1

REPORTABLE

IN THE SUPREME COURT OF INDIA

ORIGINAL CIVIL JURISDICTION

TRANSFER PETITION (CIVIL) NO. 567 of 2017

JANHIT MANCH & ANR             ...PETITIONER(S)

VERSUS

STATE OF MAHARASHTRA & ORS.      ...RESPONDENT(S)

WITH

SPECIAL LEAVE PETITION(C) NOS. 11749­11750 of 2017

SHREE RAM URBAN  INFRASTRUCTURE LTD.        ...PETITIONER(S)

VERSUS

STATE OF MAHARASHTRA  & ORS.     ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

1. The Transfer Petition and the Special Leave

2

Petition arising out of similar facts and events

have been heard together and are being decided by

this common order. The background facts giving

rise to the transfer petition as well as Special

Leave Petition need to be noted first.

2. The parties in both the cases being common

shall be hereinafter referred to as described in

the transfer petition. Janhit Manch and another

which had filed the PIL at the Bombay High Court

are referred to as petitioners whereas, Shri Ram

Urban Infrastructure Ltd.(SRUIL) is referred to

as respondent No.6 and other respondents are

referred to as described in transfer petition.   

3. The genesis of dispute is PIL No. 43 of 2012

filed by petitioners in the Bombay High Court.

In PIL No.43 of 2012, petitioners have questioned

the action of respondent No. 3 in respect of

concessions granted for development of various

buildings in the city of Mumbai i.e. concessions

3

granted in respect of development of various

buildings which consequently enabled the

developers to amass additional areas under

various heads, such as refuge areas, passages,

flower beds, decks etc.,  free of Floor Space

Index (“FSI”).  The case of the respondent No.6

was specifically mentioned and challenged. It was

pleaded that respondent No.6 against the

permitted FSI  of  54715.196 sq. mtrs.  had used

additional FSI of approximately 6355.58 sq. mtrs.

under the guise of various heads such as refuge

areas, passages, decks etc.   

4. The Bombay High Court vide its judgment dated

13.05.2013 decided the PIL No.43 of 2012. In its

judgment, the High Court held that the refuge

areas granted to respondent No.6 with respect to

the said building was in utter excess of norms.

Thus, Municipal Commissioner was directed to

re­examine the issue of excess refuge area and to

4

re­issue the FSI. Petitioners filed SLP(C)

No.20279 of 2013, challenging the judgment of the

High Court dated 13.05.2013.

5. The respondent No.6 had proceeded to

construct a 56 storey building. Respondent No.6

also proposed to construct a public parking

lot(PPL) of three Basements + Lower ground +

Stilt + 15 Floors. Stop Work Notice was issued by

Mumbai Municipal Corporation on 14.12.2011 to

respondent No.6 to desist from continuing with

construction of public parking lot. The said Stop

Work Notice was challenged by respondent No.6 in

Bombay City Civil Court by L.C. Suit No.2942 of

2011. After judgment of the High Court dated

13.05.2013, the respondent No.6 approached the

Municipal Commissioner. The Municipal

Commissioner passed an order on 12.09.2013. The

Municipal Commissioner in his order observed that

(i) Refuge areas would be provided free of FSI

5

only to the extent of 4 per cent  of the built up

area it served in the said building; (ii) those

areas in excess of requirements would be counted

in FSI in accordance with National Building Code,

2005.  

7. Respondent No.6, aggrieved by the order dated

12.09.2013, filed a Writ Petition (c) No.2223 of

2013 before the Bombay High Court. The order of

Civil Court dated 16.05.2013 whereby Stop Work

Notice was set aside, was also challenged by

Municipal Corporation of Greater Bombay in the

High Court by filing a First Appeal No.884 of

2015.

8. The petitioners' SLP(C) No.20279 of 2013 was

finally heard, in which separate and dissenting

judgments were delivered on 25.04.2014, which

mandated the SLP to be referred to a larger

Bench. The petitioner had filed another PIL

No.133 of 2015, where certain amendments in DCR

6

were challenged. The Writ Petition filed by

respondent No.6 being Writ No.2223 of 2013 was

decided on 22nd,  25th  and 27th  January 2016

alongwith First Appeal No.884 of 2015.

9. Municipal Commissioner was directed to hear

the respondent No.6 and to decide what should be

the reasonable refuge area in the said building.

The order dated 12.09.2013 was confirmed in

parts. The SLP(C) No.20279 of 2013 was listed on

11.03.2016 on which date, the Three Judge Bench

disposed off the SLP holding that in view of

judgment of the High Court dated 22nd, 25th  and

27th, January 2016 no issue is alive, however, the

liberty was granted to make a mention for recall

of the order.

