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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL/APPELLATE JURISDICTION

CIVIL APPEAL NOS 8265­8266 OF 2019 [Arising out of SLP [C] Nos.10704­05 of 2016]

SHREE RAM URBAN  INFRASTRUCTURE LTD. & ANR.     … APPELLANTS

VERSUS

STATE OF MAHARASHTRA & ORS. … RESPONDENTS  

WITH

CIVIL APPEAL NOS. 8267­8272 OF 2019 [@ S.L.P. [C] .….CC Nos.13527­13528 OF 2016]

TRANSFER CASE [C] NO.271 OF 2017

AND

TRANSFER CASE [C] NO.6 OF 2018

J U D G M E N T

ARUN MISHRA, J.

1. Shree Ram Urban Infrastructure Ltd. has filed the appeals

challenging the judgment and order dated 22/25/27.1.2016 passed by

the Division Bench of the High Court of Bombay in W.P. [C] No.2223 of

2013 and First Appeal No.884/2015. Janhit Manch has also filed an

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appeal. It has also filed two Public Interest Litigations (PILs.) in the High

Court, which have been transferred to this Court and registered as T.C.

(C) No.271/2017 and T.C. [C] No. 6/2018, challenging the order dated

31.8.2016 (in T.C. (C) No.271/2017) passed by the Municipal

Corporation of  Greater Mumbai  (MCGM), (for short  ‘the Corporation')

and order dated  10.11.2016 in (T.C. (C)  No.6/2018) passed  by the

Additional  Municipal  Commissioner and also order  dated  30.1.2017

and 14.3.2017 passed by the Corporation.

2. The matter relates to the building at Plot No. 5B+6, admeasuring

28,409.50 sq.mt. Shree Ram Urban Infrastructure Ltd. applied for grant

of permission to construct and build on the said plots. The

commencement certificate was granted by Planning Authority on

24.2.2005, under the provisions of the Maharashtra Regional and Town

Planning Act, 1966 (for short, "the MRTP Act") read with Development

Control Regulations for Greater Bombay, 1991 (for short "DCR"). The

modification in the building plan was made on 8.2.2011 under which

the Corporation approved construction of a residential building for two

basements, ground, entrance level, eight parking levels, amenity levels,

service floor, and other areas plus 13th to 54th floors having a height of

294.84 meters.  

3. After the issuance of commencement certificate dated 24.2.2005

amendment was made in the DCR by incorporating clause 24 in

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Regulation 33,  w.e.f.  20.10.2008. The amendment provided that with

the previous approval  of the Government, the development of  multi­

storeyed parking lots abutting the roads to be permitted. On parking

area being constructed and handed over to the Corporation, free of cost,

FSI, as specified therein, shall be allowed on the land belonging to the

private owners,  which is  not  reserved  for any public  purpose.  Shree

Ram Urban Infrastructure Ltd. (for short, ‘SRUIL') applied for the

construction of public parking lot (PPL). The plans were approved for

the construction of three basements, ground floor, and 15 upper floors.

The commencement certificate was accordingly endorsed up to the

plinth level of the PPL, including three basements.

4. SRUIL  has completed the construction  of the  main residential

building of 56 floors. Though the Corporation had issued the

commencement certificate up to the 43rd floor, 13 upper floors up to 56

have been constructed by SRUIL. The PPL has been constructed

entirely. Though the commencement certificate granted by the

Corporation is up to the plinth level, including the basements, so far as

commencement certificate for the upper floors of the PPL is concerned,

SRUIL has relied upon deemed permission.

5. On 7.5.2011, SRUIL wrote a letter to the Municipal Corporation

for seeking commencement certificate for construction above the plinth

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level  of the  PPL  under  Regulation  6(4) of the  DCR. In  clause  24 of

regulation 33, there was no upper limit for seeking incentive FSI.

6. The Corporation issued a circular on 22.6.2011, which restricted

PPL to two basements, ground, and four upper floors. The premium was

also enhanced. A stop­work notice was issued on 16.7.2011 in respect

of the construction by the Corporation under section 354 of the

Mumbai Municipal Corporation Act, 1888 ("MMC Act"). The said notice

was withdrawn on 11.11.2011.

7. On 29.11.2011, the Corporation issued a notice under section 51

of the  MRTP Act calling  upon SRUIL to show cause  as to  why the

commencement certificate concerning PPL may not be revoked, this was

followed by a notice under section 354A of the MMC Act calling upon

SRUIL to  stop the work of  PPL beyond plinth  level  as there was no

commencement certificate issued above the plinth level. SRUIL filed a

representation. After that, they filed Civil Suit No.2942 of 2011 in City

Civil Court at Mumbai, wherein the challenge was confined to the stop­

work notice dated 14.12.2011. The interim injunction was granted

restraining the Corporation from taking any action based on the said

notice. The order remained operative till the disposal of the said suit.

Under the deemed permission, upper floors above the plinth level of the

PPL have been constructed by SRUIL.

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8. On 16.5.2013, the city civil court decreed Civil Suit No.2942/2011

by holding that the stop­work notice dated 14.12.2011 was illegal. It

was found by the civil court that further commencement certificate to

construct the 15 floors above the plinth of the PPL shall be deemed to

have been granted in terms of Regulation 6(4) of DCR. Therefore, the

stop­work notice was declared illegal against which the first appeal was

filed. The same has been decided by the impugned judgment and order

passed by the High Court at Mumbai.  

9. PIL No. 43 of 2012 was filed by Janhit Manch, challenging the

construction of PPL above the plinth level. There was also a challenge to

the construction of the residential building. It was decided on

13.5.2013 by the High Court. The directions were issued to Corporation

to decide as to PPL given findings recorded. Special leave petition was

filed in this  Court  by  Janhit  Manch, challenging the judgment  and

order mentioned above.

10. In P.I.L. No.43 of 2012, a direction was issued to the Corporation

to pass an  order on various  aspects after  hearing the  parties. The

Municipal Commissioner has passed an order dated 12.9.2013, which

was impugned in the High Court by SRUIL and a prayer was made for

quashing and setting aside the order dated 12.9.2013 passed by the

Commissioner of the corporation. A prayer was also made for issuing

mandamus enjoining upon the Corporation to take over possession of

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the PPL consisting of basement, ground plus 15 upper floors and

forthwith endorse the said commencement certificate for residential

building  up to the full  height of 56 floors.  Unless incentive  FSI in

respect of the PPL is made available, 13 upper floors of the main

building would be illegal as the FSI of PPL was to be used for the upper

13 floors.

11. In the writ  petition,  which was  filed by the Janhit Manch, PIL

No.43/2012,  it  was contended that permission granted to erect  floor

Nos.44 to 56 of the residential building was dependent upon the

availability of the incentive FSI on account of PPL. SRUIL illegally

erected all floors above the 43rd floor. Secondly, the construction of PPL

consisting of basements plus ground plus 15 floors was illegal as there

was no commencement certificate issued to proceed with the

construction above  the plinth level.  Next, it  was contended that the

refuge area in the residential building, which is free of FSI, is excessive,

and such excessive refuge area could not have been permitted, which

constitutes to the extent of 72% of the total habitable built­up area of

the residential building. SRUIL were not entitled to FSI on account of

the setback area of 705.45 sq.m. as they had already received

compensation for the said area. The question as to the height of the

habitable floors about the consumption of FSI was also raised. Besides,

it was contended that the passage at manor level and entrance,

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swimming pool, area over deck, and refuge area of the residential

building ought to  have  been computed  in the  FSI  of the  residential

building. The height of the service floor of the building is 8.40 meters;

the height above 4.5 meters could not have been granted free of FSI.

FSI relating to service  floors,  amenity  floor,  and FSI of  duplex floors

ought to have been counted. Besides, FSI about service toilets,

structural columns, toilets at the duplex level, and the floor bed ought

to have been counted.

12. The High Court in PIL No. 43 of 2012 held that construction of

PPL could not be held as illegal, SRUIL cannot be deprived of claiming

incentive FSI for the residential building. Other aspects to be

considered by the Commissioner/Corporation at the time of issuance of

an occupation certificate. The FSI granted in respect of the refuge area

is excessive, so the Commissioner was directed to re­examine the issue

and re­work the FSI accordingly and whether FSI could be claimed in

lieu of the setback area. The Commissioner was directed to reconsider

FSI  granted at  manor  level,  swimming pool, the area over  deck and

refuge area at entrance level, FSI concerning structural columns along

with refuge area, etc. The decision of the Commissioner to permit the

height of service floors at 8.40 meters was upheld.  SRUIL to be heard

before the Commissioner takes a final decision.

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13. After that,  parties  were  heard  by  the Municipal  Commissioner,

and an order was passed on 12.9.2013. The Commissioner has held

that PPL shall be as per the MCGM Circular dated 22.6.2011 and State

Government directives dated 19.3.2012 issued under section 37(1) of

the MRTP Act, the Municipal Commissioner observed:

“(i)  As  regards the Public  Parking Lot (PPL), it shall  be  as per the MCGM Circular dated 22.06.2011 and as per State Govt. directives dated 19.03.2012 issued under section 37(1) of MRTP Act, which is in accordance with the law.  Hence, MCGM will accept PPL comprising of 3 basements + Ground + 4 upper floors, which only will be eligible for grant of incentive FSI towards the construction of PPL, on payment of requisite premium as per policy.

(ii) Refuge areas shall be provided free of FSI only to the extent of 4% of the built­up area it serves.  Refuge areas in excess of the aforesaid requirements shall be counted in FSI in accordance with clause 4.12.3 of National Building Code.  

(iii) There is no provision in the DCR for the exclusion of the structural columns from FSI computations.  Hence, the structural columns need to be counted in FSI.  

(iv) As regards the set  back area admeasuring 705.45 sq.mt.,  FSI advantage in lieu of handing over of the same cannot be granted at this stage, in absence of conclusive documentary evidence.

(v)   The passages at manor level and entrances, swimming pool, area over deck, and refuge area at the entrance level, which were earlier permitted free of FSI, shall be counted in FSI in accordance with law.

(vi)  The request of SRUIL to pay the security deposit under DCR 5(3) (xi) and to levy the premium as per section 22(m) of MRTP Act, 1966, is rejected.

(vii)  Since there are many interlinked revised FSI computations as aforesaid, the Project Proponent (SRUIL) is directed to submit modified plans in accordance with the regulations.”

14. The High Court in the impugned judgment and order has quashed

and set aside the  judgment and decree passed by the civil  court on

16.5.2013, and the suit has been dismissed. In the writ petition, the

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order of the Commissioner dated 12.9.2013 as far as clauses (v), (vi)

and (vii) of the directions are concerned, has been confirmed. The

direction contained in clause (ii) has been set aside. The direction in

clause (iii) of the Commissioner's order dated 12.9.2013 has been set

aside. The Commissioner has been directed to consider,  exclusion of

structural columns from the computation of FSI and the issue of refuge

area. Clause (iv) of the Commissioner's order has been set aside,

holding that there was no reason to disturb the grant of FSI of the set­

back area admeasuring 705.45 sq.m. Clause (i) of the  Commissioner's

order dated 12.9.2013 has become inoperative because of the findings

recorded by the High Court while deciding the first appeal. The

Corporation has been directed to hear the parties and to decide as to

the reasonable refuge area considering various factors in light of the

observations and the discussion made in the judgment and order. The

Commissioner was directed to pass the order within four months.

