S.S. Shinde, J.
1. Rule. By consent, rule made returnable forthwith. Counsel for respective respondents waive notice. By consent, heard finally forthwith.
2. Writ Petition (St.) No. 10937 of 2012 is to issue a Writ of certiorari or any other appropriate Order or directions in the nature of writ of certiorari thereby quashing and/or setting aside the impugned order dated 9th April, 2012 passed by the respondent No. 2 rejecting the petitioners' proposal for regularization. (Exhibit-A). The petitioners have sought further relief to issue a Writ of Mandamus or any other appropriate writ, order or direction in the nature of Writ of Mandamus thereby seeking directions to the respondents to reconsider the proposal for regularization in respect of the petitioners' property i.e. building known as Green Heritage, situated at Plot Nos. 79 and 80, Sector20, Kharghar, Navi Mumbai, on the basis of the material placed on record and accept the same in accordance with law.
3. The first petitioner is a Partnership Firm. The second petitioner is one of the Partners of the first petitioner firm. The first respondent is the Town Planning Authority declared for the area designated as a site for the new Town of New Mumbai by the Government of Maharashtra in exercise of its power under subsection 1(3)(A) of Section 113 of the Maharashtra Regional and Town Planning Act, 1966 (For short, "MRTP Act, 1966"). The second respondent is the Managing Director and Vice-Chairman of the first respondent Company. The third respondent is Officer of the first respondent and is performing and exercising powers as vested under him in the MRTP Act, 1966. The respondent Nos. 1, 2 and 3 being the new Town Planning Development Authority declared for the new Town of Navi Mumbai by the Government of Maharashtra is covered under the definition of "State" under Article 12 of the Constitution of India and amenable to the jurisdiction of this Court.
4. The challenge of the petitioners is to the order dated 9th April, 2012 passed by the respondent No. 2 thereby rejecting/refusing the proposal dated 22nd March, 2012 submitted by the petitioners for regularization of some irregularities of the structure in respect of the building Green Heritage constructed on Plot Nos. 79 and 80, situated at Sector20, Kharghar, Navi Mumbai. The other two connected writ petitions are also arising out of the same subject matter impugned in this petition in relation to the property mentioned hereinabove and therefore, all the petitions are being heard together.
5. It is the case of the petitioners that, by Agreement to Lease dated 22nd June, 2005, the first respondent granted license to the first petitioner to enter upon land bearing Plot NO. 79 in Sector20 of Kharghar, Navi Mumbai admeasuring 2890.13 square meters for the purpose of erecting a building or buildings to provide for commercial cum residential purpose on the terms and conditions contained therein. By another Agreement to Lease dated 6th September, 2005, the first respondent granted license to the first petitioner to enter upon land bearing Plot No. 80 in Sector20 of Kharghar, Navi Mumbai admeasuring 3856.53 square meters for the purpose of erecting a building or buildings to provide commercial cum residential purpose on the terms and conditions contained therein. The copies of the said agreements are placed on record by the petitioners.
6. It is further case of the petitioners that, the first respondent made application to the third respondent for Development Permission for residential cum commercial buildings to be erected on Plot Nos. 79 and 80, Sector20, Kharghar, Navi Mumbai. By letter dated 23rd January, 2006, the first respondent granted Development Permission to the first petitioner to construct residential cum commercial building on the said plots and forwarded Commencement Certificate as required under Section 45 of the MRTP Act, 1966.
7. It is the case of the petitioners that, the third respondent in continuation of the first commencement certificate dated 23rd January, 2006 issued another commencement certificate dated 15th June, 2006 for carrying out development work on the said building.
8. According to the petitioners, as per sanctioned plan and as per the terms and conditions levied by the respondents, the petitioners have started construction work on the said plot. By letter dated 10th May 2006, the Architect of the petitioners certified the completion work up to the plinth level for Cafeteria for residential cum commercial building on the said plots. By letter dated 21st June, 2006 M/s. Dimensions, the petitioners' Architect certified the completion of 1st slab for Cafeteria for residential cum commercial building on the said plot.
9. It is the case of the petitioners that, by letter dated 2nd March, 2009 their Architect M/s. Dimensions certified the completion work. The said building consist of four Wings namely A, B, C and D Wings and consists of Ground + 21 upper floors on the said plots. It is further case of the petitioners that, their Structural Engineer and R.C.C. Consultant A.G. Gokhale and Associate issued certificate for stability of the said building including the certificate of Earth quake stability in respect of the said building. It is further case of the petitioners that, by letter dated 10th February, 2009 Shree Enterprises Licensed Plumber certified that the plumbing work has been done as per the rules and regulations. It is further case of the petitioners that, on payment of Drainage Charges, on 23rd January 2009 the Executive Engineer of the second respondent issued Drainage Connection Certificate to the petitioners in respect of the buildings situated on the said plot. The Chief Health Officer of the second respondent has issued No Objection dated 26th May, 2009 to the petitioners. The Chief Controller of the Unauthorized Construction of the second respondent issued No Objection Certificate for residential cum commercial building constructed on the said Plot to the petitioners by a letter dated 6th June, 2009.
10. It is further case of the petitioners that, on 31st July, 2009 the Fire Officer of the first respondent issued No Objection to release Occupation Certificate occupancy in respect of the building constructed by the petitioners on the plot. It is further case of the petitioners that, on 12th May, 2009 the second respondent issued No Outstanding Dues Certificate to the petitioners in respect of the said plot.
11. The petitioners state that, they have completed the entire work and have also obtained all the necessary certificates and no objections for grant of Occupation Certificate. The petitioners' Architect M/s. Dimensions on 13th August, 2009 applied to the second respondent for issuance of occupation certificate in respect of the building constructed on the said plots.
12. It is the case of the petitioners that, they were shocked and surprised to receive notice dated 13th September, 2011 under Section 53 subsection (1) of the MRTP Act, 1966 from the third respondent that, their application for occupation certificate made by their Architect was refused by letter dated 10th September, 2009. The petitioners by their Advocate's letter dated 14th October, 2011 replied to the notice and pointed out that they have not received any refusal of the application of their Architect dated 10th September, 2009 as alleged in the notice dated 13th September, 2011.
13. It is the case of the petitioners that, the first respondent by its letter dated 14th October, 2011 rejected the application made by Architect of the petitioners on the ground that same cannot be considered.
14. It is submission of the petitioners that, the alleged unauthorized development work carried out on the said plot is of such nature which can be regularized by the respondents and the respondents have power to regularize the said alleged unauthorized development work in respect of the said building.
15. The petitioners further state that, the third respondent had passed order dated 30th January, 2012 under Section 53(6)(b) of the MRTP Act, 1966 and directed the petitioners to remove the alleged unauthorized construction as mentioned in the schedule of the said order and drawing annexed thereto and to restore the construction in conformity within seven days from the date of the said order.
16. Being aggrieved by the said order dated 30th January, 2012 the petitioners filed writ petition being Writ Petition No. 1234 of 2012, challenging the impugned notice 13th September, 2011 and the impugned order dated 30th January, 2012 on the various grounds. The aforesaid writ petition was listed for hearing and during the course of hearing, the petitioners came to know for the first time that, their application for grant of occupation certificate was refused under Section 45(1)(iii) of the MRTP Act, 1966. It is further case of the petitioners that, on next date of hearing of the said writ petition, by order dated 9th March, 2012, the joint measurement of the said building was directed in view of the petitioners' grievance that the petitioners site was not physically inspected. The joint inspection was thereafter conducted on 14th March, 2012 in presence of the parties and their representatives as directed by this Court in the aforesaid writ petition. The copy of the report of the joint inspection of the said building dated 14th March, 2012 is placed on record by the petitioners alongwith the present writ petition. According to the petitioners, the aforementioned report of the joint inspection was placed on record in Writ Petition No. 1234 of 2012 and after perusing the said report and submissions made by the petitioners that, they intended to submit proposal for regularization of the alleged irregularities alleged to have been committed by them with revised plans within the parameters of the Development Control Rules and by acquisition of additional FSI if necessary, this Court by an order dated 16th March, 2012 granted the application and prayer of the petitioners. The petitioners, accordingly, submitted proposal for regularization of the portion which can be regularized by purchasing FSI of the adjoining plot if permissible in law.
17. The petitioners submitted proposal for regularization of the portion of the said building which according to the CIDCO policy for permitting the FSI under tree belt and FSI of odd shaped/irregular/unbuildable plots on the adjoining. The petitioners requested the respondents to consider regularization , however, the third respondent vide order dated 9th April, 2012 has communicated the petitioners about the order passed by the second respondent that the request of the petitioners for allotment of FSI of adjoining plot is rejected by the competent authority and further to act upon the notice dated 30th January, 2012.
18. It is case of the petitioners that, there is an odd shaped plot belonging to the respondent No.1 Corporation which is adjoining the petitioners' plot being Plot Nos. 79 and 80. The said plot, according to the petitioners, is reserved for garden and is otherwise unbuildable. It is further case of the petitioners that, in accordance with Rule 4 of Chapter III of the Navi Mumbai Disposal of Lands (Amendment) Regulations, 2008 framed by CIDCO for disposal of plots, the Managing Director of CIDCO i.e. respondent No. 2 herein, is empowered to allot odd shaped land to the adjoining licensee or allottee, which otherwise cannot be disposed off for the reason of non availability of access or is not developable due to its odd shape or other reasons, for the same use and with same FSI the adjoining plot has. It is the contention of the petitioners that, the aforesaid plot apart from being odd shaped land is also unbuildable and not developable in view of the fact that it is shown as reserved for a garden. It is the contention of the petitioners that, CIDCO has permitted the user of FSI of odd shaped/irregular/unbuildable plots to the adjoining plots in respect of Plot No. A34/ 32, Sector12 and Plot No. 9 in Sector6 at Kharghar. It is further contention of the petitioners that, the respondent No. 1 Corporation has granted proposal for permitting use of FSI of land under the tree belt in similar cases and that the petitioners were informed that in respect of Plot NOs. D67, D68, and D69 of Sector12, Kharghar the tree belt was permitted to be merged with the said plot only for FSI purpose. Therefore, the petitioners made a request on similar line in their proposal for regularization by (a) offer to purchase the FSI in respect of adjoining odd shaped plot which is otherwise unbuildable on par with plot No. A34/ 32 in Sector 12 and Plot No. 9 in Sector 6 at Karghar and (b) for utilizing the FSI available by merging the adjoining tree lines with the petitioners' plots against payment of premium which was permitted by the CIDCO in case of Plot Nos. D67, D68, and D69 as stated hereinabove.