10. The judgment of Bombay High Court dated 22nd,

25th  and 27th  January, 2016 was challenged by the

respondent No.6 before this court in SLP(C)

No.10704­05 of 2016. This Court on 29.04.2016 has

7

issued a notice in SLP of respondent No.6,

however, no interim order was passed. The

petitioners also preferred the SLP(C) CC

Nos.13527­13528 of 2016, challenging the above

judgment of the Bombay High Court. Petitioners

also filed IA 6 of 2016 for recalling the Three

Judge Bench order dated 11.03.2016, contending

that several issues remain alive for

adjudication. After the order of Bombay High

Court dated 22nd, 25th  and 27th  January, 2016,

respondent No.3 passed an order on 31.08.2016.

Respondent No.3 inter alia held that:

“(a) The areas provided on the external peripheral face of the flat be allowed as refuge area;

(b) The refuge areas at the inside of the building at entrances of flats shall not be considered as refuge area;

(c) The four full floors shown as refuge will not be taken as refuge; and

(d) The structural columns falling in the above decided

8

refuge areas can be allowed free of FSI.”

11. The order dated 31.08.2016 passed by

respondent No.3 was challenged by the petitioners

by filing PIL No.17 of 2017. High Court vide its

order dated 24.02.2017 directed the respondent

No.2 to file its affidavit in reply within three

weeks and not to act upon the impugned order

dated 31.08.2016 till the next date.

Subsequently, matter was taken by the Bombay High

Court for hearing on 17.03.2017. After hearing

the counsel for both the parties, an order was

passed by the Bombay High Court on 17.03.2017.

Para No.4 to 7 of the order are to the following

effect:

“(4)Apparently, the subject matter of the present litigation is an order dated 31.08.2016 at “Exhibit C” (page 58) which is the order of the Municipal Commissioner of Greater Mumbai in pursuance of the directions of this Court dated 27.01.2016

9

in Writ Petition (c) No. 2223 of 2013.

(5) Challenging the orders in Writ Petition (c) No.2223 of 2013, both the parties i.e. the petitioners and respondent No. 6 have filed Special Leave Petitions. The petitioners before us have filed Special Leave Petition No.13527 of 2016, and respondent No.6 has filed Special Leave Petition Nos.10704 to 10705 of 2006. Admittedly no interim orders are issued in the above SLPs before the Apex Court. Meanwhile, in pursuance of the directions in Writ Petition (c) No.2223 of 2013, the Commissioner has passed an order dated 31.08.2016 which is the subject­matter of the present Public Interest Litigation. Since the larger issues are pending before the Apex Court pertaining to the very same alleged illegalities committed by respondent No.6 so far as the property in question, both the parties are in ad idem with the submission that the impugned order of the Commissioner dated 31.08.2016 also can be challenged before the Apex Court since that will put an end to the controversy between the parties once for all.

10

6. In that view of the matter, the parties are at liberty to approach the Apex Court with necessary application for transferring the present Public Interest Litigation also to be tagged alongwith the Special Leave Petitions pending before the Apex Court.

7. In order to enable the parties to take appropriate course of action as stated above, we continue the interim order dated 24.02.2017 for a period of four weeks.”

12. In view of the order of the Bombay High Court

dated 17.03.2017, the Transfer Petition has been

filed by the petitioners in this Court.  

13. SLP(C) Nos.11749­11750 of 2017 have been

filed by respondent No.6, questioning the interim

order passed by the Bombay High Court dated

24.02.2017 and 17.03.2017 in PIL No.17 of 2017.

 14. We have heard Shri Mukul Rohatgi, senior

counsel appearing for the petitioners and Shri

Kapil Sibal, senior counsel appearing for

11

respondent No.6. Shri Mukul Rohatgi contends that

the judgments of the Bombay High Court dated 22nd,

25th and 27th January 2016 have been challenged by

both petitioners as well as respondent No.6 by

filing different SLPs, which are pending for

consideration. Notice has also been issued by

this Court in SLP filed by respondent No.6 on

29.04.2016 and on 18.07.2016, SLP(C)

Nos.13527­13528 of 2016 filed by the petitioners

have been ordered to be tagged with the SLP(C)

Nos.10704­10705 of 2016. The subsequent order

passed by Municipal Commissioner dated 31.08.2016

has been passed, in consequence of the judgment

of the Bombay High Court dated 22nd, 25th and 27th

January 2016. The order passed by the High Court

being already under challenge, by both the

parties in this Court, subsequent order dated

31.08.2016 has also been challenged by

petitioners by filing PIL No.17 of 2017 wherein,

learned counsel for both the parties before the

12

Bombay High Court have stated that the issues,

which are raised in PIL No.17 of 2017 are the

issues, which are already engaging attention of

this Court in above mentioned two SLPs filed by

both the parties. The High Court, thus, after

further hearing the parties granted liberty to

the writ petitioner to file an application for

transfer of PIL No.17 of 2017 to be heard

alongwith pending SLP. It is submitted that all

the issues raised are issues of vital public

importance, concerning with safety and security

of persons who will occupy the concerned building

and it is necessary that issues are finally

decided by this Court so that correct and valid

measures are taken by respondent No.2 to

respondent No.5 regarding construction and use of

the building which will house hundreds of people.