15. The High Court held that the construction of the PPL above the

plinth level and the construction of the floors above the 43rd  floor of the

main  building is illegal as the same  has  been constructed  without

obtaining the commencement certificate(s). SRUIL may apply for

regularisation of the construction made of the PPL above the plinth and

the construction of the upper floors of the main building. A fresh

proposal  for grant of  commencement certificate and the development

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permission shall be submitted. In case no regularisation is made by the

Corporation, steps shall be taken for demolition after the expiry of the

period of 8 months. SRUIL to submit a modified plan to the

Commissioner of Corporation while applying for regularisation. After an

appropriate order is passed, SRUIL to apply for a grant of occupation

certificate in respect of the residential building up to the 43rd floor.

16. According to the direction issued by the High Court, the

Commissioner on  31.8.2016 concerning refuge  area  has  passed the

following order:

“ORDER

“(1)  The  area  provided  on  the external  peripheral face  of the  flat, which are marked hatched on the accompanying plan, shall be allowed as refuge area.  This order should be mentioned  in all  Sale  Deeds and/or in Supplementary Sale Deeds to ensure that it is not sold as a habitable area.   Further, the building would prominently display the access route to these refuge areas.   These refuge areas will be kept open and accessible to all Occupants of the Building at all times.

(2) The refuge areas at the inside of the building at the entrance of flats shall not be considered as refuge areas.  

(3) The four full floors shown as refuge will not be taken as refuge.

(4) The structural columns falling in the refuge areas stated in Point (1) above can be allowed free of FSI.   Areas of remaining structural columns shall be counted in FSI.

     (Ajoy Mehta) Date : 31 August, 2016                      Municipal Commissioner”

17. The Corporation has also passed order dated 10.11.2016 in which

it has held that under section 51 of the MRTP Act, the Planning

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Authority can revoke or modify the permission provided that the

construction of  PPL has not  sufficiently  progressed or  completed. In

PPL, the total construction cost incurred is about Rs.165 crores, out of

which Rs.70.28 crores were incurred on the construction of PPL up to

plinth. The construction has proceeded substantially as on the date of

the notice under section 51. There was no stay to the  interim order

dated 24.12.2011 of the city civil  Court.  A subsequent Circular and

Notification cannot be given retrospective effect, and the prevailing

regulations  on the  date  of the  approval  have to  be considered.  The

decision  in  Kohinoor  CTNL  Infrastructure  Co,  Pvt.  Ltd.  & Anr.  v.  The

MCGM & Ors. reported in (2013) 3 BCR 410 has been referred to by the

Additional Municipal Corporation Commissioner, and it has been held

that construction of public parking lot carried out on the spot under

reference constituted sufficient progress. Bypassing the order dated

30.1.2017, notice under section 51 of the MRTP Act was ordered to be

withdrawn. The premium was directed to be levied as per modified DCR

33(24).

18. In T.C. No.6/2018 filed by Janhit Manch, the order dated

10.11.2016 has been questioned.

19. SRUIL submits that the Government of Maharashtra has granted

in­principle approval for multi­storey parking lot to SRUIL at Mumbai

on 20.8.2010 comprising  3 basements plus  stilt  on ground plus  15

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upper floors, accommodating 900 car parking spaces with sufficient car

lifts and passenger lifts.  The construction was completed in September

2012 on the privately­owned land of the petitioners. The total built­up

area of the PPL is 62,005.91 sq.m. and has spent about Rs.165 crores

for construction of PPL, apart from the value of the land. The PPL is to

be handed over free of cost to the Corporation to be used by the general

public. It is lying completed but unused since 2012, which is against

the public interest. Thus, the cause espoused by Janhit Manch is not in

the interest of the public.

20. Mr.  C.U.  Singh, learned senior  counsel  appearing  on behalf  of

SRUIL, further submitted that the civil suit, which questioned the

notice under section 354A of the MMC Act, was decreed by the civil

court holding that there was deemed grant of further commencement

certificate in accordance with DCR 6(4) as the application submitted by

the Architect on 7.5.2011 for further commencement certificate beyond

plinth level was not refused by the Corporation as such the civil court

held that construction is with permission and in accordance with the

sanctioned plan  and there is  no  deviation  from  it.  The  view  taken

earlier by the Corporation in order dated 12.9.2013 was that the

construction of PPL, 3 basements and plinth and 15 upper floors were

legal and valid being based upon the deemed commencement certificate

under DCR 6(4), nevertheless, it was observed that the construction of

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PPL above the 4th  upper floor was not legal as it was contrary to

Government circular dated 22.6.2011.

21. SRUIL submits that in W.P. [C] No.2223 of 2013 filed by Janhit

Manch, the challenge was limited to incentive FSI arising out of the PPL

above the fourth floor. The High Court in the impugned judgment has

held that the  findings of  the Commissioner based on Circular  dated

22.6.2011 cannot be sustained, as the Circular, as well as the

consequential directives, had been struck down by the High Court in

several cases. It was also the stand taken by the Corporation in various

matters that Circular dated 22.6.2011, and the directives would not be

enforced because of statutory regulation, which has to prevail. The facts

mentioned above have not been disputed before us and that the

Circular dated 22.6.2011 has been struck down by the High Court.

22. SRUIL submits that the Corporation had filed the first appeal in

the High Court belatedly for challenging the civil court’s judgment and

decree. The High Court has erroneously held that the application dated

7.5.2011 made by the architect for further commencement certificate

was not in the prescribed form since it is not stated that the work has

been completed "under my supervision" instead, the architect has

mentioned, "we have completed the work."

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23. It is further urged that permission under DCR was a central issue

in the civil suit filed by SRUIL against the Corporation. The Corporation

in the first appeal did not challenge the finding of the City Civil Court

nor pleaded in a written statement that there was a failure to apply

prescribed form Appendix  XVI, and as such, there  was  no  deemed

permission. It was not the Corporation’s case that the letter received on

7.5.2011 was not in the prescribed form as per Appendix XVI and nor

that deemed permission was unavailable for this reason. No issue was

framed, and no evidence was adduced as to the invalidity of the letter

dated 7.5.2011, and that deemed permission did not accrue. On the

contrary, the Corporation's witness admitted receipt of the letter dated

7.5.2011 and its failure to reply to the same. Thus, the findings

recorded by the High Court about the irregular construction of 1 to 15

floors of the PPL are neither proper nor sustainable.

24. It is further submitted that the finding recorded in the impugned

judgment that the  commencement certificate is valid for  4  years in

aggregate and that the commencement certificate was lastly endorsed

on 18.11.2011, and therefore, it has lapsed, is contrary to Regulation

5(6) and section 48 of the MRTP Act. Regulation 5(6) stipulates that the

construction up to the plinth level has to commence within 4 years. In

case it is not commenced, then only the commencement certificate

lapses and new development permission has to be obtained. Thirdly,

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the mandate under section 48 of the MRTP Act is that the new

permission would be required if the construction work up to plinth is

not completed  within  4 years.  Admittedly, in the present case, the

construction of the PPL was complete in the year 2012 itself. Hence,

there was no requirement for new development permission. The finding

of the High Court is belied by section 51of the MRTP Act, which protects

the landowner against any revocation or modification in the building

permissions or the plans once the construction has substantially

progressed.  

25. It is  submitted  that  PIL No.  43 of  2012 was  filed belatedly  by

Janhit Manch on 1.3.2012 after three basements, and 9­10 upper floors

of  a  PPL  were  already  constructed  and  by that  date, India's tallest

residential building had already been constructed up to 56 floors. The

stage  mentioned  above of construction  was  admitted to in the  PIL.

There is an unexplained delay amounting to laches by Janhit Manch;

on this ground alone, the appeal and the Transfer Cases deserve

dismissal.  

26. It is further  submitted  on behalf  of  SRUIL that it  was  neither

pleaded nor argued by Janhit Manch in the PIL that the letter dated

7.5.2011 submitted by the Architect of SRUIL to the Corporation was

not in the prescribed form, i.e. Appendix XVI, nor that the permission

by deeming fiction under DCR 6(4) did not accrue for the said defect. In

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SLP [C] No.20279/2013 only those contentions which were raised

therein were left open by this Court as no such contentions/grounds

were raised in the previous special leave petition, as such the

contentions which were not raised in the special leave petition are not

open to being agitated now at a subsequent stage. The High Court also

had  kept open only those grounds that  were raised and left to be

decided by Corporation. Submission of Janhit Manch that construction

of PPL above plinth level is illegal as the same was carried out during

the stop­work notice dated 16.7.2011, is erroneous. The said notice did

not relate to PPL as has been made clear by the Corporation in their

affidavit dated 4.5.2012.  

27. Alternatively, it is urged on behalf of SRUIL that the ground raised

by Janhit Manch that the High Court could not have issued the

direction for regularisation deserves to be rejected in the light of this

Court's decision in  Muni Suvrat­Swami Jain S.M.P. Sangh v. Arun

Nathuram Gaikwad & Ors. (2006) 8 SCC 590. The challenge by Janhit

Manch that regularisation ought to be rejected and could not have been

ordered by the High Court is contrary to the decision in  Muni Suvrat

(supra). It is for the Corporation to take a decision, and Janhit Manch

has not questioned the vires of  the statutory provisions which allow

regularisation. Thus, the ground raised by Janhit Manch ought to be

summarily rejected.  The  construction  of  15  upper floors of the  PPL

cannot be said to be illegal. Even otherwise, in the absence of

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endorsement on the commencement certificate is a procedural

irregularity, and the same can be regularised under section 53(3) read

with section 44 of the MRTP Act, as the construction falls in the

categories as specified  in section 52. The Municipal Corporation has

itself issued Circulars in the exercise of its powers under the provisions

of section 53 read with section 44 of the MRTP Act on 4.2.2011, which

prescribes various modes of regularisation.

28. It is further submitted in the  alternative that in case  deemed

commencement certificate for further construction beyond plinth is

incorrect, and that there was no deemed commencement permission for

construction above the plinth. The Commissioner has directed

regularisation of 15 upper floors of PPL in terms of the order of the High

Court upon payment of Rs.44,80,15,781 as a penalty for building

beyond the plinth and Rs.117,81,10,640 as premium under the

amended DCR No.33(24) which came into force in 2014.

29. SRUIL also submitted that the challenge raised by Janhit Manch

to the order of regularisation on the ground of DCR 33(24) as amended

in 2014, to the effect that only two basements plus ground plus 4 floors

can be regularised on payment of premium as on the date on which

order is passed. It is contrary to the settled position of  law that the

existing provisions as on the date of permission and construction would

be applicable and not the subsequently amended law, as observed in

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Suresh Estates Pvt. Ltd. & Ors. v. Municipal Corporation of Greater

Mumbai  & Ors. (2007)  14 SCC 439, and  T.  Vijayalakshmi & Ors.  v.

Town Planning Member & Anr. (2006) 8 SCC 502. It is submitted that

the High Court's finding on lack of deemed permission for PPL deserves

to be set aside, and alternatively, the Corporation be directed to accept

the PPL upon payment by the petitioner of the amount on receiving the

amounts of premium and penalty. The application of the petitioner for

the regularisation of Floors 44 to 56 may be directed to be considered

and decided on its own merits by the Corporation.

