Court. The

order for demolition of eight floors has been substantially

carried out and we find no justification to interfere in the

order passed by the High Court as well as in the order

passed by the Municipal Commissioner dated 13th November,

1990.

In the result we find no force in the petition and the

same is dismissed with no order as to costs. Before parting

with the case we would like to observe that this case should

be a pointer to all the

751

builders that making of unauthorised constructions never

pays and is against the interest of the society at large.

The rules, regulations and bylaws and made by the

Corporations or development authorities taking in view the

larger public interest of the society and it is the bounden

duty of the Citizens to obey and follow such rules which are

made for their own benefits.

S.B. Petition dismissed.

752