19. It is also contention of the petitioners that, no personal hearing is given to the petitioners by the respondent No. 2 and proposal of the petitioners for regularization is rejected in its entirety without hearing the petitioners. It is further case of the petitioners that, the respondent No. 2 on the basis of his subjective opinion observed that, the said plot could not be termed as odd shaped plot and therefore, the petitioners' proposal for purchasing FSI of the abutting plot was allegedly not in consonance with the Regulations referred to hereinabove. It was further observed by the respondent No. 2 that, odd shaped plot if available is normally allotted to the adjoining plot holder before development of the plot. However, in the petitioners' case, since the petitioners were claiming the said plot for regularization and to avoid action under the MRTP Act, their request could not be considered. The respondent No. 2 has further observed that, the request of the petitioners is contrary to the spirit of the Navi Mumbai Disposal of Lands (Amendment) Regulations, 2008, particularly Rule 4 subrule (iv) of Chapter III thereof.
20. The petitioners state that, within parameters of the Development Control Rules by acquiring additional FSI, if a structure can be regularized then it should be the endeavour of the planning authority to permit the same rather than removing the structure which is not beneficial to anybody whatsoever. The provisions of Section 53 of the MRTP Act, 1966 provides for regularization and plot holder is given right to submit a proposal for regularization provided that the same is within parameters as provided in the Development Control Rules. It is case of the petitioners that, the entire approach of the respondent No. 2 that the proposal could not be considered since it was submitted to regularize an unauthorized structure is contrary to the provisions of the Development Control Rules/Regulations, as also the provisions of the MRTP Act, 1966. The petitioners' proposal for merging the tree belt with the petitioners' plot for the purpose of utilization of FSI upon payment of premium, the respondent No. 2 has not even referred to the same in the said order and therefore, according to the petitioners, the request of the petitioners for merging tree belt with the petitioners' plot has not been considered at all by the respondent No.2. It is case of the petitioners that, according to the CIDCO there is some additional construction on each floor of the property which is a ground plus 21 storey building, none of the reports specified the exact area of additional construction on each floor and therefore, it is practically impossible to remove some portion floor wise, particularly when the tenements in the said building are totally sold and are occupied. The petitioners further state that, though only vague details are given by CIDCO of the unauthorized structure and/or extent thereof on each floor, the petitioners in good faith have submitted a proposal for regularization to the extent of the entire area which is claiming to be unauthorized by the respondent No.1 within the framework of the policy of regularization. It is case of the petitioners that, the respondent No. 2 has prejudged the entire issue and has without considering the precedents in the matter cited by the petitioners in identical cases, has rejected the proposal for regularization.
21. One Mr. Ravindra Bhaskarrao Patil has filed affidavit in reply on behalf of the respondent Nos. 1 to 3 to oppose the admission of the writ petition. It is stated in the said affidavit in reply that, CIDCO being the New Town Development Authority, has power and authority to dispose of the developed lands on lease within the notified area of Navi Mumbai in exercise of the powers under Section 118 of the MRTP Act, 1966. The CIDCO, in exercise of the powers under Section 118 read with Section 159 of the MRTP Act, 1966, has framed the regulations for disposal of the lands with the previous approval of the State Government, which is known as the New Bombay Disposal of Lands Regulations, 1975. Further the same Land Regulations are modified and known as the Navi Mumbai Disposal of Lands (Amendment) Regulations, 2008. The power of disposal of land is exercisable by the Board of Directors of the Corporation under Section 291 of the Companies Act, 1956. The Board of Directors of the Corporation is vested power and authority under Section 118 of the MRTP Act, 1966 and therefore, Board of Directors of the Corporation is competent to dispose of the acquired land in such manner and subject to such terms and conditions as they may consider expedient for securing the development of the new town ship, in accordance with the proposal approved by the State Government. In result, it is permissible to the Board of Directors of the Corporation to add, amend, alter or supplement any conditions to these regulations, which are conducive and required for the development of the New Town of Navi Mumbai.
22. It is further stated in the said affidavit in reply that, order of the respondent as per Section 149 of the MRTP Act, 1966 is final and cannot be challenged in any suit or proceeding. Notice issued under Section 53(1) and order under Section 53(6) of the MRTP Act, 1966 is final and binding and therefore, the writ jurisdiction cannot be invoked to bypass the legal provisions as it would have set a precedent open to misuse by large number of builders and also lead to cheating of public at large.
23. It is further stated in the said affidavit in reply that, Section 52 of the MRTP Act, 1966 enumerates the types by which a development/construction may become illegal. As per Section 52(1) of the Act, "any person who, whether at his own instance or at the instance of any other person commences, undertakes or carries out development, or institutes or changes the use of any land-
(a) without permission required under this Act;
(b) which is not in accordance with any permission granted or in contravention of any condition subject to which such permission has been granted;
(c) .....
(d) in contravention of any permission which has been duly modified, shall, on conviction....the first commission of the offence.
(2) Any person who continues to use or allows the use of any land or building in contravention of the provisions of a Development plan without being allowed to do so under Section 45 to 47....for the commission of the offence.
24. It is further stated in the said affidavit in reply that, as per Section 53(1) a person constructing such illegal construction has to be served a notice for 1 month. Section 53(1) reads as
"where any development of land has been carried out as indicated in subsection (1) of Section 52, the Planning Authority, may subject to the provisions of this Section serve on the owner a notice requiring him, within such period not being less than one month, as may be specified therein after the service of the notice, to take such steps as may be specified in the notice, (a)
(b) in cases specified in clause (b) or (d) of subsection (1) of Section 52, to secure compliance with the condition or with the permission as modified.
(2) In particular, such notice may, for the purpose of subsection (1) require-
(a) the demolition or alteration of any building or other operations; or
(c) the discontinuance of any use land.
(3) Any person aggrieved by such notice may, within the period of specified in the notice and in the manner prescribed, apply for permission under Section 44 for retention on the land, to which the notice relates, and pending the final determination or withdrawal of the application, the mere notice itself shall not affect the retention of the buildings or works or the continuance of such use.
(4) The foregoing provisions of this Chapter shall, so far as may be applicable, apply to an application made under subsection (3).
(5) If the permission applied for is granted, the notice shall withdrawn; but if the permission applied for is not granted, the notice shall stand; or if such....or part of the land.
(6) If within the period specified in the notice or within the same period after disposal of the application under subsection (4), the notice or so much of it stand is not complied with, the Planning Authority-
(a) prosecute the owner for not complying with the notice; and ....Used in contravention of the notice; and
(b) where the notice requires the demolition or alteration of any building or works or carrying out of any building or other operation, itself cause the restoration of the land to its condition before the development took place and secure compliance with the conditions of the permission or with the permission as modified by taking such steps as the Planning Authority may consider necessary including demolition or alteration of any building or works or carrying out of any building or other operations; and recover the amount of any expenses incurred by it in this behalf from the owner as arrears of land revenue.”
25. It is further stated in the said affidavit in reply that, as per Section 44 permission has to be obtained from the planning authority to develop a piece of land and the conditions which necessarily include only the approved plans have to adhered to. Constructing or developing as per the approved plans duly approved by the planning authority is an important aspect of the conditions of the Commencement Certificate so granted as per Section 45. The contention of the petitioners that they constructed as per the plans submitted by the Architect is trying to mislead this Court and is mischievous statement. It is submitted that, the plans as per which construction was carried out were never approved by the respondents. It is further stated that, the plans were approved for the building in dispute on 15th June, 2006.
26. It is further stated in the said affidavit in reply that, the Commencement Certificate was issued on 23rd January, 2006 and the said commencement certificate contained a condition that the Licensee will have to obtain necessary clearance from the Ministry of Environment and Forests, New Delhi, at the time of submitting of the Completion Certificate by the Architect. The developer/Petitioner obtained a letter dated 26th May, 2006 from the Maharashtra Pollution Control Board, Mumbai stating that the Project does not attract EIA Notification dated 7th July, 2004 and the letter of Maharashtra Pollution Control Board was submitted to CIDCO on 29th May, 2006. It is further stated in the said affidavit in reply that, thereafter the petitioner-Developer submitted revised plan for approval and an amended commencement certificate was issued on 15th June, 2006. This was an amended/revised commencement certificate and not a second commencement certificate. The number of floors and the total built up area in both the commencement certificate issued on 23rd January, 2006 and the amended commencement certificate issued on 15th June, 2006 remained unchanged and has reflected to be Ground + 21 floors with a total built up area of 10,094.885 sq. mt. It is further stated that, some internal changes and changes in the number of units was made in the revised plan and for this purpose amended commencement certificate was issued.
27. The respondents further stated in the said affidavit in reply that, after building was constructed, the Architect of the petitioners for the first time applied for occupation certificate on 13th August, 2009. However, as there were shortcomings in the proposal submitted the respondent No. 3 refused permission for the occupation certificate within one month by his letter dated 10th September, 2009. It was therefore, the responsibility of the petitioner-Architect to have removed or fulfilled the shortcomings and submitted proposal for occupation certificate. However, the petitioners did not submit proper proposal for occupation certificate. The respondents stated that, the Additional Town Planning Officer, Shri. Ravindra Bhaskarrao Patil, therefore, had issued a notice under Section 53 of the MRTP Act, 1966 on 13th September, 2011 to the builders. The respondents have placed on record the copy of the said notice dated 13th September, 2011 at Exhibit-C alongwith the affidavit in reply.