30. It is further submitted concerning Floors 44 to 56 of the

residential building that the construction has been raised following the

sanctioned plans. It is nobody's case that the construction of the

residential  building  is  in violation or  the deviation of the sanctioned

plans. The plans have been approved and amended from time to time.

Last such amendment being on 8.2.2011 for the entire 56 floors of the

building. The commencement certificate was lastly endorsed up to the

43rd  floor for the height of 238.50 meters on 18.11.2011. Floors 44 to

56, as per the last sanction plan, are approved utilising 12344.63 sq.

mts. of additional 31002.5 square mts. of incentive FSI of the PPL. The

commencement certificate for  the said  floors  was  to  be endorsed on

handing over the PPL to the Corporation, which releases an additional

31,002.51 sq. mts. of incentive FSI.   The non­endorsement of

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commencement certificate from 44 to 56 floors is merely an irregularity

and not a breach of Development Control Regulation or statute.

31. Concerning the refuge areas for floor safety, it is submitted that

Janhit Manch seeks to challenge the exclusion of certain refuge areas

from the calculation of FSI. The rules provide for refuge areas. There is

no challenge to DCR 2(13), 2(42), 35, 37, 43, and 44, especially DCR

44(7).  Fire escape in  multi­storeyed  buildings is  necessary,  and the

Chief Fire Officer has to approve the plans. The refuge area, as

recommended by the CFO in his report and as sanctioned by the

Corporation, cannot be said to be excessive and contrary to DCR

Regulations.   

32. Regarding section 51 of the MRTP Act, it is submitted that once

the Planning Authority has sanctioned the plans, the power to modify

or revoke is under section 51, which can be exercised only in case of

the contingencies provided in the provisions of the said section.  

33. SRUIL lastly submits that Janhit Manch has no right to challenge

the judgment. They were aware of the civil suit and interim order

granted therein. They have filed the order in PIL No. 43/2012. Janhit

Manch has filed IA No.2/2013 and has withdrawn it. After that, they

sought impleadment in W.P. No. 2223/2013 in the High Court and after

that,  again withdrew the Chamber Summons. In  the circumstances,

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Janhit Manch should not be permitted to approbate and reprobate, and

the petition filed by it be dismissed as well as the Transfer Cases. The

petition is not filed to subserve any public interest.

34. Mr. Ahmadi, learned senior counsel appearing on behalf of Janhit

Manch has submitted that the development permission issued under

section 45 of the MRTP Act is valid for a maximum period of 4 years in

aggregate and lapses under section 48 upon expiry of the said period.

He has further submitted that the additional amended plans of SRUIL

dated 8.2.2011 are illegal and contrary to DCR 33(24) as the incentive

FSI did not accrue without handing over of the PPL. The construction of

PPL beyond the plinth area was illegal, as the deemed permission under

DCR 6(4) did not accrue in favour of SRUIL. The construction of the PPL

was done in violation of the stop­work notice issued by the Corporation.

The Corporation rightly limited the construction of the PPL to ground

plus 4 upper floors and two basements in terms of Circular. The

sanction of the PPL building by way of an endorsement of the

commencement certificate of the residential  building is wholly illegal.

The order dated 31.8.2016 passed by the Municipal Commissioner

regarding the refuge area is illegal, being contrary to the judgment of

the  High  Court  and  provisions  of  NBC.  The  order  of the  Additional

Municipal Commissioner dated 10.11.2016 purportedly adjudicating

the notice under section 51 of the Act is also illegal. Janhit Manch has

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filed a writ application and the Transfer Cases in the public interest and

has also attracted the attention of this Court to the inconsistent stand

taken by the Corporation at various stages.

35. Shri A.N.S. Nadkarni learned Additional Solicitor General,

submitted  on  behalf of the  Corporation that pursuant to the order

passed by the High Court,  the Commissioner has already passed an

order compounding the PPL and construction of PPL is in the public

interest as 900 cars can be parked in the same. It has been constructed

by spending a massive amount of Rs.165 crores; in addition, fine and

penalty have been imposed by the corporation, which is a substantial

one, amount of which is also going to be used for a public purpose.

Thus no case for interference is made out. Due to the order passed by

the  Commissioner imposing fine  and  penalty, the  matter is given  a

quietus, and no public interest is going to be served by entertaining the

petitions filed by Janhit Manch.

In re. :  development permission  issued under  section 45 of  the MRTP Act :  

36. First, we take up a question for consideration whether the

permission for development issued under section 45 has lapsed? It is

submitted on behalf of Janhit Manch that permission granted under

section 45 of the MRTP Act is valid for a maximum period of 4 years in

aggregate and lapses under section 48 of the Act on expiry of the said

period. It is submitted that intimation of disapproval (IOD) under

22

section 346 of the MMC Act was given to SRUIL in respect of a proposed

commercial building. It was necessary to obtain a commencement

certificate as per the conditions of IOD couched in negative form. On

24.2.2005 first commencement certificate was issued. As per condition

Nos. 5 and 9 of  the commencement certificate, it is renewable every

year  and can  be extended for  3 years.  After that, fresh  permission

under section 44 of the MRTP Act has to be obtained. The

commencement certificate was extended up to the 43rd  floor on

8.2.2011. The commencement certificate was endorsed on 12.9.2006.

Earlier commencement certificate was for different plans of commercial

building and  lapsed on 23.2.2006.  Thus, the plans dated 12.7.2005

could  not  have  been  approved as the  modification  was substantial;

hence, a fresh IOD and commencement certificate was required as per

Regulation 6(5) of DCR 1991. On 24.1.2008, a commencement

certificate was endorsed concerning a residential  building as per the

amended, approved plan dated 7.11.2007. Earlier commencement

certificate was for a different plan which lapsed on 11.9.2007. The plan

of  7.11.2007 could not  have been approved as the modification was

substantial, which involved basements. The commencement certificate

concerning the residential building lapsed on 9.7.2010. It was endorsed

on 11.8.2009 up to 34 floors. On 1.10.2010, the commencement

certificate concerning PPL was endorsed up to the plinth level only. On

18.11.2011, it was extended from time to time concerning the

23

residential building. It is also submitted that under section 48 of the

MRTP Act, commencement certificate shall remain in force for one year

from the date of receipt of such grant, failing which it will lapse. The

endorsement made concerning the residential building was invalid. The

endorsement  on the  commencement certificate  dated  24.1.2008  was

also illegal.

37. Learned senior counsel further submitted that under section 44 of

the MRTP Act,  application  for permission  for development has to be

filed. It can be granted or refused under section 45. In case it is

granted, it shall be contained in the commencement certificate in the

prescribed form. Section 48 has been relied upon, which provides that

every permission shall be valid for 1 year and renewable for the next 3

years. The MRTP Act has been amended by Maharashtra Act 17 of 2007

amended section 48 by substituting the second proviso. It is provided

that if the development is not completed up to the plinth level within 1

year or the extended period, it shall be necessary for the applicant to

make an application for new permission, the second proviso cannot be

interpreted to nullify the effect of the main provision. Thus,

development permission lapses upon expiry of the aggregate period of

four years. Regulation 5(6) of DCR 1991 has also been relied upon by

Janhit Manch. Similar was the condition mentioned in the

commencement certificate dated 24.2.2005.

24

38. On the other hand, on behalf of SRUIL, it is submitted that the

finding of the High Court that commencement certificate is valid for 4

years in  aggregate, is  contrary to  Regulation 5(6)  of  DCR 1991 and

section 48 of the MRTP Act, as amended. In case construction work up

to the plinth level is not completed within 4 years, it is necessary to

obtain fresh permission and not otherwise.

39. Regulation 5 contains the procedure for obtaining commencement

certificate, Regulation 5(6) provides as to commencement of work.

Regulation 5(6) is extracted hereunder:

“5. Procedure for obtaining Development Permission and Commencement Certificate:­ (6) Commencement of work:— A commencement certificate/development permission shall remain valid for four years in the aggregate but shall have to be renewed before the expiry of one year from the date of its issue. The application for renewal shall be made before expiry of one year if the work has not already commenced. Such renewal can be done  for three consecutive  terms of  one year each, after which proposals shall have to be submitted to obtain development permission afresh.

For the purpose of this Regulation,  ‘Commencement’  shall  mean as under:—  

(a) For a building work including  additions and alterations:­

Up to plinth level

(b )

or bridges and overhead tanks; Foundation and  construction work up to  the base floor

(c) For underground works: Foundation and  construction work up to  floor of underground floor

(d )

For lay­out, subdivision, and  amalgamation proposals:

Final demarcation and  provisions of  infrastructure and  services up to the  following stages —  (i) Roads: Water bound  macadam complete.

25

(ii) Sewerage, drainage,  and water supply  excavation and base  concreting complete.”

40. Section 48 of the MRTP Act,  as amended  in 2007,  is  relevant.

Same is extracted hereunder:

“48. Every permission for development granted or deemed to be granted under section 45 or granted under section 47 shall remain in force for a period of one year from the date of receipt of such grant, and thereafter it shall lapse :

Provided that, the Planning Authority may, on application made to it extend such period from year to year; but such extended period shall in no case exceed three years:  

Provided further that, if the development is not completed up to plinth level or where there is no plinth, up to upper level of basement or stilt, as the case may be, within the period of one year or extended period, under the first proviso, it shall be necessary for the applicant to make application for fresh permission.”

(emphasis supplied)

It is provided in section 48 that permission for development or

deemed permission shall remain in force for a period of 1 year from the

date of receipt of such grant, and thereafter it  shall  lapse. It  can be

extended from year to year, but such extended period shall in no case

exceed three years. The second proviso as inserted by way of

amendment in 2007 provides that if the development is not completed

up to plinth level or where there is no plinth, up to the upper level of

basement or stilt, as the case may be, within the period of 1 year or

extended period, under the first proviso, it shall be necessary for the

applicant to make application for fresh permission. Thus, it is apparent

from the second proviso that in case construction has not been made

26

up to plinth level or where there is no plinth, up to the upper level of

the  basement  or stilt,  within  one  year  or the  extended period, it is

necessary to make an application for new permission. Since the main

section 48 does not deal with the situation where construction has been

made up to plinth level or where there is no plinth, up to the upper level

of basement or stilt, as the case may be, and neither first proviso deals

with the situation above. The  interpretation of the second proviso  is

clear that in case construction has been made up to the plinth level or

where there is no plinth, up to the upper level of the basement or stilt,

within  4  years, it shall  not  be  necessary for the  applicant to  make

application for fresh  permission for  development in the light  of the

second proviso to section 48.

41. Regulation 5(6) deals with the commencement of the work. It does

not deal with the situation mentioned in the second proviso to section

48 of the Act. Regulation 5(6) provides that on expiry of one year if the

work has not already commenced and such renewal can be done for

three consecutive  terms of  one year each.  The Regulation has to be

interpreted in tune  with the  provisions contained in section  48, as

amended. It cannot curtail the ken of section 48. Thus we hold that in

case construction has been done up to the plinth level within four years

from the date of development permission, it would not be necessary to

27

obtain it afresh. The finding of the High Court, to the contrary, is set

aside.  