15. Shri Kapil Sibal, Sr. Advocate,  vehemently,

opposing the transfer petition contends that

13

there is no ground to transfer the PIL No.17 of

2017 in this Court. Municipal Commissioner by an

order dated 31.08.2016 has decided all the issues

which have been questioned by the petitioners in

the High Court where all the issues can be gone

into and decided? In view of the subsequent order

of the Commissioner dated 31.08.2016, earlier

litigation including SLPs filed by both the

parties against the judgment of the High Court

dated 22nd, 25th and 27th January, 2016 ought not to

be required to be adjudicated on merits and it is

futile to transfer the PIL to this Court. It is

further contended that in none of the Writ

Petitions filed by the petitioners or the SLPs

any interim order has been passed either by the

Bombay High Court or by this Court and it is for

the first time that on 24.02.2017 interim order

has been passed by the High Court in PIL No.17 of

2017. It is contended that the building is

standing for last five years to be occupied by

14

the occupants who are waiting for occupying the

flats. Petitioners are under heavy recurring

liability by paying interest per month to the

extend of crores of rupees, which is causing

great hardship and prejudice to respondent No.6.

It is submitted that construction of the building

has been as per sanction plan and it is not the

case of anyone that there is any violation of

sanction plan. It is contended that the refuge

area is now earmarked adjoining each flats by

respondent No.6, which has been rightly accepted

by Municipal Commissioner and the four floors

which were separately earmarked as refuge area

has not been upheld. It is submitted that the PIL

initiated by the petitioners is not bona­fide

litigation  and in fact it has been  set up by

rival builders with whom respondent No.6 has

dispute. It is also submitted that transfer

petition deserved to be rejected and the SLP(C)

Nos.11749­11750 of 2017 be allowed, setting aside

15

the interim order passed by the High Court dated

24.02.2017 as extended on 17.03.2017 in PIL No.17

of 2017.

16. We have considered the submissions of both

the parties and perused the record. The order

passed by the Municipal Commissioner dated

12.09.2013, in pursuance of order passed by the

Bombay High Court on 13.05.2013 in PIL No.43 of

2012 was challenged by respondent No.6 in Writ

Petition(C) No.2223 of 2013 before the Bombay

High Court. The order of the High Court dated

13.05.2013 passed in PIL No.43 of 2013 was

already challenged by the Petitioners by SLP(C)

No.20279 of 2013. The Writ Petition(C) No.2223 of

2013 filed by respondent No.6 was decided by the

Bombay High Court on 27.01.2016, which was

challenged by both petitioners and respondent

No.6 by means of SLPs, as noted above. After the

order dated 27.01.2016, Municipal Commissioner

16

proceeded to pass an order dated 31.08.2016. The

Municipal Commissioner after re­examining the

issue regarding refuge area held, as follows:

“1. Periphery refuge area surrounding each flat on each floor(4 flats in number on each floor) was allowed.

[Note: The total refuge area allowed by the Commissioner surrounding the flats on each floor amounts to 60% of the habitable area on the respective floor]

2.4 entire refuge floors were to be blocked.

3. National Building Code 2005 would not apply since the building is already constructed as per past approved plans (contrary to the Judgment dated 27.01.2016).”

17. The order dated 31.08.2016 has been

challenged by petitioners by filing PIL No.17 of

2017 in which Bombay High Court passed an order

on 24.02.2017 and 17.03.2017, as noted above. The

order of Commissioner dated 31.08.2016 has been

17

passed in pursuance and consequence of the

judgment of the High Court dated 27.01.2016.

Judgment dated 27.01.2016 is now challenged in

this Court by SLP filed by both the parties. In

SLP filed by respondent No.6 notice has been

issued by this Court and the SLP filed by the

Petitioners has been tagged with other SLP.

18. The important issues, pertaining to refuge

area, FSI are engaging the attention of this

Court. Provisions of the Development Control

Regulations for  Greater Mumbai, 1991  are under

consideration. The developments carried out by

builders in buildings, which is to house hundreds

of people are not question of rights of

developers alone. The development regulations and

various other statutory rules enjoin performance

of various statutory duties and statutory

obligations in respect to development of

buildings, which are to house hundreds of

18

occupants. The life and safety of occupants is a

matter of public importance and the issues raised

relate to public concern & safety which need to

be decided at the earliest.