28. In response to the notice issued by the respondents, Architect of M/s. Abhishek Builders and Developers submitted a set of drawings in respect of the subject property on 19th September, 2011. The Officers of the respondents inspected the site and found that, drawings submitted were not in conformity with actual construction done at site and also constructed built up area was more than the approved built up area. Since the Builder-Developer failed to take approval, the Chief Controller of Unauthorized Construction was informed to take further steps as specified in Section 53 of the MRTP Act, 1966. It is further stated in the said affidavit in reply that, final notice in respect of unauthorized construction was issued by the Additional Town Planning Officer on 14th October, 2011 and copy of the same was forwarded to the Chief Controller of Unauthorized Constructions for further appropriate action. It is submissions of the respondents that, notice under Section 53(1) was issued after giving more than ample opportunity to the petitioners to submit proposal for occupation certificate alongwith proper and approved plans by CIDCO and not just plans merely prepared by Architect. In the present case, there is clear violation of General Development Control Regulations (GDCR) for Navi Mumbai and hence, excess construction so determined being clearly violative and illegal cannot be regularized under any provision.
29. According to the respondents, as per provisions of Section 52 and 53(1), in case any construction is not in conformity to permission granted under Section 45 a notice under Section 53(1) may be served by the planning authority following a period of one month to act as per the corrective steps in the notice. In the present case, the notice dated 13th September, 2011 had called upon the petitioner-Architect to submit proper plans within one month which were in conformity to the GDCR and having maximum permissible built up area. The notice had also mentioned that the handing over of possession to some residents by the Developer-Petitioner without obtaining an occupation certificate was also violative of the conditions of the Lease. The Developer-petitioners did not submit plans which were in conformity to the proper construction which should have been in conformity to the GDCRs and hence notice u/s 53(6) was issued on 14th October, 2011 which was after the stipulated period of one month.
30. It is further stated that, the issue of regularization of excess construction and Section 53(1) and 53(6) of the MRTP Act, 1966 including the demolition of unauthorized and excess construction has been settled by the Division Bench of this Court in Writ Petition No. 1077 of 2007 decided on 16th December, 2009. The respondents have further stated in the affidavit in reply that, the petitioners have utilized the entire permissible FSI available on the plot/piece of land and hence, there is no scope whatsoever to construct additional area for availability of FSI. The provision of TDR is not applicable to Navi Mumbai and the GDCR does not have any provision regarding TDR. Therefore, under no circumstances can the excess area constructed be regularized and as there is no scope under any law or provision to regularize the construction. It is further stated by the respondents that the petitioners had conducted a joint survey of the unauthorized construction on 14th March, 2012 and the petitioners have accepted the correctness of the survey which confirms the excess and unauthorized construction and which has been recorded by this Court in its order dated 16th March, 2012 in Writ Petition No. 1234 of 2012. It is further stated in the affidavit in reply that, this Court by order dated 16th March, 2012 had ordered the petitioners to be heard, the petitioners-builders submitted a new set of drawings which again were not in conformity to the actual construction. Therefore, the respondent No. 2 after considering the drawings and plans submitted by the petitioner-builders rejected the proposal of the petitioner-builder for not being in conformity to the prevailing provisions. It is submitted that, there is no requirement for the petitioner to be heard orally as whatever has to be stated by the builders is always done only as per the drawings and plans and there is no necessity whatsoever to be heard in person. According to the respondents, they are bound to consider whatever is recorded and submitted on paper and this by itself constitutes the complete opportunity to the petitioner-builder and as such, the contention of the petitioners that no personal hearing is given is frivolous and delaying tactics and to circumvent the main issue. It is further stated in the affidavit in reply that, Managing Director of the respondent No.1 has powers under Regulation No. 4 sub/rule (iv) to allot a plot for such purpose to the abutting and already allotted plot if it satisfies the following conditions : (a) it is odd shaped (b) on non developable area/zone and cannot be used for developable purpose (c) non accessible by any approach. In the present case, the plot demanded by the petitioners is not an odd shaped plot but is in such a shape which can be developed independently. The plot in demand is however currently reserved for a rotary junction which is important aspect from the purpose of town lay out. However, in future, CIDCO in the event of restructuring the town lay out and cancelling the rotary junction this plot which is not odd shaped has the potential to be used independently as a completely developable plot. Further, the plot in demand is also inaccessible but has a direct approach and has a good potential to be developed in the event of the respondent-CIDCO deciding to develop in the future. Therefore, none of the necessary conditions required to be fulfilled are being satisfied in the present case and hence, illegal demand of the petitioners were rightly refused by CIDCO.
31. The respondents have also replied to the contention of the petitioners that, plot Nos. 67 and 68 which were reserved for tree plantation, such plots were allotted to the cooperative society and its FSI was allowed to be used for the construction of such building and hence the petitioners should also be allotted the plot and its FSI be used to regularize the illegal and unauthorized construction of the building in dispute. The respondents have stated that, the petitioner has conveniently and deliberately not pointed out that, plot Nos. 67, 68 and 69 or any other plots mentioned were allotted prior to the commencement of the construction of the building by the Society whereas the petitioners are demanding to regularize their illegal and unauthorized construction which is afterthought. Therefore, there is an essential difference between the plots so allotted to the cooperative societies which was prior to the commencement of the construction and as such approved as per plans by CIDCO whereas the demand of the present petitioners is of the nature to regularize an illegal act which cannot be regularized and which would set a wrong and dangerous precedent in terms of illegal construction in the entire city. In the event, such action is allowed then the builders would be encouraged to construct illegally and then got it regularized by getting an abutting plot amalgamated. It would further become obligatory on the respondents to allow such scheme as it would have set a precedent which would be subject to large scale misuse by such unscrupulous builders.
32. The respondents have further stated in the affidavit in reply that, the petitioners are applying strange logic of regularizing an illegal act in paragraph 33 and 34 of the petition. According to the respondents, the purport of Rule 4(iv) of the NMLDR, 2008 is not allowing for such regularization of illegal construction but in the event of a plot being non developable due to its shape and inaccessibility, even then CIDCO may be able to raise revenue and money be deposited in the public exchequer. However, nowhere it is intended that such raising of money should be at the expense of legalizing such public wrongs and illegal actions. According to the respondents, such removal of unauthorized construction is necessary as a deterrence for such unscrupulous builders who cheat flat owners by building in excess and when the planning authority tries to pursue legal action as in accordance with law, issues of right of third parties are raised by such builders.
33. The respondents in the affidavit in reply have also made reference to the judgment of this Court in the Writ Petition No. 1077 of 2007 dated 16th December, 2009 and stated that, the issue of illegal construction and its subsequent regularization by trying to use FSI by manner of TDR has been well settled by the Division Bench of this Court in the aforesaid judgment. At the cost of the repetition, it is stated in the affidavit in reply that, the respondent No. 2 has passed order after considering all aspects and the provisions of Rule 4 (iv) of the Navi Mumbai Disposal of Lands (Amendment) Regulations, 2008 and the fact that the other plots were allotted preconstruction stage whereas the demand of the petitioners is post construction only for the purpose of regularizing unauthorized construction which is not the intention and objective of Rule 4 (iv) of the aforesaid Regulations and therefore, the respondents have prayed that the petition may be dismissed.
34. The respondents have filed further affidavit pursuant to the direction of this Court on 3rd May, 2012 regarding the allotment of odd shaped land for the purpose of regularization in the context of the Navi Mumbai Disposal of Lands (Amendment) Regulations, 2008. One of the respondents namely Mr. Prakash Nathuram Mhatre, Incharge Manager (Town Services-III) of the respondent CIDCO has filed further affidavit in reply on 4th May, 2012. Paragraph Nos. 1 to 8 of the said affidavit in reply reads thus ;
1. I say that in Writ Petition St. No. 10937 of 2012, this Hon'ble Court heard the matter on 03.05.2012 and was pleased to direct the Respondent herein to file affidavit regarding allotment of odd shaped land for the purposes of regularization in the context of the Navi Mumbai Disposal of Lands (Amendment) Regulations, 2008, with particular reference to the proviso of Regulation 4, which reads as under:
"Provided that the Managing Director may allot odd shaped land to the adjoining Licensee/Lessee, which otherwise cannot be disposed off for the reason of non availability of access or is not developable due to its odd shape or other reasons, for the same use and with the same FSI the adjoining plot has, at the base rate suggested in the Land Pricing and Land Disposal Policy prevailing at the time of allotment of odd shaped land or at the rate at which the original plot is allotted, whichever is higher."
2. I say that the CIDCO, in exercise of the powers under Section 118 read with Section 159 of the Maharashtra Regional and Town Planning Act, 1966, framed land disposal regulations with the previous approval of the State Government, which is known as the Navi Mumbai Disposal of Lands (Amendment) Regulations, 2008, which came into force with effect from 20.11.2008, after publication of the same in the Maharashtra Government Gazette.
3. I say that the Navi Mumbai Disposal of Lands (Amendment) Regulations, 2008, prescribe the mode and manner of allotment of plots for various purposes. Similarly, the CIDCO (Lease of Plots to the Cooperative Housing Society) (Amendment) Regulations, 2008 provides the mode and manner of allotment of plots to the Cooperative Housing Societies. CIDCO is bound to follow the prescribed manner and mode of the said Regulations for the purpose of disposal of lands for various purposes and CIDCO will not deviate from this policy in future, unless the said regulation is modified or amended by following due process of law.