In re: additional amended plans of SRUIL up to 56 floors:  

42. It is submitted on behalf of Janhit Manch that additional

amended plans submitted by SRUIL up to the 56th floor are illegal and

contrary to DCR 33(24). DCR 33(24) was introduced vide a Notification

by  which  a car  parking scheme  was  brought into effect from 2008

thereunder for a public parking lot (PPL) constructed on a plot of land

and handed over free of cost to the corporation. A plot owner/developer

was entitled to receive incentive FSI, inter alia to the extent of 50% of

the area of the PPL handed over by him, to be used on the said plot

itself. DCR 33(24) allowed unrestricted construction of PPLs of

unlimited floors without having any logical or scientific basis for their

need in specific areas and/or localities. The provision was subjected to

misuse. On 18.6.2010, the proposal for the construction of PPL received

the approval of the Urban Development Department of the Government

of  Maharashtra  in respect  of the PPL proposed by SRUIL.  Condition

Nos.2, 5, and 8 of the said approval made it clear that the additional

FSI  in  lieu of  development of  PPLs shall  be granted after parking  is

created and handed over to the corporation free of cost. The

Corporation has not taken over the PPL so far; as such, there is no

additional FSI available to SRUIL. The IOD could not have been granted

28

beyond the 44th  floor up to 56 floors.  Thus,  the sanction granted to

SRUIL for construction of a Palais Royale having 56 floors was void ab

initio.

 43. It is further submitted that as per condition Nos.13, 18 and 24, it

is  after  conditions under DCR 33(24)  are  complied with,  and actual

handing over of the PPL, commencement certificate for the additional

FSI shall be granted and not before that. On 20.8.2010, the Corporation

issued a  letter approving the amended plan for the PPL proposing 3

basements plus lower ground plus stilt plus 15 floors. On 1.10.2010,

commencement  certificate for the  PPL was  granted  up  to the  plinth

level, only including the  basement.  On  8.2.2011, the  plans for the

residential Palais Royale building were sanctioned up to 56 floors for a

total FSI of 54,715.19 sq. meters. It is submitted that the sanction was

illegal. On realizing the disastrous consequences of DCR 33(24), a

circular was issued on 22.6.2011, directing that all proposals of PPL

may be considered subject to the height of PPL being limited to ground

plus  four upper  floors  and two basements.  SRUIL did not  challenge

circular in the court. The State Government proposed the modification

of DCR 33(24) on 19.3.2012. On 14.9.2012, SRUIL requested the

Corporation to take over the PPL. The State Government issued a

notification amending DCR 33(24) on 6.8.2014 by inter alia limiting PPL

29

as provided in said Circular,  i.e., three basements plus ground plus

four upper floors.  

44. It is apparent that in principle the approval had been granted to

raise the PPL. On 18.6.2010 at that time, DCR 33(24), there was no

restriction on  the  floors of  PPL that  came to  be  introduced  in 2014

before that the completion of PPL has taken place. The PPL has been

validly constructed under deemed permission. Additional FSI would be

available as soon as the Corporation takes over the PPL. The High Court

has directed the Corporation to decide the fate of 13 floors beyond the

44th  floor in the impugned order concerning which the decision has to

be taken as ordered by the High Court to the Corporation. FSI no doubt

would  be available  once possession of  PPL  is  handed over.  The  fact

remains that residential building, as well as the PPL, have been

constructed as per sanctioned plan, and now a final decision has to be

taken by the Corporation regarding 44 to 56 floors as ordered by the

High Court. We find ourselves in unison with the decision of the High

Court that construction was not illegal as the development permission

was granted, the plan was sanctioned for PPL as well as for the

residential building. Thus, we find no force in the submission raised by

Mr. Ahmadi. However, the Corporation to take a decision concerning 13

floors of the residential building as ordered by the High Court within 1

month.

30

In Re: deemed permission under Regulation 6(4) of DCR 1991:

45. SRUIL submits as  to  PPL  that  on the basis  of  application  for

inspection  submitted  on 7.5.2011 by  the  Architect  who was looking

after the project under Regulation 6(4), intimation was given for

inspection under DCR 6(4) and there was no inspection made by the

Commissioner jointly with the licensed technical personnel or Architect

within 15 days from the date of receipt of the notice. It was incumbent

upon the Commissioner either to refuse or to give permission for further

construction as per the sanctioned plan in the form in Appendix XVI. As

the permission had not been declined, the permission shall be deemed

to have been given. It is submitted on behalf of SRUIL that though the

application for inspection was not given in the prescribed format,

nonetheless, the same fulfilled the requisites as provided in the

prescribed form XVI. It is submitted that the Government of

Maharashtra  granted in­principle  approval for  construction of  multi­

storeyed parking lot to SRUIL on its land at Worli, Mumbai on

18.6.2010. The need for PPL had been examined. All the approvals, as

contemplated by DCR 33(24), starting with the Government approval,

were in place before  commencing  the construction of  PPL.  The total

built­up area of the public parking lot is 62,005.91 sq.mtrs. It is

submitted that in  the construction of  PPL,  Rs.165 crores  has been

spent apart from the value of the land. The PPL is to be handed over

31

free of cost to the Corporation. In the civil suit, it was held that there

was  deemed permission under  DCR 6(4).  The judgment  of the  High

Court dated 13.5.2013 in PIL No.43/2012 and the decree of the city

civil court in Suit No.2942 of 2013 was at that stage, accepted by the

Corporation and the Municipal Commissioner proceeded in September

2013 to determine the issues which were to be decided by him as per

the decision of the High Court dated 13.5.2013.

46. It  was held by the Commissioner that though the construction

above the plinth level was legal and valid, the construction of the PPL

above the  4th  floor, i.e., floors  5 to  15  was  against the  Government

circular dated 22.6.2011 by which restrictions have been imposed in

the city of Mumbai to a maximum of 4 upper floors. In W.P. [C]

No.2223/2013, the challenge was limited to the incentive FSI arising

out of the PPL above the fourth floor. In the writ petition filed by SRUIL,

the challenge was limited to incentive FSI arising out of PPL above the

fourth floor, which the Commissioner held will not be granted as it was

not in accordance with the Circular dated 22.6.2011.  

47. The High Court in the impugned judgment has held that Circular

dated 22.6.2011 has been struck down by the High Court in several

cases. In the High Court, in many cases, the Corporation has taken the

32

stand that Circular dated 22.6.2011 and consequential directives would

not be enforced in view of statutory provisions of DCR 33(24).  

48. It is  also  submitted  on behalf  of  SRUIL  that  after  passing  the

order  dated  12.9.2013  in  which  it  was  held that there  was  deemed

permission, the Corporation belatedly filed First Appeal No.884 of 2015

on 20.11.2013 to challenge the City Civil Court’s judgment and decree.

Filing of the belated appeal after accepting the verdict of the trial court

and that of the High Court and in view of the order dated 12.9.2013, it

was not open to the Corporation to file the appeal. It is further

submitted on behalf of SRUIL that the High Court has erroneously held

that the application dated 7.5.2011 filed by the Architect  for  further

commencement certificate above plinth level was not in the prescribed

format as it does not state "under my supervision" instead, the

Architect says "we have completed the work."

49. It is further submitted on behalf  of  SRUIL that it  was not the

Corporation's case in the written statement filed in the civil suit that

the letter received on 7.5.2011 was not in the prescribed format, nor it

was submitted that deemed permission did not accrue for the aforesaid

reason.  As such,  no issue  was framed  on the  aforesaid aspect.  No

evidence was adduced. At a subsequent stage, the plea could not have

been raised by the Corporation. The witness examined on behalf of the

33

Corporation admitted the receipt of the letter dated 7.5.2011 and failure

to send the reply that without raising the issue before the civil court, it

was orally argued at the time of final argument which was rejected by

the civil court. However, the Corporation in First Appeal No. 884/2015

did not challenge the said finding of the city civil court. It was not the

case such set up that failure to follow the Appendix XVI format vitiated

the deemed permission. Thus, deemed permission accrued under DCR

6(4).

50. SRUIL further submits that Janhit Manch filed PIL on 1.3.2012

after 3 basement levels, and 9­10 upper floors of a public parking lot

had been constructed. There was a delay in filing the PIL as

construction has substantially progressed. On this ground, the special

leave petition  of Janhit  Manch  and  Transfer cases  are liable to  be

dismissed. In PIL No. 43/2012, it was not the case set up by Janhit

Manch  that the letter  dated  7.5.2011  was  not in  prescribed format

Appendix XVI nor that the deeming  fiction under DCR 6(4)  was not

available. The High Court in the previous round had rejected all  the

submissions which were raised therein vide judgment and order dated

13.5.2013 in paragraph 28(m) to (o). It is further submitted that in SLP

[C] No.20279/2013, Janhit Manch challenged only those findings of the

High Court,  which were  against it,  and  they did not raise  any plea

beyond what was argued and decided in PIL. It was not the case set up

in the special leave petition that the letter received by the Corporation

34

on 7.5.2011  was  not in the  prescribed form.  This  Court  closed the

special leave petition on 15.1.2018 with the disposal of IA No.6. The

contentions raised therein were left open as no such ground was ever

raised in the said petition. Hence, the same cannot be raised now in the

instant  matter,  which  was  not left open  and taken in the  previous

round. The stop­work notice dated 16.7.2011 did not relate to PPL. The

Corporation expressly asserts this fact in their affidavit dated 4.5.2012.

51. On the other hand, it was submitted on behalf of Janhit Manch

that Regulation 6(4) mandates that an application should be filed in the

prescribed form Appendix XVI. The form contains a mandatory

requirement of the statement of the Architect that the work up to the

plinth has been done under his supervision. The same is not an empty

formality as the statement to that effect binds the Architect in respect of

any defect or calamity,  which may occur  in the  future.  Letter  dated

7.5.2011 did not fulfil the aforesaid mandatory requirement. It is also

submitted that the letter  was  undated.  The  provision is  mandatory.

Janhit  Manch further submits that stop­work  notice  was issued to

SRUIL  for the entire  plot.  An  inventory  was prepared on 22.7.2011,

which records that "The work of PPL tower is in progress up to plinth

which is as per commencement certificate granted." Therefore, the

construction of  the plinth was not complete even on 22.7.2011. The

sine qua non for making an application under Rule 6(4) is that the work

up to the plinth must be completed. Because of inventory dated

35

22.7.2011, it was submitted that the plinth was not completed up to

that  date.  As  such,  no legal fiction is  created  under  DCR 6(4).  For

deeming  fiction of  permission  to  take effect, the condition precedent

must have strictly complied. There is no scope for a liberal

interpretation of such condition, and unless there is strict compliance

of the provisions, a deeming fiction cannot take effect. The High Court

has rightly held that unless the application is submitted in the format,

it will lead to chaos as lower­level officials would be saddled with the

burden of deciding whether the applicant complies with the

requirement of DCR 6(4). Even if the form is not mandatory, when the

law prescribes a mode of doing a thing, it can be done in that manner

only  and  not in  any  other  mode. In  any event, deemed  permission

under DCR 6(4) cannot go beyond 1 year. Therefore, the construction is

done beyond the period of 1 year, that is, after 22.5.2012, is patently

illegal. The construction was ready only on 14.9.2012.