19. The concern expressed by Shri Kapil Sibal

that due to delay caused in finalizing the

issues, respondent No.6 has been suffering huge

loss, is also a matter of concern. Early decision

of such disputes is in the interest of both the

public in general as well as the persons who have

carried out development after incurring huge

expenditure.

20. It is relevant to note that the Bombay High

Court in Paras 4 to 7 of the Order dated

17.03.2017, noticing the facts that issues raised

in PIL No.17 of 2017 are already pending

consideration in this Court as mentioned in Para

5 has granted liberty to the petitioners to move

an application to file a transfer petition.

19

21. After having considered the submissions of

the parties and perusing the material brought

before us, we are of the opinion that issues

which have been raised in the SLP(C) CC

Nos.13527­13528 of 2016 filed by the petitioners

and SLP(C) Nos.10704­10705 of 2016 filed by

respondent No.6 have bearing on the PIL No.17 of

2017 and it is in the interest of all the parties

that such issues be decided finally, when the

issues have already been entertained by this

Court, as noted above.

22. Learned counsel for both the parties although

have raised various submissions touching on the

merits of issue but at this stage when we are

considering only the petition for transfer of PIL

No.17 of 2017 as well as the challenge to only

interim orders passed by Bombay High Court in PIL

No.17 of 2017, we refrain to express any opinion

on various aspects relating merits of the case.

20

The observations made by us in this order are

limited for deciding the transfer petition and

SLPs before us, such observations may not have

any bearing on the issues when they are finally

heard and decided.

23. It is further relevant to notice that the

SLP(C) No.20279 of 2013, which was filed by

petitioner against the order dated 13.05.2013 of

the Bombay High Court in PIL No.43 of 2012, which

was disposed of by Three Judge Bench on

13.05.2013, an application on I.A.6 has also been

filed by the petitioners to recall the order and

determine the issues. No order has yet been

passed in I.A.6 of 2016, which application  is

waiting for consideration by Three Judge Bench.

24. In view of forgoing discussion, SLP(C)

Nos.10704­10705 of 2016 filed against order dated

27.01.2016 being pending consideration, ends of

justice be served in allowing the transfer

21

petition transferring the PIL No.17 of 2017 from

Bombay High Court to this Court to be heard

alongwith SLP(C) Nos.10704­10705 of 2016 and

SLP(C) CC Nos. 13527­13528 of 2016. The transfer

petition is thus allowed.

25. Coming to SLP(C) Nos.11749­11750 of 2017, in

which interim order dated 24.02.2017 and

17.03.2017 have been passed by the Bombay High

Court, in view of the order passed in Transfer

Petition(C) No.567 of 2017, the PIL No.17 of 2017

is being transferred to this Court. As on the

date we do not see any good ground to set aside

the aforesaid interim orders, however, PIL No.17

of 2017 having been transferred to be heard by

this Court, it is open for the parties to pray

for alteration/modification/variation of the

aforesaid interim orders before this Court. The

SLP(C) Nos.11749­11750 of 2017 are dismissed

subject to above observations.

22

26. In result, Transfer Petition is allowed and

the SLPs are dismissed subject to observations as

made above.

........................J. (A. K. SIKRI )

........................J. (ASHOK BHUSHAN)

NEW DELHI; JULY 31, 2017.

23

ITEM NO.1501            COURT NO.7             SECTION XVI -A                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Transfer Petition(s)(Civil) No. 567/2017 JANHIT MANCH & ANR.                          Petitioner(s)

VERSUS STATE OF MAHARASHTRA & ORS.        Respondent(s) WITH SLP(C) Nos. 11749-11750/2017  (IA 1/2017 - FOR EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT)   Date : 31-07-2017  

These  matters  were  called  on  for  pronouncement  of judgment today. For Parties

Mr. R. P. Bhatt, Sr. Adv. Mr. S. Sukumaran, Adv. Mr. Anand Sukumaran, Adv. Mr. Bhupesh Kumar Pathak, Adv. Ms. Meera Mathur, AOR Ms. Garima Prashad, AOR M/s. Karanjawala & Co., AOR

                    Hon'ble  Mr.  Justice  Ashok  Bhushan  pronounced  the

judgment of the Bench comprising Hon'ble Mr. Justice A. K. Sikri and His Lordship.

The transfer petition is allowed and the special leave petitions  are  dismissed  in  terms  of  the  signed  reportable judgment.

(NIDHI AHUJA)                  (MALA KUMARI SHARMA) COURT MASTER  COURT MASTER

[Signed reportable judgment is placed on the file.]