4. I say that prior to coming into fore the amended Regulations 2008, the New Bombay Disposal of Lands Regulations, 1975 was applicable for disposal of lands in Navi Mumbai. Regulation 4 of the said Regulations was permitting disposal of land on individual applications also. However, after coming into force the amended regulations 2008, allotment of land is not permitted on individual applications, except for the allotment of odd shaped lands and allotment of land to Central/State Government, their undertakings, local bodies, Government Autonomous by, Public Charitable Trusts for educational, social cultural, medical, sports activities, religious purpose and to the reputed national/international institutions, R and D establishments, foreign Government consulates.
5. I say that pursuant to the provision made in the Navi Mumbai Disposal of Lands (Amendment) Regulations, 2008, the Respondent herein has not allowed any odd shaped land or any non-developable plot for the purpose of regularization of unauthorized construction or excess construction, after coming into force the said regulation in the year 2008.
6. I say that, on the basis of the said Regulations, 2008, the CIDCO is not empowered to allot such odd shaped land and/or non-developable plots for regularization of such unauthorized construction and/or excess construction and hence, based on the present provisions made in the said Regulations, 2008, even in future, odd shaped land/non-developable plots will not be allotted for the purpose of regularization of unauthorized construction and/or excess construction.
7. I further say that the tree belt adjoining to the Plot Nos. D67, D68, and D69 was not capable of being independently developed and the allotment was satisfying the proviso of Regulation 4 of the said Regulations for allotment of odd shaped land/non-developable land. Therefore, the allotment of the tree belt was made to the adjoining Licensees. I further say that this allotment was not made for regularization of unauthorized and/or excess construction. I further say that as far as the present matter is concerned, the land demanded by the petitioner is a part of rotary junction having independent access and forming part of urban design. Therefore, it cannot be treated as an odd shaped land in terms of proviso of Regulation 4 of the Navi Mumbai Disposal of Lands (Amendment) Regulations, 2008.
8. In the premises, I say that submit respectfully that the Petitioner herein discloses no cause of action to warrant the intercession of this Hon'ble Court."
35. From perusal of the compilation of the writ petition, we do not find any rejoinder by the petitioners to the reply filed by the respondents.
Writ Petition No. 2045 of 2012
36. This Writ Petition is filed by the petitioner, challenging the order dated 30th January, 2012 passed by the respondent No. 2 under Section 53(6) of the MRTP Act, 1966, for demolition of the part of and/or said building constructed by the respondent No.3, known as Green Heritage situated at 7980, Sector No.20, Kharghar, Navi Mumbai and further the petitioner has challenged inaction of the respondent Nos. 1 and 2, to grant occupation/completion certificate in respect of the building in the name of Green Heritage constructed by the respondent No. 3 on Plot Nos. 79 and 80 situated at Sector20 at Kharghar, Navi Mumbai.
37. It is the case of the petitioner that, he has purchased shops tenements in the said building bearing No. 29 and 30 respectively from the respondent No. 3 by allotment letter upon payment of valuable consideration for the aforesaid purchase. According to the petitioners, while purchasing the said shops, they have inspected the plans in respect of the said project duly sanctioned by the respondent No. 1 in its capacity as the Planning Authority and upon being satisfied about the title in respect of the said property and the sanctioned plan, the aforesaid purchase was made. The said building consist of 4 Wings namely A, B, C and D Wings and consists of Ground + 21 upper floors on the said plots.
38. The petitioners state that, there are in all 150 numbers of residential flats, 38 numbers of shops and 1 number of four floored commercial unit in the said building which are purchased by various purchasers. After completion of the aforesaid building, the respondent No. 3 applied for issuance of occupation certificate on 13th September, 2009 through its Architect in accordance with the information given by the respondent No. 3 to the petitioners. The petitioners state that, on inquiries made by the petitioners, they were from time to time informed by the respondent No. 3 that, their application for issue of occupation certificate was pending. In the meantime, however, the petitioners, on their request were given provisional possession of the said shops for carrying out the interiors and the furniture work. The petitioners, however, were shocked and surprised when they became aware that the impugned order dated 30th January, 2012 under Section 53(6) of the MRTP Act,m 1966 was issued by the second respondent. In accordance with the said order, the respondent No. 3 i.e. Abhishek Builders and Developers, was called upon to remove the alleged excess construction made on the said property which was according to the respondent No.1 beyond the sanctioned plan and failing which, it was stated in the said order that, the respondent No.1 would carry out act of demolition of the excess construction at the cost of the respondent No.3. It is the case of the petitioner that, on reading the said order, the petitioner immediately contacted the respondent No. 3 and sought clarification. The respondent No. 3 informed to the petitioner that they have received a notice under Section 53(1) of the MRTP Act, 1966 on 13th September, 2011 which was already responded by the respondent No. 3 through their Advocate's reply dated 14th October, 2011. By the said reply, the respondent No. 3 had denied the allegations made against them by the respondent No.1 and further stated that they were under the impression that their application for occupation certificate was still pending.
39. It is the case of the petitioners that, the respondent No. 3 has shown various permissions and proof of payments including Architect certificate about satisfactory completion of the project. In fact, the Chief Controller of Unauthorized Construction Cell of 1st and 2nd respondent has vide its NOC dated 2nd June, 2009 specifically stated that, it has verified the construction and is satisfied that, there are no unauthorized hutment, structures, debris etc., on plot other than building structure approved by building permission department CIDCO. The petitioners have also stated that, various authorities have granted either permission or NOC and therefore, the application for occupation certificate should have granted. It is stated that, the third respondent has for the said building purpose obtained electricity connection from Maharashtra State Electricity Department and all the purchasers are carrying out the respective work/interior in their respective premises on the basis of the aforesaid electricity supply provided by the MSEDCL under the connection. In the month of October, 2011 the MSEDCL has issued the notice for disconnection of electricity supply to the said building illegally. Some of the purchasers have therefore preferred Writ Petition before this Court and by order dated 17th December, 2011, this Court was pleased to grant status quo against the alleged disconnection. Other facts have been stated in detail by the petitioners in the writ petition. According to the petitioners, the respondent Nos. 1 and 2 are bound to consider the approvals, NOCs and permissions granted by them. Since the respondent Nos. 1 and 2 have not refused or accepted the letter of occupation certificate of the respondent No. 3, the petitioners prayed for grant of deemed occupation certificate.
40. The petitioners have stated that, in any event, their valuable right in respect of the aforesaid shop tenements are accrued in favour of the petitioners who are genuine buyers having purchased the shops premises after inspecting the sanctioned plans. Therefore, any action against the respondent No. 3 which may be proposed by the CIDCO should be independent of disturbing the structure which is built on the basis of a sanctioned plan. Any such action against the structure would cause grave prejudice, irreparable loss, harm and injury to the petitioners who have purchased their shops by spending life time savings. If the action of respondent No. 1 as contemplated in the impugned order is permitted, the petitioners for no fault on them will be sufferers. They are bonafide purchasers for value who have purchased their respective tenements after inspecting the sanctioned plan. Therefore, the petitioners have prayed that, the impugned notices for removal of unauthorized construction as issued by the 1st and 2nd respondents are illegal, invalid and completely without jurisdiction because the same is dehors the approvals and NOCs issued by the 1st and 2nd respondents itself.
Writ Petition No. 2439 of 2012
41. This writ petition is filed by the petitioners with prayer to issue Writ of Mandamus or any other appropriate Writ, Order or Direction under Article 226 of the Constitution of India and further to declare that, the impugned notice dated 30th January, 2012 issued under Section 53(6) of the MRTP Act, 1966 is illegal and bad in law and is required to be quashed and set aside. Further direction is sought to the respondent Nos. 1 and 2 to issue occupation certificate in respect of Green Heritage, Plot Nos. 79 and 80, Sector20, Kharghar, Navi Mumbai. Further direction is sought to provide permanent water connection to the said building.
42. The petitioners are the shop purchasers in the building constructed by the respondent No.3 known as Green Heritage situated at 7980, Sector20, Kharghar, Navi Mumbai. They are also members of the "Green Cooperative Housing Society Ltd. (Proposed)" registered with Registrar of the Cooperative Societies under the provisions of the Maharashtra Cooperative Societies Act, 1960.
43. On careful perusal of the facts and submissions in the writ petition, the facts stated in the petition and submissions are almost identical to other two writ petitions. According to the petitioners, the petitioners are bonafide purchasers for value and they have purchased the said shops by spending life time savings and by taking loan from financial institutions and therefore, the impugned notice for demolition of the said building has caused grave prejudice to the interest of the petitioners. According to the petitioners, the impugned notice dated 30th January, 2012 is not issued as required under Section 53(6) of the MRTP Act. The impugned action of the respondents in acting against issue of occupation certificate of the petitioners' building constructed by the respondent No. 3 on the said plots is illegal, bad in law and is high handed. The building in question is constructed as per sanctioned plans and therefore, the impugned notice/order passed by the respondent Nos. 1 and 2 is not sustainable. The respondent authorities are bound in law to issue occupation certificate to the said building in absence of any reasons or any communication made to the respondent No. 3 for not issuing occupation certificate in respect of the said building within stipulated time as per law. It is statutory duty of the respondent Nos. 1 and 2 to issue occupation certificate to the said building, when all NOCs are issued after completion of the said building in all respect as per sanctioned plans and permissions granted by the authorities. It is stated that, admittedly no notice of any site inspection was ever given by the respondent Nos. 1 and 2 to the respondent No. 3 and according to the settled position of law, any site inspection without notice to the Developer is of no consequence and cannot be relied upon. Therefore, the petitioners have prayed that, this writ petition may be allowed.
44. We have given thoughtful consideration to the rival submissions. With the able assistance of the Counsels appearing for the respective parties, we have carefully perused the pleadings, annexures thereto, affidavit in replies filed by the respondent authorities and also other documents placed on record and relevant provisions of the MRTP Act, 1966 and also the Navi Mumbai Disposal of Lands (Amendment) Regulations, 2008. Our attention was also invited to the various judgments of the Supreme Court and this Court on subject by the Counsels appearing for the respective parties.