52. Before  we appreciate the rival submissions, it is necessary to

consider the provisions contained in DCR 6(4). DCR 6 deals with the

procedure during construction. DCR 6(1) provides construction to

conform to regulations. Under DCR 6(2), the owner shall give notice to

the Commissioner of his intention to start work in the form given in

Appendix XV. DCR 6(3) provides that results of the test of any material

shall  be kept available  for inspection during  the construction of the

36

building and such period after that, as may be prescribed. DCR 6(4)

contains a provision for checking plinth columns up to the plinth level

by the Commissioner. Regulation 6(4) with which we are concerned is

extracted hereunder:

“6. Procedure during construction:­ (4) Checking of plinth columns up to plinth level:—The owner through his licensed surveyor, engineer, structural engineer or supervisor or his  architect shall give  notice in the form of  Appendix  XVI to the Commissioner on completion of work up to plinth level to enable the Commissioner to  ensure that the work conforms  to the  sanctioned plans. The Commissioner may inspect the work jointly with the licensed technical personal or architect within fifteen days from the receipt of such notice and either give or refuse permission for further construction as per the sanctioned plans in the form in Appendix XVII. If within this period, the permission is not refused, it shall be deemed to have been given provided the work is carried out according to the sanctioned plans.”

It is apparent from DCR 6(4) that the purpose of the intimation to

be given by licensed surveyor, engineer, structural engineer or

supervisor or his architect in the form of Appendix XVI to the

Commissioner on completion of work up to plinth level is to enable the

Commissioner to inspect to ensure that the work conforms to the

sanctioned plans. It is the Commissioner's satisfaction that work

conforms to the sanctioned plans, not that of Architect of builder. It is

for the Commissioner to satisfy himself,   he has to inspect the work

jointly with the licensed technical person or Architect within 15 days

from  the receipt of such  notice, and thereupon  he  has to form an

opinion whether the work conforms to the sanctioned plans and

thereupon he is required to give or refuse permission for further

37

construction as per the sanctioned plans. Further permission has to be

issued in Form Appendix XVII.

53. It is also provided under DSR 6(4) that if within the period of 15

days, the permission is not refused, it shall be deemed to have been

granted provided the work is carried out according to the sanctioned

plans. Thus, it is necessary to decide whether to give permission or to

refuse after inspection within 15 days of the notice. In case it is not so

done  within 15 days, the  permission shall  be  deemed to  have been

granted. However, it is necessary for deemed permission to come into

play; work of foundation up to the plinth level had been carried out

according to the sanctioned plans.

54. In DCR 6(4), the prescribed Form XVI is extracted hereunder:

“APPENDIX XVI

[Regulations No.6(4)]

Form of intimation of Completion of Work up to Plinth Level

To

The Executive Engineer (Building Proposal) ................Ward, Municipal Corporation of Greater Mumbai.

Sir,

The construction up to plinth/column up to plinth  level  has been completed in Building No..........on/in Plot No./C.S. No./ C.T.S.No.................Division/Village/Town Planning Scheme No. ……............Road/Street.................Ward.......................................in accordance with your permission No.................dated……...............under my supervision and in accordance with the sanctioned plan.  

Please check the completed work and permit me to proceed with the rest of the work.

38

Yours faithfully, Signature of Licensed Surveyor/

Engineer/Structural Engineer/Supervisor or Architect Name …………………………………………

(in block letters) Address…………..…………………………. ………………………………………………… …………………………………………………

Date : .........................................”

55. The notice dated 7.5.2011, which has been served by the

Architect of SRUIL under Regulation 6(4), is extracted hereunder:

“TALATI & TALATI & PANTHAKY ASSOCIATES PVT. LTD.

EST, 1964 ARCHITECTURE & INTERIOR DESIGN

CHAIRMAN NOSHIR TALATI M.DIRECTOR NOZER PANTHAKY

DIRECTORS – NOUSHIR DEVITRE – PHIROZE PANTHAKI – ZAHIR CASSUM –  SHAROOKH MEHTA – XERXES TALATI

To,

The Executive Engineer (B.P.) City – 1, ‘E’ Ward MCGM Office, Byculla, Mumbai – 400008

Dear Sir,

Sub: Development of Public Parking Lot on plot bearing C.S.No.288, 289, 310,  1/1540,  3/1540,  1547,  1548, 1549,  1/1539  &  1550  of Lower division belonging to Shree Ram Mill Ltd. at Ganpatrao Kadam Marg, Mumbai – as per the provisions of D.C. Regn. 33 (24). Ref:  File U/No. EB/987/GS/A.

With reference to the above subject.   The amended plan submitted by us has been approved by your office.   Further, we have complied all the condition of I.O.D. as well as amended plan, and we have complied work  up to plinth as  per approved  plans. You  are therefore requested to kindly check the plinth and grant us further C.C. at the earliest.

Thanking you, Yours faithfully, For Talati & Panthaky Associated Pvt. Ltd. Sd/­

39

Authorised Signature” (emphasis supplied)

56. When  we compare the  aforesaid  Form XVI  and the intimation

submitted by SRUIL’s Architect on 7.5.2011, it becomes clear that

notice given is rightly addressed to the Executive Engineer. The subject

mentioned is the  development  of  PPL  as  per the  provisions  of  DCR

33(24). The requirement that construction up to plinth/column up to

the plinth level has been completed, in accordance with the approved

plan, fulfils the requirement of the first part of the format Appendix XVI

mentioned before the word “date." After the word “date", the

requirement in the prescribed format is that “the work has been

completed under my supervision” and “in accordance with the

sanctioned plan." The latter portion, in accordance with the sanctioned

plan, has been mentioned in so many words. The only difference is the

format prescribes that the work has been done "under my supervision

and in accordance with the sanctioned plan.". It has been mentioned

that "we  have complied (sic – completed)  work  up to  plinth  as  per

approved plans."

57. The architect, by the aforesaid expression, is owning that he has

completed the work as per the approved plans. He owns responsibility

upon himself that he has ‘complied with’ or ‘completed the work’ up to

the plinth level as per approved plans, which would obviously mean

40

that it  has been done under his  supervision.  When the Architect is

saying that we have completed the work, he owns the responsibility of

the construction that has been made. When he owns that construction

is on his part  as per plan, that  would mean under his supervision.

Apart from that, the basic idea of DCR 6(4) is not to ensure the

satisfaction of the Architect, some licensed surveyor, engineer,

structural engineer, supervisor or Architect but it is for the

Commissioner to ascertain that the work up to plinth level has been

done as per sanctioned plan. A mere statement by the Architect that the

work has been done under his supervision is not going to satisfy the

main requirement of DCR 6(4) of satisfaction of the Commissioner. The

intendment of DCR 6(4) is that the work conforms to the sanctioned

plan, which is as per the satisfaction of the Commissioner. The purpose

of the notice is to enable the Commissioner to inspect and reach the

satisfaction that the work done conforms to sanctioned plan. Then he

has to act further based on his satisfaction, in case of construction as

per the sanctioned plan, he has to give permission for further

construction within  15 days  or refuse it. In case  he fails to  do  so,

permission is deemed to have been granted for further construction.

58. In the instant matter, the receipt of the letter dated 7.5.2011 has

not been denied on behalf of the Corporation in the written statement

filed in the civil suit, instead this fact has been admitted by the witness

41

examined on behalf of the Corporation in the civil suit, in the city civil

court, that the communication dated 7.5.2011 had been received and

no  reply to it  was  sent. It is  not the  case  anywhere  set  up by the

Corporation that the construction  up to plinth  was  not as  per the

sanctioned plan. Thus, the deemed permission has come in force under

DCR 6(4), on expiry of 15 days from the service of notice dated

7.5.2011.  In C.S. No. 2942/2011 filed by SRUIL in the plaint, it has

been stated that the plaintiff’s Architect has served notice on 7.5.2011

under DCR 6(4). No reply or any rejection was received within 15 days

from the corporation/defendants. Thus, the deemed permission came

into play. Following averments have been made in the plaint:

“18. As per the LOI dated 6th August 2010, the Plaintiffs were required to complete and handover to the MCGM the said Public Parking Lots within 24 months of issue of the LOI, i.e., by 6th  August 2012.   The Plaintiffs state that the construction of the plinth was completed in May 2011 following the CC.   The Plaintiffs, after that, gave notice as required  under  DCR 6(4) for inspection  of the  plinth  and grant  of further CC on 7th May 2011.  Since the Plaintiffs received no reply nor any rejection to the same  within  15  days, the construction  of the Public Parking Lot was continued by the Plaintiffs as per the sanctioned plans, in accordance with the law.   Hereto annexed and marked Exhibit "I" is a copy of the Plaintiffs Architect's letter dated 7th

May 2011.   The Plaintiffs say and submit that as no reply/rejection was received within 15 days from the Defendants as required under law and hence as per DCR 6(4), it is a deemed provision permitting the plaintiffs to carry out further work as requested in their letter dated 7th

May 2011.”

59. We have gone through the entire written statement filed by the

corporation. They have nowhere denied that they received the notice

dated 7.5.2011,  nor  it is  denied  that there  was deemed permission,

after the lapse of 15 days of notice under DCR 6(4). Averments made in

42

para 18 have not been replied. In para 5, there is a reply to paras 1 to

4. In para 6, there is a reply to paras 5 to 8 of the plaint. Then in reply

to para 7, there is a reply to paras 9 to 20. Even otherwise, we have

gone through para 7 and the special pleas and the entire written

statement. We find no reply to the averments described above made in

the  plaint.  Thus, in the  civil suit, for  want  of  denial,  no issue  was

framed on the aspect of deemed permission. Apart from that, the

witness of the corporation namely Ajay Sadanand Chawan has admitted

in para 2 of the cross­examination that the letter issued by the plaintiff

to the Corporation for obtaining further commencement certificate for

the construction of public parking building, was received by the

Corporation and that the Corporation did not reply to the said letter.

Para 2 of cross­examination is extracted hereunder:

“2. On perusal of the file in my custody, I had seen that there is one letter issued by plaintiff to the corporation for obtaining further commencement certificate for the construction of public parking building.  The letter at Exh.14 now shown to me was received by our corporation.  The corporation did not reply to the said letter either or allowing of the said letter or of refusing the said letter till the 31 st May 2011.   After the 31st May 2011, the corporation did not reply to the said letter copy at Exh.14.  Public Parking Building is of RCC.  So far as completion of the RCC Slab at each floor, there should be interval of two to three weeks' time.  In order to complete the RCC Slabs up to the 7th floor, reasonable time of 3 to 4 months is required.  The corporation had received a reply issued by the plaintiff to the notice dt/29/011/2011 copy at Exh.25.  It is true that our corporation had received the reply to the notice dt. 19/12/2011 copy at Exh.24."  

60. In para 1 of the cross­examination, the witness has admitted that

the said work in respect of 14 floors of the PPL building was following

the approved and sanctioned plan of the Corporation. It was not the

43

case  set  up by  the  Corporation  that the  notice  dated  7.5.2011 was

illegal, and it did not conform to Form XVI as prescribed under DCR

6(4). The factum of the receipt of the notice has been admitted. The

submission raised on behalf of Janhit Manch that notice dated

7.5.2011 is a doubtful document is belied by the record of the

Corporation and the admission made by the witness of the Corporation.

The notice dated 7.5.2011 was available on the file of the Corporation,

but it  was not replied.  The Division Bench of the  High Court  while

deciding PIL No. 43/2012 filed by Janhit Manch vide order dated

13.5.2013, has called for the inward register to verify  whether the

Corporation received the notice and the High Court had made following

observations:  

“(l) The  Respondent  no.5  has contended that it  had  submitted  a letter  on 7th  May 2011 under  DCR 6(4) for further  commencement certificate  and  the  application  having  not  been  refused,  deemed  to have been granted.   The Petitioners have laid heavy emphasis on the fact that the said letter purported to be of 7th May 2011 is undated, and therefore there is no question of deemed permission.   It is true that the said letter is undated, but there is a receipt by the Corporation of having received the application on 7th  May 2011. During the course of the hearing, the learned counsel for the Corporation produced the original  inward register.   We perused the said inward register and found nothing suspicious or out of the ordinary.  There is an entry of 7   th   May 2011 as regards receipt of the application of the Respondent No.5, which seems to be made in the usual course.   Admittedly this application is not decided by the Corporation.   In the circumstances, we do not find that the submission made by the Respondent no.5 that it had deemed permission is without any substance. The Respondent no.5 has filed a Civil  suit taking this contention in which there  is an  interim order passed in favour of Respondent no.5.”                                              

(emphasis supplied)

44

61. It is apparent that the Division Bench of the High Court has seen

the inward register also and there is a corresponding entry on 7.5.2011

as regards the acceptance of notice. It seems to have been made in the

usual course. In PIL No. 43 of 2012 filed by Janhit Manch, no such plea

was taken that the notice was not in Form XVI, and it was illegal. In

First Appeal No.884/2015, the Corporation did not challenge the

finding of the civil court, nor did it raise the ground that owing to the

failure to submit a notice in Form XV, the letter dated 7.5.2011 cannot

be treated as valid intimation and as such deemed permission did not

accrue. The main ground raised in PPL was about FSI, and concerning

public car parking proposal, pleadings were made in para 23 of the writ

petition. In para 25 it was pleaded that commencement certificate dated

1.10.2010, permitted construction only up to the plinth level for public

parking lot vide undated letter of Architect of respondent no.5 received

by the Building Proposal Department of the Corporation on 7.5.2011,

respondent No.5 through its Architect informed that the amended plan

has been approved by their office, and have completed the work as per

the approved plans, and sought  further commencement certificate at

the earliest. In para 26, it was pleaded that the Corporation did not

respond to  the  letter.  Paras 25 and 26 of the petition are extracted

hereunder:

“25. Since the C.C. dated October 1, 2010, permitted construction only up to the plinth level for Public Parking Lot, a further Commencement

45

Certificate was required for the ground + upper floors above the plinth. By an undated letter of the Architects of Respondent No.5 received by the  Building  Proposal  Department  of the  MCGM on 7   th    May  2011, Respondent No.5, through its Architect, informed that "The amended plan submitted by us has been approved by your office.   Further, we have complied all the conditions of I.O.D. as well as amended plan, and we have complied work up to plinth as per the approved plans. You are therefore requested to kindly check the plinth and grant us further C.C. at the earliest.  This letter significantly is undated, and as more  particularly set out  hereafter, it is evident that  work  on the plinth was completed.   This was clearly a false contention as set out hereafter.  Hereto annexed and marked as Exhibit "O" is a copy of the undated letter addressed by the Architect of Respondent No.5 to the Executive Engineer (B.P.) City – I.

26. The MCGM apparently did not respond to this letter.  Based upon the alleged lack of response, though no inspection was carried out, Respondent No.5 now contends that it carried out construction above plinth level pursuant to Regulation 6(4).   Significantly, on the date of this letter of its Architect, there was no revised MOEF permission for this Public Parking  Lot, and  Respondent  No.5 was not entitled to construct without prior permission of the MOEF under the Environment Impact Assessment Notification, 1994.   This EIA Permission was only subsequently obtained on June 8, 2011."  

(emphasis supplied)

62. It was not the case set up by Janhit Manch in the previous writ

petition (PIL) that the notice was not in Form XVI, and the letter dated

7.5.2011 did not fulfill  the requirement of Form XVI. Instead, it was

admitted that it was received by the Corporation and was not replied to

and that the Architect intervened to have the work completed as per the

approved  plan. In the special leave  petition  preferred in this  Court

against the decision of the High Court in PIL No. 43/2012, this ground

was not raised, nor was it raised before the High Court in the PIL. In

SLP [C] No.20279/2013 as against order dated 13.5.2013 which was

decided on 11.3.2016, the following order was passed by this Court:  

46

“Permission to file additional documents is granted.

Having heard the learned counsels for the parties, we are of the view that there is no live issue for adjudication in the present Special Leave Petition. The Special Leave Petition is disposed of accordingly. However, we make it clear that in the event it becomes so necessary, after receipt of the order passed by the Bombay High Court, it will be open for the petitioners to make a mention for recall of the present order.”

63. On 15.1.2018, IA No.6 was filed in SLP mentioned above, and the

following order was passed:  

“I.A. No.6 IN SLP (C) NO.20279/2013 Upon hearing  Shri  Shekhar  Naphade, learned Senior  Counsel

appearing for the  applicants  we are  of the  opinion that in  view of subsequent developments and subsequent challenges which are pending before this Court it is not necessary to reopen and reconsider the present I.A.  Therefore, the present I.A. (No.6) shall stand closed.

Special  Leave Petition  (Civil)  No.10704­10705 of  2016,  Special Leave Petition (Civil) No….. CC No.13523­13528 of 2016 and Transferred Case  (Civil)  No.271 of  2017 shall,  consequently,  be  de­ tagged and be listed before the appropriate Bench.  All issues are kept open.

Office to  post  Special  Leave Petition  (Civil)  No.10704­10705 of 2016, Special Leave Petition (Civil) No….. CC No.13523­13528 of 2016 and Transferred Case  (Civil)  No.271 of  2017 before  the appropriate Bench on 22nd January 2018."  

Thus, it was not considered appropriate by this Court to reopen

the matter and reconsider it. Thus, all the issues were left open. They

were only those raised earlier  in the PIL by Janhit Manch. It is also

pertinent to mention that in compliance of the order passed by the High

Court on 13.5.2013, the Corporation has passed order on 12.9.2013,

before filing the First Appeal in the High Court, in which the

Commissioner of the Corporation has clearly held that in view of notice

47

dated  7.5.2011  as  per  DCR 6(4), the  deemed permission  came  into

effect on lapse of 15 days.

64. Though we have decided the plea on merits, however, it is

apparent from the aforesaid discussion that it is not open to the parties,

i.e., the principle of constructive res judicata bars the Corporation and

Janhit  Manch  to take  somersault  and  take  a  different  stand  in the

subsequent litigation and all the available pleas, which could have been

taken in previous civil suit and PIL, ought to have been raised,

otherwise raising of them in subsequent lis.

65. It passes comprehension how Janhit Manch is raising the

question now that the notice dated 7.5.2011 was not served upon the

Corporation, whereas it has been admitted by it in the previous PIL that

it was served but was not attended to by the Corporation. In the written

statement filed by the Corporation before the city civil court, it is not

denied, and its witness has admitted that the notice was received and it

was not replied to by the Corporation. It is not open to the parties to

take a different stand at different stages. In the instant matter, these

questions cannot be taken up by Janhit Manch, and the Corporation

has not come up in the appeal against the decision dated 13.5.2013 of

the High Court and has complied with the order bypassing the order

dated 12.9.2013. The Corporation is not before us in the appeal. It is

48

only Janhit Manch agitating the matter. Janhit Manch has preferred

the special leave petition in this Court as against the impugned

judgment and order of the High Court  deciding  the second PIL and

SRUIL has come to this Court and not the Corporation. As against the

subsequent decisions taken by the Corporation according to the

impugned judgment and order, Janhit Manch is before us.

66. Because of the discussion above, we are of the considered opinion

that firstly, the finding of the High Court concerning the illegality of the

notice  dated  7.5.2011  is  not sustainable  on  merits. In  our  opinion,

there was substantial compliance with Form, and the purpose of giving

notice is only to enable the Commissioner to inspect and ensure that

the construction raised is as per the sanctioned plan. There is

admission made by the witness of the Corporation that the entire

construction is as per the sanctioned plan and since the Commissioner

failed to inspect after notice, thus deemed permission came into being;

as such, it was open to SRUIL to raise the construction of PPL up to

16th floor. There was no illegality in the same.

67. Coming to the submission that construction up to the plinth level

had not been completed by 7.5.2011 when the architect gave the notice.

The notice was given about the PPL, which was received by the

Corporation. It was, therefore, open to the Commissioner to inspect and

49

to ensure whether the construction work was done up to the plinth

level, and it was as per the sanctioned plan. After that, to decide within

15 days of the notice whether to grant permission for further

construction or to refuse it. Thus, when it was open to making

inspection as provided in the notice,  it  having not been done by the

Commissioner,  it is not open to the Corporation to contend that the

work has not been completed up to the plinth level, as it was open to

verify the fact on the spot which was not done.  There  is nothing to

doubt the claim of SRUIL for the reasons to be mentioned hereafter.

68. It is submitted on behalf of Janhit Manch that on 16.7.2011, a

notice was issued to SRUIL, and an inventory prepared on 22.7.2011 in

which it was mentioned that the work of PPL tower was in progress up

to  plinth, as  per commencement certificate granted.  Therefore, it is

submitted that the construction of the plinth was not complete even on

22.7.2011.  Our attention  has also been  drawn  on  behalf of Janhit

Manch to report dated 11.11.2011 in which it has been mentioned that

the work of the PPL is found to be carried out up to the plinth level.

Corporation has issued a notice dated 29.11.2011 to SRUIL concerning

the  public  parking lot. In the  notice  dated  29.11.2011, it  has  been

mentioned that the construction has not been completed beyond the

plinth level as such why the permission should not be revoked, whereas

the inventory dated 14.12.2011 of the Corporation indicates that the

50

work up to 6th  floor of PPL is carried out. On 14.12.2011, the

Corporation has issued second stop­work notice. On 19.12.2011, notice

under the MRTP Act was issued.  It  was mentioned that the work of

construction of PPL tower, 1st  to 6th  floor (entire), and 7th  to 9th  floors

(Part) is beyond CC granted. Thus,  it  was mentioned by Corporation

that by 19.12.2011, up to 6th­floor work was complete and 7th  to 9th

floors were in progress; whereas in the order of the court dated

24.12.2011 which is 4 to 5 days after that, the fact is mentioned that

the work has been completed up to the 9th floor. The Court granted the

interim injunction because of the deemed permission, according to the

notice dated 7.5.2011, to complete the remaining work.

69. It is pertinent to  mention  here that the  witness examined  on

behalf of the Corporation Mr. Ajay Sadanand Chawan stated in para 2

of the examination quoted above that so far as completion of the RCC

slab at each floor, there should be an interval of 2 to 3 weeks which is a

correct statement.  In order to complete the RCC slabs up to the 7th

floor, reasonable time of 4 to 5 months is required. It is also pertinent

to mention here that an affidavit has been filed on behalf of the

Corporation on 4.5.2012. Para 4 of the affidavit filed by the Corporation

is as under:

“(v) I submit that another Stop Work Notice dated 16   th   July 2011 was issued by these respondents to respondents no.5 for carrying out the work by misrepresenting by way of showing amalgamation of leasehold and freehold plot, but the same was withdrawn on 11   th   November 2011 as the same was rectified by the Respondent no.5 and has given a

51

registered undertaking.  The respondent, no.5,  was also directed to deposit a sum of Rs. One Crore with MCGM.   The Respondent NO.5 has also agreed to convert their freehold land to a leasehold land with the lease of 30 years as against the existing lease of the leasehold land of 999 years.   The said order is not in respect of the construction of public parking building, which to subject matter of the present petition.”                                