45. At this stage, it is apposite to refer to the notice under Section 53 subsection (1) of the MRTP Act, 1966 in respect of the development of residential cum commercial building on Plot Nos. 79 and 80, Sector20, Kharghar, Navi Mumbai issued to M/s. Abhishek Builders and Developers by the Additional Town Planning Officer, Navi Mumbai and Khopta dated 13th September, 2011 and 14th October, 2011 and notice under Section 53(6)(b) issued to M/s. Abhishek Builders and Developers by Mr. R.B. Patil, Additional Town Planning Officer, Navi Mumbai and Khopta dated 30th January, 2012 reproduced herein below;
CIDCO
WE MAKE CITIES
CITY AND INDUSTRIAL DEVELOPMENT CORPORATION OF MAHARASHTRA LIMITED.
REGD. OFFICE: HEAD OFFICE:
'NIRMAL' 2nd Floor, Nariman Point CIDCO Bhavan, CBD Belapur.
MUMBAI400021 Navi Mumbai400614.
PHONE :(Reception)+91226650 0900/6650 0928 PHONE:+912267918100
FAX : +912222022509 / 6650 0933 FAX :+912267918166
Ref: DCO/BP/ATPO (NM and Khopta)/2011972 Date: 13/09/2011
To,
M/s. Abhishek Builders and Developers,
Plot NO. 79 and 80, Sector-20.
Kharghar, Navi Mumbai.
Sub: Notice under Section 53(1) of M.R. and T.P. Act,1966 in respect of development of Residential Cum Commercial Building on plot no. 79 and 80, Sector20, Kharghar, Navi Mumbai.
Ref: Development permission granted by this office to subject plot on 15/06/2006.
Sir/Madam,
This office, as referred above, has granted Development Permission on 15/06/2006 for the construction of Residential cum Commercial Building on subject plot. While granting the said permission 97 nos. of Residential units, 20 nos. of commercial units with 02 nos. of office buildings from 1st to 3rd floor having total 06 nos. of office units were approved.
Further, after submission of the proposal for occupancy certificate by your appointed Architect on 13/08/2009, the same was refused by this office vide refusal letter dtd. 10/09/2009 for the reasons mentioned therein. Thereafter, the site was inspected and it has come to the notice of this office that, the development carried out on site is not as per the plans approved by this office and it is observed that by making internal changes the nos. of residential units are found increased from 97 to 160 units and as also the same has been done in shops and office units, where shops have increased from 20 nos. to 38 nos. and office buildings have also constructed from 1st to 4th floor, without obtaining due permission from this office under section 45 of the MR and TP Act, 1966.
As this offence is falling under clause (b) of sub section (1) of section 52 of M.R. and T.P. Act 1966, this notice is served upon you, under Section 53(1) of M.R. and T.P. Act 1966, instructing you to get the changes made on site, approved by this office within one month from the date of issue of this notice or otherwise necessary action as laid down under sub section (6) of section 53 of M.R. and T.P. Act, 1966 shall be initiated against you which may be noted.
It is also observed that you have given possession to the some of the flat owners as well as shop without obtaining occupancy certificate from this office to the subject development. Hence the occupation in the said building without obtaining occupancy certificate is termed as unauthorized and suitable action will be initiated against you separately.
sd/Addl.
Town Planning Officer,
NaviMumbai and Khopta.
“LANGUAGE”
CIDCO/BP/ATPO (NM and Khopta)/2011/1155
To,
M/s. Abhishek Builders and Developers,
Plot NO. 79 and 80, Sector20,
Kharghar, Navi Mumbai- 410210.
Sub: Failure to comply with the notice served upon you under section 53(1) of M.R. and T.P. Act, 1966 in respect of development of Residential Cum Commercial Building on plot no.79 and 80, Sector20, Kharghar, Navi Mumbai.
Ref: 1) Development permission granted by this office to subject plot on 15/06/2006.
2) Notice under Section 53(1) of M.R. and T.P. Act, 1966 issued by this office vide letter dated 13/09/2011.
3) One set of drawings in respect of subject plot submitted by your Architect on 19/09/2011.
After submission of the proposal for occupancy certificate by your appointed Architect on 13/08/2009, the same was refused by this office vide refusal letter dtd. 10/09/2009 for the reasons mentioned therein. Thereafter, the site was inspected on 29/09/2009 by A.E. concerned of this office, and it has come to the notice of this office that, the development carried out at site is not as per the plans approved by this office.
Thereafter, the notice was served upon you as referred at sr. no. 2 above, under Section 53(1) of MR and TP Act 1966, instructing you to get the changes made on site, approved by this office within one month from the date of issue of this notice or otherwise necessary action as laid down under sub section (6) of section53 of M.R. and T. P. Act1966 shall be initiated against you.
In response to the said notice, your appointed Architect has submitted one set of drawings as referred at sr. no. 3 above. However after the said submission, the site has been inspected by A. E. concerned of this office on 10/10/2011 and on 17/10/2011 and it is observed that the drawings submitted by your Architect are not in conformity with the actual construction done at site and also constructed built up area is more than the approved built up area.
As you/your Architect have failed to take approval of this office for the as built construction, hence Chief Controller of Unauthorized Constructions, CIDCO is hereby being informed to take further steps as specified in section 53 of the M. R. and T. P. Act, 1966.
Sd/Addl.
Town Planning Officer,
NaviMumbai and Khopta
“LANGUAGE”
CIDCO/BP848/ATPO(NM and k)/2012/764 30.01.2012
NOTICE UNDER SECTION 53(6)(b) OF THE MAHARASHTRA REGIONAL and TOWN PLANNING ACT, 1966
To,
M/s. Abhishek Builders and Developers,
107 and 109, Central Facility Bldg. (Phaseil),
Above State Bank of Saurashtra,
Sector 19, Vashi,
NaviMumbai 400705.
Thro' its Partners,
1. Mr. Dinesh Keshavji Patel,
2. Mr. Karman Rabhu Patel,
3. Mr. Gangji Kalyanji Bhanushali,
4. Mr. Vijay Ravji Gajra,
5. Mr. Sunil Keshavji Gala and
6. Mr. Sohal Navin Gala, .. Intending Lessee
Gentlemen,
WHEREAS the City and Industrial Development Corporation of Maharashtra Limited made allotment of Plot NO. 79 and 80, admeasuring 2890.13 sq. mt. and 3856.42 sq.mt. respectively, in Sector, 20 Kharghar, Navi Mumbai, to you and the Agreements to Lease have been executed and handed over possession of these plots on 22.06.2005 and 06.09.2005 respectively.
AND WHEREAS the undersigned has been empowered by the City and Industrial Development Corporation of Maharashtra Limited, to exercise and perform the powers and functions of the Planning Authority under section 53, read with Section 152 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as "the Said Act");
AND WHEREAS it has been reported to me that you have carried out construction on Plot No. 79 and 80, Sector 20, Kharghar, Navi Mumbai, which is not in conformity with the development permission granted vide this office letter No. CIDCO/BP/ATPO/848, dated 15/06/2006.
AND WHEREAS the notice under Section53(1) of the said Act was served upon you vide this office letter no. CIDCO/BP/ATPO(NMandKhopta)/2011/972;dated 13/09/2011.
AND WHEREAS, in response to the said notice, you had submitted "As Built drawings" on 19.09.2011, under Section 53(3) of the Said Act. The undersigned visited the site on 10.10.2011 and 13.10.2011 and it was noticed that the "As Built drawings" submitted on 19.09.2011 were not in conformity with the actual construction carried out at site. Therefore, in exercise of the powers under Section 53(5) of the said Act, the permission applied for was not granted, vide this office letter No. CIDCO/BP/ATPO (NMandKhopta)/2011/1155, dated 14.10.2011
AND WHEREAS, the First Information Report is registered with the Kharghar Police Station, against all of you, under Section 53(6)(A) of the said Act.
AND WHEREAS the actual measurements of construction made on Plot No. 79 and 80 were taken and it is noticed that you have carried out total construction of 11,842.077 sq.mt. built up area, against the approved/permissible built up area of 10.266.459 sq.mt. Thus, you have made excess construction of 1575.618 sq.mt; which is unauthorized and cannot be regularized.
THEREFORE, you are hereby directed to remove the unauthorized construction carried out by you, as described in the Schedule appended below and shown in drawings annexed hereto and to restore the construction in conformity with the development permission granted under this office letter No. CIDCO/BP/ATPO/848, dated 15/06/2006, within seven days from the date of receipt of this notice.
Please note that on failure to comply with the aforesaid requisition within seven days from receipt of this notice, aforesaid unauthorized construction shall be demolished at your risk, cost and consequences without any further correspondence.
SCHEDULE
The unauthorized construction carried out beyond the development permission granted, vide this office letter no. CIDCO/BP/ATPO/848, dated 15/06/2006, for development of Residential cum Commercial building on Plot No. 79 and 80, Sector20, Kharghar, Navi Mumbai.
1. Built up area of 232.895 Sq. Mt. consumed at ground floor in 38 Nos. of shops by extending the depth of the shops towards ground floor stilt area, as shown in red colour in the drawing enclosed as Annexure1.
2. Built up area of 15.763 Sq. Mt. on each floor of office building near "A" wing with a total built up area of 63.025 Sq. Mt. from First floor to Fourth floor, as shown in red colour in the drawing enclosed as Annexure2.
3. Build up area of 300.563 Sq. Mt. from First to Fifth floor, under Fitness centre constructed between "B" and "C" wing, over the permissible built up area of 171.76 Sq. Mt. as shown in red colour in the drawing enclosed as Annexure3.