(emphasis supplied)

70. It has been clearly admitted that show cause notice dated

16.7.2011 did not relate to PPL, and it was withdrawn on 11.11.2011,

and it related to other  parts of the  plot of  SRUIL.   In view  of the

aforesaid clear admission it is apparent that there is misrepresentation

made by Janhit Manch that this show cause notice related to PPL, in

fact, same is not related to PPL, as admitted by the Corporation in its

affidavit; and secondly when it has been mentioned in the notice dated

11.11.2011 that the work up to  plinth  level  only  was complete, the

aforesaid fact was wrongly mentioned as in the notice dated

14.12.2011, issued by the Corporation after few days, it was mentioned

that the work up to 7th  floor had been completed. It passes

comprehension when on 14.12.2011, the Corporation mentions that the

work had been carried out up to the 6th floor, and on 19.12.2011, it has

also been mentioned that it  has been completed up to 6th  floor,  and

from 7th to 9th storey was in progress, how overnight RCC construction

of the various floors could have been completed without lapse of 2 to 3

weeks for each of storey which is a minimum period, as admitted on

behalf of the Corporation by its witness also. Thus, obviously, the work

52

up to the plinth level had been carried out by 7th May 2011, the date on

which notice was given and deemed permission came into force on the

expiry  of  15  days.  Otherwise,  7th  to  9th  floors  would  not  have  been

constructed by 19.12.2011. After that, the total days available to SRUIL

were 210 till 19.12.2011. Thus, construction up to the 9th floor is bound

to take at least 5 to 6 months even if it is done at a fast speed, and it

also included the monsoon season, which also intervened in­between

when work is slow or halted. It passes comprehension when on

11.11.2011; it was mentioned that work was only up to the plinth level,

how within 35 days, a total of 9 floors could have been constructed, one

floor every 3 days. Thus, there was something grossly amiss about what

was happening on the part of the Corporation, and absolutely wrong

facts had been mentioned in the inventories, which are contradicted by

the facts mentioned in the notice for demolition and also by the

minimum time required for construction of each floor. Thus, no reliance

can be placed on the inventory dated 22.7.2011, and stop work notice

dated 16.7.2011 was not related to PPL. Thus, it cannot be said that

the work had been carried out in violation of stop­work notice dated

16.7.2011 as submitted on behalf  of  Janhit Manch. The submission

has no legs to stand, and is hereby rejected.

71. In the inspection report dated 22.7.2011, it has not been

mentioned what is the name of the representative of SRUIL who was

53

present on the spot. Nor is it mentioned in the subsequent report of

November 2011. The Corporation has falsely mentioned in the notice

dated 29.11.2011 that the work of PPL had not been carried out beyond

the plinth level on 29.11.2011.  How within 19 days, construction of 9

storeys could be completed, can only be explained by some superpower,

and it appears to be a fairy tale. It appears that anyhow or somehow,

the Corporation sat over the intimation dated 7.5.2011. The

Commissioner did not inspect the plinth of PPL thereafter, and

concerning the residential portion, the stop­work notice dated

16.7.2011 had been issued. Notice was withdrawn on 11.11.2011. After

that, the  notice  was issued concerning  PPL  by  mentioning  patently

wrong facts on 29.11.2011 for reasons best known to the Corporation.

We are constrained to observe that the case reflects some severe kind of

rivalry and distortion of facts. There was an attempt made to ensure

that the building is delayed or is demolished by way of filing the PIL one

after the other, taking different grounds at different stages, many

interventions have been filed. The Human Rights Federation had also

attempted to intervene in this Court. Though earlier, a PIL, which was

filed by it on 9.5.2014, was dismissed as withdrawn on 7.11.2014 to

approach an appropriate forum by way of filing appropriate

application/representation. The said intervenor also filed an SLP before

this Court challenging the impugned judgment and orders dated

22,25,27.1.2016 passed by the High Court. This Court has rejected the

54

prayer, dismissed the SLP filed by the petitioner to avail of any other

remedy.  After that, the  intervention application has been  filed.  The

intervenor cannot enlarge the scope of PIL.   We have no hesitation in

rejecting the intervention application filed on behalf of the said

Federation.

In re: whether construction of PPL is limited up to 4 upper floors because of Circular dated 22.6.2011?  

72. It is submitted on behalf of Janhit Manch that as per DCR 33(24)

introduced w.e.f. 20.10.2008, "public car parking lot scheme" was

brought into effect. Thereunder for a PPL constructed on a plot of land

and handed over free of cost to the Corporation, the plot

owner/developer was entitled to receive incentive FSI  inter alia  to the

extent of 50% of the area of the PPL handed over by him. The

unrestricted construction of PPL followed under the said Regulations.

73. It was submitted on behalf of Janhit Manch that the Government

had issued a Circular on 22.6.2011 to limit the PPLs to ground plus

four upper floors plus two basements. Thus, in the light of the Circular

mentioned above,  notice has been issued by the Corporation for the

demolition of floors and why commencement certificate should not be

modified or revoked. Notice was issued on 29.11.2011. The counsel has

submitted that the notice dated 16.7.2011 was also issued. The

Corporation pursuant to a direction issued in PIL No. 43/2012 passed

an order on 12.9.2013 relying upon the Circular that construction from

55

5th to 15th floors of the PPL was not in consonance with the Circular of

2011. Mr. Ahmadi also submitted that the draft amendment was

proposed  to  amend Regulation 33(24)  on 19.3.2012.  SRUIL had not

submitted any modified plan despite the direction of the Corporation.

Later on, an amendment had been incorporated on 6.8.2014 in DCR

33(24),  restricting the height as mentioned in the Circular.  As such,

construction is illegal, and its regularisation could not have been

ordered.  

74. The submission is untenable. We have gone through the various

orders passed by the High Court in which aforesaid circular of 2011

has been quashed as the Development Control Regulations, 1991 are

statutory in nature and it was not open to issue any direction which is

executive in nature, either by the State Government or the Corporation

in derogation to the statutory provisions. When Regulation 33(24) was

in vogue, development permission had been granted to SRUIL in the

year 2010. The provisions of DCR 33(24) containing no restriction on

the number of floors of PPL, came into force on 20.10.2008.

Development permission has been granted on 18.6.2010 after 1 year 10

months and thereafter commencement certificate had also been granted

on 1.10.2010  with respect to PPL and  notice under  which  deemed

permission accrued under DCR 6(4) had been served on 7.5.2011 by

the Architect.   Once deemed permission accrued to SRUIL on lapse of

56

15 days, the construction had been completed in 2012 before the

amendment was made in the Regulations in 2014. The order of

regularisation was not necessary because of deemed permission. Thus,

in our opinion, the High Court has rightly held that the decision of the

Corporation applying the said Circular was impermissible as it did not

have the force of law, and it stood quashed by the High Court in other

cases. Thus, the submission made by Mr. Ahmadi stands repelled.

75. It could not be said that the Circular of 2011 was supplementary

to DCR 33(24). It  was clearly in derogation to it  and could not have

prevailed over a statutory provision. It was not necessary to question it

in the present petition by SRUIL as it has no force of law and has been

rightly quashed by the High Court in other cases.

In re:  whether the sanction  of the  PPL  building by  way  of an endorsement of commencement certificate is illegal?  

76. Mr.  Ahmadi  also submitted that initially, IOD was  granted  on

24.1.2005. After that, there was an amendment to the residential

building on 12.7.2005, and again, there was an amendment of the plan

for construction of a residential building on 7.11.2007, 2.2.2009, and

11.8.2009. SRUIL amended the plans from time to time for a residential

building in question. On 8.2.2011, the plan for residential building was

sanctioned for 56 floors. Because of the aforesaid, it is submitted on

behalf  of  Janhit Manch that it is  a case of  departure of  substantial

57

nature from the initially sanctioned plan, DCR 6(5) governs the

deviation during construction. Even if the deviation is within the ambit

of Regulation 6(5), the sanction is necessary under sections 337 and

346 of the Corporation Act.  

77. When we examine the submission, it is apparent that the

development permission has been granted. The residential building

plan has been approved. The commencement certificate was endorsed

from time to time. Amendment was made on 8.2.2011, and

commencement certificate was again endorsed on 8.2.2011 under DCR

33(24). The PPL policy came into force in 2008, and its development

plan was sanctioned in 2010, and commencement certificate had been

granted on 1.10.2010. The reliance has been placed on Regulation 6(5),

the same is extracted hereunder:  

“6. Procedure during construction:­

(5) Deviation during constructions:— If during the construction of a building, any departure of a substantial nature from the sanctioned plans is intended by way of internal or external additions, sanction of the Commissioner shall be necessary.  A revised plan showing the deviations shall  be submitted,  and the procedure  laid down for the original plans heretofore shall apply to all such amended plans. Any work  done in contravention  of the sanctioned  plans,  without  prior approval of the Commissioner, shall be deemed as unauthorised.”

78. It is apparent from the aforesaid Regulation 6(5) that the same is

applicable during the construction of the building, and any departure of

substantial  nature from the  sanctioned  plan  can  be  allowed  by the

Commissioner. The provisions of section 337 do not restrict the ambit

58

and scope of Regulation 6(5). Initial permission had been obtained for

development, and during construction, further variation could have

been made. The provision of section 346 is of no help as, at no point in

time, the  development plan  had  been  disapproved. The question of

modifying disapproval  is not germane. The submission raised by Mr.

Ahmadi is held to be devoid of substance and cannot be accepted.  

In re: Refuge Area

79. Janhit Manch submitted that the order dated 3.8.2016 passed by

the Municipal Commissioner concerning the refuge area is illegal. It was

further submitted that in the refuge area, occupants could take refuge

and also can be rescued by the fire officers. Access to refuge area has

been allowed, which is absurd that a disabled person or an older person

will wait outside the flat, who stay at the 56th floor of the building to be

rescued by the fire officer in case of a fire in the building, access to the

area is difficult. In the case of senior citizens, disabled persons, small

children in the building, it defies common sense to provide for refuge

areas at such height, which are almost commensurate with the extent

of the habitable area shown and included in the FSI.  It  was further

submitted that the refuge area sanctioned by the Corporation in the

order dated 31.8.2016 is a whopping 39,000 sq.mtrs against the

habitable area of 54715.19 sq.mtrs., that is almost 60% of the habitable

area. The said areas have also been sold to flat buyers under the guise

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of decks/terraces and are, in fact, a device to get the additional

habitable area for sale to flat buyers under the guise of refuge area.