4. Built up area of 14.42 Sq. Mt. on each floor with a total build up area of 288.40 Sq. Mt. from Second to Twenty First floor of "A" wing, as shown in red colour in the drawing enclosed as Annexure4.
5. Built up area of 16.058 Sq. Mt. on each floor with a total built up area of 321.16 Sq. Mt. from Second to Twenty First floor of "B" wing, as shown in red colour in the drawing enclosed as Annexure5.
6. Built up area of 15.693 Sq. Mt. on each floor with a total built up area of 313.86 Sq. Mt. from Second to Twenty First floor of "C" wing, as shown in red colour in the drawing enclosed as Annexure6.
7. Built up area of 14.383 Sq. Mt. on each floor with a total built up area of 287.66 Sq. Mt. from Second to Twenty First floor of "D" wing, as shown in red colour in the drawing enclosed as Annexure7.
8. Cupboards and Flowerbeds on all the floors not constructed as per the approved section.
Sd/-
30.01.2012
(R. B. Patil )
Addl.TownPlanning Officer,
NM and Khopta
46. The petitioners in Writ Petition (St.) No. 10937 of 2012 i.e. M/s. Abhishek Builders and Developers did file Writ Petition No. 1234 of 2012. In said writ petition, direction was sought to the respondents to withdraw and/or cancel the notice dated 13th September, 2011 and also further direction was sought for quashing and setting aside the order dated 14th October, 2011 passed by the respondents thereby rejecting the application dated 19th September, 2011 made by the petitioners' Architect for issuing occupation certificate in respect of the said building i.e. Green Heritage situated on Plot Nos. 79 and 80, Sector20, Kharghar, Navi Mumbai. In the said writ petition, further relief to issue occupation certificate to the petitioners in respect of the said building was also sought for. The petitioners further prayed for issuance of the writ of certiorari or any other writ, order or directions under Article 226 of the Constitution of India to quash and set aside the order dated 30th January, 2012 passed by the Additional Town Planning Officer, Navi Mumbai and Khopta.
47. The aforementioned writ petition was heard by this Court on 9th March, 2012. In the said order, the Counsel appearing for the respondent Corporation stated that, the petitioners have already put on notice about the irregularities committed by the petitioners which are stated in the notice dated 30th January, 2012. In all there are eight irregularities in the schedule appended to the said notice. The petitioners, in reply to the statement of the Counsel appearing for the Corporation, submitted that they would remove all the irregularities which cannot be regularized provided the Officer of the Corporation provides joint inspection on the site. In response to the aforesaid submission, without prejudice to the rights and contentions in the petition, the respondent Corporation showed willingness to give one more opportunity to the petitioners and identify the illegal and/or irregular structures constructed on the site referred to in the schedule to the notice dated 30th January, 2010 in particular. The Officer of the Corporation showed readiness to remain present on the site on 24th March, 2012 at 11.30 a.m. It was also observed in the said order that, the petitioners shall keep their representatives at that time on the site to be accompanied by their architect, if the petitioners so desire. It was also observed in the said order that, if the petitioners failed to cooperate in the joint measurement process, that fact be placed on record by the Officer of the Corporation by way of a report. The hearing of the matter was deferred till 16th March, 2012.
48. On 16th March, 2012, the Counsel for the petitioners in Writ Petition No. 1234 of 2012 submitted that, joint measurement has been done and the petitioners (builders) have no issue about the correctness thereof. An order dated 16th March, 2012 further records that, the Counsel appearing for the builders states that, the factual position stated in the joint measurement report will have to be taken to be as it is. He further fairly accepts that, the joint measurement report indicates that some irregularities have been committed during the construction of the building in question. Thus, the builder would take immediate steps in the first place to submit proposal within one week from 16th March, 2012 for regularization of portion which can be regularized including by purchasing FSI of the abutting plot, if permissible in law. The Corporation was directed to take decision within two weeks. It was further observed that, to the extent, the unauthorized structures can not be regularized, the builder/occupants will have to take immediate remedial and corrective steps as would be stated in the proposed order to be passed by the appropriate authority. This Court further observed that, in view of the aforesaid arrangement, nothing would survive for consideration in the petition. However, hearing of the petitioner was deferred till 13th April, 2012. The matter was again heard on 27th April, 2012 and was directed to be listed alongwith Writ Petition No. 10937 of 2012 on 3rd May, 2012. The order dated May 3, 2012 of this Court reads thus:
"P.C.:-
During the pendency of this petition, certain steps were taken pursuant to the directions given by the Court from time to time. During the pendency of this petition which essentially was to challenge the notice issued by the Corporation under Section 53 of the Act, the petitioner submitted regularisation application in respect of structures which are admittedly unauthorised. The Corporation, however, has rejected the said proposal. In that case, the petitioner is required to remove the unauthorized structures. We agree with the submission of the Counsel for the Corporation which is fairly accepted by the petitioner that this petition will not survive for consideration which challenges the notice under Section 53 of the Act and more particularly, because of the position accepted by the parties in the joint measurement undertaken pursuant to the orders of this Court.
2 Accordingly, this petition is disposed of leaving all questions relating to regularisation of the disputed structures referred to in Order dated 9-th April, 2012 open. That order is already subject matter of challenge in Writ Petition (Stamp) No.10937/2012. All the questions in that behalf will have to be decided on merits and in accordance with law. "
Accordingly, said writ petition was disposed of leaving all questions open relating to regularisation of the disputed structures referred to in Order dated 9th April, 2012.
49. The learned Counsel appearing for the petitioners in Writ Petition (St.) No. 10937 of 2012 submitted that, in spite of giving specific directions by this Court to the respondents to consider the proposal for regularization which may be submitted by the petitioners by giving opportunity to all concerned, the respondent No. 2 on his own unilaterally decided the said proposal without hearing the petitioners or their Architect in violation of the directions given by this Court. It is submitted that, the impugned order passed by the authority is also incomplete in as much as the proposal given by the petitioners was two fold and the respondent No. 2 has only considered one aspect of the matter, that too, wrongly and has completely omitted the second leg of the proposal by not even mentioning the same in his order which action vitiates the entire order. It is submitted that, the building has been constructed as per commencement certificate granted by the respondent Nos. 2 and 3 on 23rd June, 2006. It is submitted that, there is a odd shaped plot belonging to the respondent No. 1 Corporation which is adjoining the petitioners' plot being Plot Nos. 79 and 80 but said plot is reserved for garden and if otherwise unbuildable. It is submitted that, in accordance with clause (iv) of Rule 4 of Chapter III of Navi Mumbai Disposal of Lands (Amendment) Regulations, 2008 framed by the CIDCO for disposal of the plot, Managing Director of CIDCO respondent No. 2 herein is empowered to allot odd shaped land to the adjoining Licensee or allottee, which otherwise cannot be disposed off for the reason of non availability of access or is not developable due to its odd shape or other reasons, for the same use and with the same FSI the adjoining plot has. It is submitted that, aforesaid plot apart from odd shaped land is also unbuildable and not developable in view of the fact that it is shown as reserved for garden. The another arguments of the Counsel for the petitioners is that, the respondent No. 1 Corporation has granted proposal for permitting the use of FSI of land under tree belt in similar cases and the petitioners were informed that in respect of Plot NOs. D67, D68 and D69 of Sector12, Kharghar, tree belt was permitted to be merged of the said plot only for FSI purposes. According to the Counsel for the petitioners, the request was made on similar line and their proposal for regularization by offer to purchase FSI in respect of adjoining odd shaped plot which is otherwise unbuildable on Plot No.3432, in Sector12 and Plot No. 9 in Sector6 at Kharghar and for utilizing FSI available by merging adjoining tree lines of the petitioners' plot against payment of premium which was permitted CIDCO in case of Plot No. DE67, D68 and D69 as stated hereinabove.
50. The respondent CIDCO has filed affidavit in reply and also additional affidavit in reply and as a matter of fact, has placed on record the correct factual position based upon the official record that commencement certificate was issued in favour of the petitioners on 23rd January, 2006 which contained various conditions. Thereafter, the petitioners/builders submitted revised plan for approval and amended commencement certificate was issued on 15th June, 2006. The number of floors and total built up area in both the commencement certificate issued on 23rd January, 2006 and amended commencement certificate issued on 15th June, 2006 remained unchanged and has reflected to be Ground + 21 floors with a total built up area of 10,094.885 sq. mt. It is submitted that, some internal changes and changes in the number of units was made in the revised plan and for this purpose, amended commencement certificate was issued. The Architect of the petitioners for the first time applied for occupation certificate on 13th August, 2009, however, as there were shortcomings in the proposal submitted and therefore, the respondent No. 3 refused permission for occupation Certificate within one month by his letter dated 10th September, 2009. Thereafter, it was responsibility of the petitioner/Architect to have removed or fulfilled the shortcomings and submitted the proposal of occupation certificate. However, the petitioners did not submit a proper proposal for occupation certificate. Shri. Ravindra Bhaskarrao Patil, Additional Town Planning Officer, therefore, had issued a notice under Section 53 of the MRTP Act, 1966 on 13th September, 2011 to the builder i.e. petitioners in Writ Petition (St.) No. 10937 of 2012. Bare perusal of the said notice which is reproduced hereinabove would clearly show that, while granting permission for construction, permission was granted for construction of 97 numbers of Residential Units, 20 numbers of commercial units with 02 numbers of office buildings from 1st to 3rd floor having total 06 numbers of office units were approved. After submitting proposal for occupation certificate by the Architect/builder on 13th August, 2009, said occupation certificate was refused by the office of the respondents vide refusal letter dated 10th September, 2009 for the reasons mentioned in the said letter. Thereafter, site was inspected and it has come to the notice that, development carried out on site is not as per the plans approved by the CIDCO and it was further observed that, by making internal changes the numbers of residential units are found increased from 97 to 160 units and as also the same has been done in shops and office units, where shops have increased from 20 numbers to 38 numbers and office buildings have also constructed from 1st to 4th floor, without obtaining due permission from the office of the respondent under Section 45 of the MRTP Act, 1966 and therefore, the petitioners were called upon to reply to the said notice. The said notice and notice dated 13th September, 2012 was subject matter of the Writ Petition No. 1234 of 2012. In the said writ petition, the Counsel for the petitioner/builder accepted the position that, the joint measurement has been done and the petitioners (builder) have no issue about the correctness thereof. The factual position stated in the joint measurement report has been accepted by the petitioners. The petitioners have also acknowledged that, the joint measurement report indicates that some irregularities has been committed during the construction of the building in question and therefore, the said writ petition was disposed of.
51. In vie w of afore stated position, so far challenge to the notice dated 13th September, 2011 and also to the notice dated 30th January, 2012 in writ petition No. 1234 of 2012 and in connected writ petitions has come to an end. The proposal of the petitioners for regularization of portion which can be regularized including by purchasing FSI of abutting plot, otherwise permissible in law has been considered by the respondent authorities and same has been turned down.
52. One of the contention of the Counsel appearing for the petitioners that, odd shaped plot belonging to the respondent No.1 Corporation which is adjoining the petitioners' plot should be allotted in favour of the petitioners is concerned, in this respect relevant provisions pressed into service by the petitioners is Clause (iv) of Rule 4 of Chapter III the Navi Mumbai Disposal of Lands (Amendment) Regulations, 2008 which reads thus:
"Conditions for disposal of plots.
4. Manner of disposal of plots : The Corporation shall dispose off plots by inviting public tenders or by public auction, except for the following categories :
i.......
ii......
iii.....
iv. to the reputed national/international institutes, R and D establishments, Foreign Govt,. Consulates, by considering individual applications at specified rate of lease premium:
Provided that the Managing Director may allot odd shaped land to the adjoining Licensee/Lessee, which otherwise cannot be disposed off for the reason of non availability of access or is not developable due to its odd shape or other reasons, for the same use and with the same FSI the adjoining plot has, at the base rate suggested in the Land Pricing and Land Disposal Policy prevailing at the time of allotment of odd shaped land or at the rate at which the original plot is allotted, whichever is higher :
Provided further that, on application the Managing Director may allot plots on leave and license upto a period of Eleven years for stone/sand quarries, brick kilns, maintenance of garden, playgrounds, temporary Labour camps or any such temporary activities which shall not create permanent encumbrance on the plots."
53. On careful perusal of clause (iv) of Rule 4 of Chapter III of the aforesaid Regulations, would make it abundantly clear that, the powers under Rule 4 sub rule (iv) to allot a plot for such purpose to the the abutting and already allotted plot owner is permissible if it satisfies three conditions: (a) it is odd shaped (b) on non developable area/zone and cannot be used for developable purpose (c) non accessible by any approach.
54. In this respect, affidavit in reply filed by the CIDCO in unequivocal language makes a mention that, the plot demanded by the petitioners is not an odd shaped plot, but it is in such a shape which can be developed independently if so desired by the CIDCO. The plot is currently reserved for rotary junction which is important aspect for the purpose of town lay out. In future, CIDCO in the event of restructuring the town layout and cancelling the rotary junction, the said plot which is not odd shaped has the potential to be used independently as a completely developable plot. Said plot is also not inaccessible but has a direct approach and has a good potential to be developed in the event of the Respondent-CIDCO deciding to develop in the future and therefore, none of the necessary conditions required to be fulfilled are being satisfied and therefore, the request of the petitioners to the respondent authorities to allot the said plot has no force and the respondents have rightly rejected the said prayer.
55. The another contention of the Counsel for the petitioners that, since Plot Nos. 67 and 68 which were reserved for tree plantation were allotted to the cooperative society and its FSI was allowed to be used for the construction of such building and hence, the petitioners should also be allotted the plot and its FSI be used to regularize the illegal and unauthorized construction of the building in dispute is concerned, the reply filed by the respondents makes a mention that said plots were allotted prior to commencement of the construction of the building by the society whereas the petitioners are demanding to regularize their illegal and unauthorized construction which is afterthought. There is an essential difference between the plots so allotted to the cooperative societies which was prior to the commencement of the construction and as such approved as per plans by CIDCO whereas the demand of the present petitioners is of the nature to regularize an illegal act which cannot be regularized and which would set a wrong and dangerous precedent in terms of illegal construction in the entire city. The affidavit filed by Mr Prakash Nathuram Mhatre, working as the Incharge Manager (Town Services-III) of the respondent-CIDCO dated 4th May, 2012 in paragraph5 mentioned that, pursuant to the provision made in the Navi Mumbai Disposal of Lands (Amendment) Regulations, 2008, the respondent has not allotted any odd shaped land or any non developable plot for the purpose of regularization of unauthorized construction or excess construction, after coming into force the said Regulation in the year 2008. In paragraph6, it is further stated that, on the basis of the said Regulations, 2008, the CIDCO is not empowered to allot such odd shaped land and/or non developable plots for regularization of such unauthorized construction and/or excess construction and hence, based on the present provisions made in the said Resolutions, 2008, even in future odd shaped land/non developable plots will not be allotted for the purpose of regularization of unauthorized construction and/or excess construction. In paragraph7, it is further stated that, tree belt adjoining to the Plot Nos. D67, D68 and D69 was not capable of being independently developed and the allotment was satisfying the proviso of Regulation 4 of the said Regulations for allotment of odd shaped land/non developable land. Therefore, the allotment of the tree belt was made to the adjoining Licensees. However, there is categorical statement in the said paragraph that, this allotment was not made for regularization of unauthorized and/or excess construction. Therefore, in our considered opinion, the proposal for regularization of unauthorized illegal/irregular construction of the petitioners i.e. M/s. Abhishek Builders and Developers has rightly been turned down by the respondent CIDCO.
56. In Writ Petition No. 1077 of 2007 in the case of Sudhir M. Khandwala vs. The Municipal Corporation of Greater Mumbai and others, this Court was dealing with the provisions of MRTP Act, 1966 permitting regularization of the statutory scheme. In the aforesaid writ petition, the Division Bench of this Court relying upon the exposition of the Supreme Court in the case of MahendraBaburao Mahadik and others vs. Subhash Krishna Kanitkar and others reported in AIR 2005 SC 1794 in paragraph Nos.117, 118, 119, 120, 121 and 122 held ;
"117. The Hon’ble Supreme Court was considering a case where the first Respondent before it filed the Writ Petition (in the nature of Public Interest Litigation) inter alia for issuance of an appropriate direction to the Bhiwandi Nizampura Municipal Council to demolish a building consisting of ground and six upper floors constructed by the Appellants before the Supreme Court. In that Writ Petition, this Court, inter alia, held that regularization of such unauthorized structures would defeat the very purpose of introducing the rule of planned development of the city and this cause of such unauthorized construction must be dealt with sternly. Thereafter, this Court issued directions to take immediate steps to demolish the unauthorized structures in Bhiwandi in accordance with law. It is from this judgment and order of this Court that the Appeal was carried to the Supreme Court and the Hon’ble Supreme Court adverted to the relevant statutory provisions including Sections 44 and 53 of the MRTP Act, 1966 and held as under :
"18. In terms of Section 44 of the MRTP Act, a person intending to raise any construction is required to make an application in respect thereof to the Planning Authority for permission in such form and containing such particulars and accompanied by such documents, as may be prescribed. Filing of such application and obtaining such permission concededly are imperative in character. Such permission, if granted, remains in force for a period of one year unless extended by the Planning Authority.
19. Section 52 contains penal provisions. Section 53 authorizes the local authority to direct removal of unauthorized development. Sub section (1) of Section 53 authorizes the local authority to issue a notice where a development of land has taken place in violation of the conditions indicated in Sub section (1) of Section 52.
38. Once such a notice under Section 52 is served, the persons aggrieved within the period specified therein, which in the instant case is one month, must apply for permission for retention on the land of the building or works under Section 44 of the MRTP Act. Only when a permission is granted, the notice would stand withdrawn. The question of grant of any permission would arise only if an application is made therefor. As the Appellants herein had not filed such application, the Municipal Council was obliged not only to prosecute the owner but also to carry out the demolition in terms of the aforementioned notice dated 6.6.1998.
39. The Municipal Council is a 'local authority as well as planning authority within the meaning of the provisions of Sections 2(15) and 2(19) of the MRTP Act.
40. The Municipal Council being a creature of statute was bound to carry out its functions within the four corners thereof. Being a statutory authority, it was required to follow the rules scrupulously. Concededly, the Municipal Council is not possessed of any statutory power to regularize unauthorized constructions. Its power is confined to compounding the offences in certain cases. Moreover, even development charges could not be recovered from the Appellant in respect of unauthorized constructions in terms of Section 124E(2) of the MRTP Act.
43. It may be true that certain demands were made upon the Appellants herein to deposit the development charges by the Municipal Council but the same were made without prejudice to their rights, as would appear from the notice dated 3.11.1998. Demand of the development charges without prejudice to the rights of the Municipal Council did not, thus, create any legal right in favour of the Appellants. [See Chairman and MD, NTPC Ltd. Vs. Reshmi Constructions, Builders and Contractors, (2004) 2 SCC 663].
44. Payment of development charges by itself, therefore, did not lead to exoneration from the consequence of commission of an offence or regularization of unauthorized constructions.
45. The jurisdiction of a local authority is confined only to deal with application for grant of permission for construction as contained in Section 44 of the MRTP Act whether at the initial stage or when a notice is served under Sub section (2) of Section 53 of the MRTP Act. The power to grant such permission could be exercised only within the purview of the Building Bye laws.
Therefore, being beyond the scope of Section 44 of the MRTP Act, the Municipal Council did not have any jurisdiction to direct regularization of such unauthorized constructions by reason of the said resolution or otherwise. The power of the Municipal Council, it is trite, being confined to the provisions of the said Acts, no action could be taken by them contrary thereto or inconsistent therewith."