This point was agitated in PIL No.43/2012. The High Court has

disposed of the said PIL by observing that the refuge area was

excessive. It is urged that the Corporation has now accepted the area

was excessive. There was a norm of 4%, and now Corporation has said

that it has  been  now reduced to  23%.   Janhit  Manch  has further

submitted that the High Court in the impugned judgment observed that

the Commissioner should recalculate the refuge area following the

National  Building Code (NBC). It is also submitted that  in the order

dated 31.8.2016, it has been observed that NBC cannot be applied in

toto as the refuge area is already constructed. As the corporation has

granted  permission, refuge  area has  now been reduced  to  23% and

structural columns can be allowed free of FSI in the permissible area

which is illegal, and four full refuge areas in one floor are not necessary

and cannot to be taken as refuge area as they cannot be used in case of

fire. It is submitted on behalf of Janhit Manch that the decision of the

Commissioner is illegal and entirely contrary to DCR 44(7), which states

that the refuge area over 4% of the habitable area has to be counted in

FSI. Reliance has been placed on DCR 43(1), which provides that

Chapter (iv) of NBC, 2005, shall apply unless the matter is otherwise

provided. It is submitted that the reasoning employed by the

Commissioner is perverse. On each floor, there are 4 flats of 4

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bedrooms. Therefore, the maximum occupancy per flat can be

estimated to be about 6­7 persons or at best 10 persons per flat, which

for 4 flats will aggregate to 40 persons. Thus, the occupancy load of 322

persons per floor, to say, is perverse and arbitrary. There is an

arithmetical mistake done while calculating the area. It is further

submitted that as refuge areas have been provided for four flats, in case

of an emergency like a fire, the fire brigade will  find it impossible to

access 144 different areas at the same point of time. It may not be in

the interest of inhabitants. It is further submitted that the Chief Fire

Officer has permitted to provide glass curtain walls on all sides of the

building at refuge floors, regarding the individual refuge floors on the

four floors of the building. The CFO has permitted glass curtain walls in

the rest of the building, which makes the 144 refuge areas inaccessible

and unusable as refuge areas. The areas are shown as refuge areas,

and fire escape passages have been sold as decks/terraces to flat

purchasers and merged with the flats as usable areas. The purpose is

to create a balcony over the terrace. It  was submitted that  merely

because construction has been completed, no equities can be claimed.

80. It is submitted on behalf of SRUIL that the vires of DCR 2(13),

2(42), and 2(44) have not been questioned. The regulations described

above contain a clear and unambiguous provision which was in force at

the relevant time. It is also submitted that Regulation 44(7) is

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significant in this regard. The only requirement is the minimum area of

15 sq.mtrs of a specific width. There is no other restriction on the grant

of refuge area. Regulations in respect of fire and safety are not

exhaustive, and CFO is an expert authority to consider the requirement

of high­rise buildings. It is also submitted that Regulation 44(5) makes

it mandatory for high­rise and special buildings and exempts them from

FSI calculations under DC Regulation 35(2)(d). It is further submitted

that in the NOC granted by the CFO vide order dated 30.12.2006, it has

been directed to provide requisite area as approved in the plan. The

recommendation made by the CFO is the recommendation of an expert,

which has expressly been recognised in DSR 5(ii). The Circular dated

21.9.1993, which is issued by CFO, provides for the size of the refuge

area with the minimum requirement of 4% of the total built­up area

and the size of each refuge area. The built­up area has been defined as

the total built­up area. The circular is not a statutory circular and does

not amend the DC regulations. Regulations are in the form of delegated

legislation, as observed in  Pune Municipal Corporation & Anr. v.

Promoters & Builders Association & Anr. (2004) 10 SCC 796. Directions

issued by the Urban Development Department dated 2.12.1993

required the Municipal Commissioner to withdraw the guidelines issued

by the CFO as they were not in conformity with the DC Regulations. It

is urged on behalf of SRUIL that DC Regulations cannot be amended

except by following the procedure under the Town Planning Act under

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section 37. Executive Circulars cannot amend the regulations as

observed in  Godrej and Boyce Manufacturing Co. Ltd. v. State of

Maharashtra & Ors.,  (2009) 5 SCC 24. Thus, relying on circular, the

submission that the refuge area as recommended by the CFO and the

corporation is excessive and contrary to DC Regulations is erroneous

and incorrect.

81. The determination of the refuge area was done by the CFO, who is

the competent and technical authority.  The decision of  the CFO has

been revisited by 3 successive Commissioners and has been confirmed

while approving the sanctioned plan merely because some

apprehension was raised about possible misuse of the refuge area. It is

impermissible to  revisit the said decision.  SRUIL submits  that  while

order dated 31.8.2016 allowed free of FSI of 16262.06 sq.mtrs, that is

the area at the external periphery and has further directed that this

should be mentioned in and prominently displayed in the building. In

Indore Municipal Corporation & Anr. v. Dr. Hemalata & Ors.,  (2010) 4

SCC 435, possible misuse of the refuge area had been considered, and

the court observed that based on possible misuse, the planning

permission cannot be questioned nor can be revoked. This Court has

observed:  

“14.  The  fact that the sanction  is for  a residential­cum­commercial purpose is not disputed by the respondents. They have never claimed that they will use the building contrary to the permissible user. Even before the completion of the construction and obtaining of occupation

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certificate, without issuing a show­cause notice alleging such misuse, an order has been issued alleging a violation of the permitted user. There is  no occasion for the second  appellant to  assume  that the respondent is likely to violate the sanctioned user. After the issue of occupancy certificate, if there is any violation of sanctioned use, it is always open to the Municipal Corporation to take appropriate action in accordance  with law  at that  stage.  The finding in the  order  dated 11.4.2000 that there has been a violation of the Rules in this behalf, is unwarranted and at all events premature.”

82. It is further submitted on behalf of SRUIL that Maharashtra

legislature has passed an Act known as the Maharashtra Fire

Prevention & Life Safety Measures Act, 2006, which has received the

assent of the President on 5.2.2007. Section  3 of which mandates

owners to provide for fire prevention and life safety measures and also

prescribes a stringent penalty for non­observance of such conditions.  A

Director or Chief Fire Officer has been empowered to prescribe

measures  for fire  prevention and  life  safety  measures.   It is further

urged that the National Building Code is in respect of the fire protection

requirement of high­rise buildings (15 meters and above). As per clause

C­1.11 provisions contained in clause 4.12.3 shall apply for buildings

except for multi­family dwellings, refuge area of not less than 15 sq.m.

shall be provided on the external walls. Clause 4.12.3 of the National

Building Code does not stipulate 4% as a requirement of  the refuge

area. Even if the NBC provides that anything in excess of requirement is

to  be counted  in FSI and that refuge area  in excess of  4% is  to  be

counted  in FSI, it is  submitted that it  would require  amendment of

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DCRs 35 and 44(7) by following the procedure under section 37 of the

MRTP Act.

83. When we consider the order that has been passed by the

Municipal Commissioner pursuant to the impugned judgment passed

by the High Court, re­determining the refuge area, it has been reduced

to 23% only. The CFO has considered the higher requirement of

building and providing a separate refuge area for each of the flat that is

to say that four refuge areas on each floor, one attached to each flat,

has been approved by the CFO and the corporation. The permission

was granted way back in the year 2006 and the inspection note dated

11.11.2011 indicates that the construction of the residential building

had been carried out up to a height of 180 meters  i.e., 36th  floor, the

permission  was  granted in  2006  and  commencement certificate  has

also been issued from time to time as mentioned above. The

construction of the residential building had been raised to the 36 th floor

in  2011,  and  Janhit  Manch awakened the first time to file  PIL  No.

43/2012 in the High Court.  Thus,  it was a belated petition. For fire

safety, with respect to the refuge area, the view of the Fire Safety Officer

has to prevail not  ipse dixit  whether it would be appropriate to have

more area or the lesser cannot be said to be acceptable which appears

to be a hang­over,  the objection appears to be more the outcome of

some grudge harboured by unknown hands behind Janhit Manch.

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84. The objections have been raised on behalf of Janhit Manch

concerning the height of service floor and elevation features like flower

beds,  ornamental  projection, servant toilets,  and structural  columns

concerning which the Commissioner, Municipal Corporation has given

in extensive details the reasons for the decision rendered by it.  This

Court is not an expert in the field of determination of refuge area and in

our opinion, when Corporation and Chief Fire Officer had granted

permission, it cannot be said that any tremendous public purpose is

going to be served by entertaining the belated objections which appear

to be the outcome of some business rivalry between warring groups. We

find the order passed by the Municipal Commissioner dated 31.8.2016

with respect to refuge area cannot be said to be illegal or arbitrary in

any manner in the facts and circumstances of the case, mainly due to

the fact that permission had been granted by the CFO as well as the

corporation which has been questioned belatedly. The order dated

31.8.2016 is upheld as we are not inclined to interfere on the aforesaid

grounds in the peculiar facts and circumstances of this case.

In re: order of the Additional Municipal Commissioner dated 10.11.2016 and the notice under section 51 of the Act :

85. It is submitted on behalf of Janhit Manch that show­cause notice

dated 29.11.2011 was issued under section 51 of the MRTP Act. A reply

was filed on 14.12.2011 in which stand was taken that provisions of

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section 51 are not applicable,  and despite the notice,  SRUIL did not

stop the work as such the notice for demolition was issued on

19.12.2011.  Ultimately,  pursuant to the  direction issued in  PIL  No.

43/2012, it was decided by the Municipal Commissioner on 12.9.2013

that PPL above 5th to 15th floors was not in consonance with the circular

of 2011. Thus, no incentive FSI would accrue. It was submitted that the

corporation took the stand that no decision was pending on show­cause

notice dated 29.11.2011, as stated in the affidavit dated 26.2.2014. The

High Court in the impugned judgment held that the Commissioner was

required to re­work the FSI; hence, SRUIL ought to have submitted the

modified plans. As SRUIL submitted no fresh proposal for development

permission, the application for regularisation was not in compliance.

On 10.11.2016, the Additional Municipal Commissioner passed an

order deciding the show­cause notice dated 29.11.2011 and held that

the construction of the PPL had substantially progressed, and as such,

the entire PPL can be regularised, is contrary to law.

86. We have held there was deemed permission for PPL under DCR

6(4) as per notice of Architect dated 7.5.2011; thus, the submissions

raised cannot be accepted. Moreover, it is not necessary to go into the

question of whether the notice dated 29.11.2011 survives or not for the

decision,  as  we have held that there  was deemed permission.  Thus,

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there was no question of regularisation of the PPL. The submissions are

devoid of substance and as a result of this repelled.

87. We have not accepted the finding of the High Court concerning

deemed permission as to PPL. Thus, the findings recorded in the

judgment and order and the submission raised on that basis by Janhit

Manch, cannot be said to be sustainable. The consequent order of the

Corporation in that regard falls.

88. We place it on record that we have examined the matter on merits,

notwithstanding that we are not satisfied with the bona fides of PIL, as

the litigation has a chequered history and has several rounds.  Hence,

we ignore the aforesaid aspect.

89. In the circumstances, we have no hesitation in setting aside the

order of the High Court in part and also set aside the finding recorded

by the High Court that no deeming permission accrued under

Regulation 6(4) of Development Control Regulations, 1991. In our

opinion, deemed permission accrued, and concerning the determination

of refuge area as per order dated 31.8.2016 passed by the Municipal

Commissioner, no interference is called for. Order dated 31.8.2016

passed by  the  Municipal  Commissioner  regarding  the  refuge  area  is

upheld.  Petitions filed by Janhit Manch – PIL  [L]  No.133/2015, T.C.

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No.271/2017 and T.C. No.6/2018 deserve dismissal and are, as a

result of this, dismissed.

90. Let the Corporation take over PPL and proceed further to decide

concerning 13 floors, i.e., 44 to 56 floors of residential building within

one month from today.  

………………………..J. (Arun Mishra)

New Delhi; ……..…………………J. October 24, 2019. (Vineet Saran)