118. In paragraph 46, the Hon’ble Supreme Court referred to a decision delivered in Friends Colony Development Committee v State of Orissa and others, ([2004]8 SCC 733), in paragraph 47, it referred to the decision of the Supreme Court in M.I. Builders Pvt. Ltd. V Radhey Shyam Sahu and others, ([1999] 6 SCC 464) and in paragraphs 48 and 49 held thus:“
48. A discretionary power must be exercised having regard to the larger public interest.
49. In Consumer Action Group and Another vs. State of T.N. and Others [(2000) 7 SCC 425], this Court held :
"While exercising such a power the authority has to keep in mind the purpose and the policy of the Act and while granting relief has to equate the resultant effect of such a grant on both, viz. the public and the individual. So long as it does not materially affect the public cause, the grant would be to eliminate individual hardship which would be within the permissible limit of the exercise of power. But where it erodes the public safety, public convenience, public health etc. the exercise of power could not be for the furtherance of the purpose of the Act. Minor abrasion here and there to eliminate greater hardship, may in a given case, be justified but in no case affecting the public at large. So every time the Government exercises its power it has to examine and balance this before exercising such a power. Even otherwise, every individual right including fundamental right is within, reasonable limit but if it makes inroads into public rights leading to public inconveniences it has to be curtailed to that extent. So no exemption should be granted affecting the public at large. Various development rules and restrictions under it are made to ward off possible public inconvenience and safety. Thus, whenever any power is to be exercised, the Government must keep in mind, whether such a grant would recoil on the public or not and to what extent. If it does then exemption is to be refused. If the effect is marginal compared to the hardship of an individual that may be considered for granting............."
119. The Supreme Court also distinguished its earlier decisions in the case of Corporation of Calcutta v Mulchand Agarwalla, AIR 1956 SC 110 by observing that the said decision was rendered in the facts of that case and considering Section 363(2) of the Calcutta Municipal Act.
120. Once, the statutory scheme has been analysed by the Hon’ble Supreme Court and it rendered an authoritative pronouncement qua identical provisions, then, there is no alternative but to hold that the permission for construction or for retention has to be granted only within the fourcorners of the MRTP Act and building byelaws. Beyond Section 53,the Municipal Corporation does not have any jurisdiction to direct regularization of unauthorized construction. In the light of the clear pronouncement and the observations in paragraph 45 it must be held that the power to permit retention as provided by Section 53(3) of the MRTP Act, 1966 is the only source by which the Corporation could direct regularization of unauthorized constructions. There is no question of the Corporation falling back or relying upon the DC Regulations or any discretionary power of the Municipal Commissioner thereunder. The provision that is permitting such retention or regularization is to be found only within Section 53(3) and Section 44 of the MRTP Act, 1966. It was conceded before the Supreme Court that there is no other statutory power to regularize unauthorized constructions. In these circumstances, reliance placed by the parties before us on the discretionary power of the Municipal Commissioner under the DC Rules, is entirely misplaced. That discretionary power under Regulation 64 of the DC Regulations is also clear. The discretionary power is to be exercised by the Commissioner in specific cases where clearly demonstrable hardship is caused. In such cases, the Commissioner for reasons to be recorded in writing by special permission permit any of the dimensions prescribed by the DC Regulations to be modified, except those relating to floor space indices unless otherwise permitted under these Regulations, provided that the relaxation will not affect the health, safety, fire safety, structural safety and public safety of the inhabitants of the building and the neighbourhood. Therefore, the discretionary power conferred upon the Commissioner has to be exercised firstly in conformity with the intent and spirit of the Regulations. Secondly, these discretionary powers are to be exercised in specific cases where clear demonstrable hardship is caused. Thirdly, it contemplates a special permission which has to be granted for reasons to be recorded in writing by the Commissioner. Fourthly, such special permission permits modification of any of the dimensions prescribed by the DC Regulations, except those relating to floor space indices unless otherwise permitted under these Regulations. Lastly, the relaxation that is contemplated so also the modifications should not affect the health, safety, fire safety, structural safety, etc.. Therefore, these discretionary powers under Regulation 64(b) cannot be said to be the source of power for regularization or retention of the works. That is a specific power conferred by Section 53 of the MRTP Act, 1966 and as the Supreme Court holds that is the only provision for permitting regularization. Therefore, it is not permissible to hold that Regulation 64 of the Development Control Regulations for Greater Bombay, 1991 would permit the Commissioner to regularize the construction made in Writ Petition No.1077 of 2007. The impugned order is traceable to the aforementioned statutory provision and must be held to be made thereunder.
121. Assuming that the Division Bench judgment in the case of Rajendra Thakkar (supra) could be read to permit such a regularization, that judgment, with respect, to the extent it holds that Regulation 64 confers such a power, cannot be held to a good law in the light of the Supreme Court decision referred hereinabove. Apart therefrom, that judgment itself holds that the discretionary power of the Commissioner is not absolute. Regularization is not something which should be granted as a matter of course. Regularization of unauthorized constructions will have to be permitted on case to case basis. It cannot be said as a matter of general rule that unauthorized construction must be regularized if FSI is available or can be generated in the form of TDR from other source by the person/builder. First of all, the limits of FSI are prescribed and the construction at a particular site/plot is allowed considering the FSI generated by the plot. There are specific Regulations for computation of FSI. Once the limits of floor space indices are set out so also the requirement for set back and compulsory open spaces being laid down in the DC Regulations themselves, then, in the garb of considering an application for regularization, the Commissioner or the Planning Authority cannot give a go bye to these Regulations and stipulations. These are matters which affect the health, safety not only of the inhabitants of the buildings but of the neighbourhood. The DC Regulations contain specific Rules for computation and calculation of FSI `Qua’ plots of all sizes, shapes, dimensions etc.. Further, before development permission is granted the Planning Authority has to consider important issues and matters such as public interest and public safety including of the neighbourhood. It has to give proper care and due attention to matters such as congestion, affect of the retention/regularization/new construction on the existing facilities and basic amenities including water supply, roads, etc. If the regularization results in increasing pressure on the existing amenities, then, it would be advisable not to permit such a regularization.
122. We are of the view that the factors enumerated in Regulation 64(b) have to be considered and borne in mind including the contents of the development plan of the City/Town, while granting or refusing permission for regularization of unauthorized construction. By their very nature, the factors in this Regulation are illustrative. The plan is a wider concept and exhaustive. Therein, all aspects are outlined. Merely because the builder and developer states that he will be able to generate TDR and load it on to the existing plot/construction, that by itself is not decisive. By such process, all constructions, which are unauthorized and illegal, can be regularized. The result would be that every such person would openly flout the building byelaws and Regulations and make construction without any adherence thereto and later on, he would apply for retention or regularization by urging that the FSI of some other plot belonging to him can be generated and taken into account for regularization of the subject unauthorized construction. In other words, Developers and Builders would make unauthorized and illegal construction on plot `A' and would urge that they are making construction also on the plot `B’, which is in the vicinity. They would bring in the FSI/TDR generated on plot `B’ and load it on plot `A’ and that would enable regularization of the unauthorized and illegal construction of plot `A’. If such a course is permitted, there shall be increased pressure on the infrastructure and basic amenities available in or around plot `A’ and particularly its neighbourhood. That would make the areas in or around plot `A’ crowdy. Sometimes constructions are made in narrow lanes and byelanes. The existing roads and lanes are insufficient to meet the increasing traffic. If unauthorized construction is retained and regularized that would mean additional burden on the already inadequate infrastructural facilities. This would endanger the safety and health of the persons in the building on plot `A' and also in its neighbourhood. That is certainly not the intention of the Legislature nor does it further the purpose and object of the DC Regulations or Building Rules/Byelaws. Hence, we hold that if such loading of TDR is held to be permissible, that would nullify the Regulations and Rules pertaining to FSI, open spaces, set backs, etc. It is nobody’s case that these Rules do not have a definite role to play in the Planning and Development of a City or Town. These Regulations and Rules have to be strictly adhered to or else the construction would obstruct a road or abut on it automatically. Further, a construction on a plot will be made without keeping any open spaces or without adhering to the restrictions of height of buildings, etc. That is not the intent and purpose, when the Legislature permitted retention of the works or buildings with regard to which a notice under Section 53(1), has been served on the owner. The Legislature has not intended that provision in the planning laws including building byelaws and regulations relating to health, safety, fire safety, safety of the inhabitants of the buildings and the neighbourhoodhave to be ignored or brushed aside. Further, it is not intended that permission for regularization should be granted by loading of TDRs and generating of more FSI on the existing plots straightway. Such a course would have disastrous consequences."
57. Upon careful perusal of the discussion in para 117 to 122 in Writ Petition 1077 of 2007, reproduced herein above, we are in complete agreement with the said findings/observations therein in respect of interpretation of the relevant provisions of the said Act dealing with regularization of the statutory scheme. In view of the said observations/findings of the Division Bench, we do not feel it necessary to burden this judgment by discussing same provisions in respect of the regularization and more particularly when we are in complete agreement with observations/findings of the Division Bench in Writ Petition No. 1077 of 2007.
58. In the said writ petition No. 1077 of 2007, this Court has also considered the arguments that, unauthorised construction can be permitted to be regularized construction by loading TDRs or by condoning or relaxing the restrictions relating to FSI, upon space, set backs, height of the building etc., and in paragraph123 held:
"123. The Supreme Court has time and again expressed its serious concern over unauthorized and indiscriminate constructions in cities and big towns. In fact, the Supreme Court has cautioned against liberal use of the power of regularization and retention of unauthorized works and buildings. The Supreme Court has warned that authorities must take into account considerations of public safety and health, protection of environment and ill effects of unregulated and uncontrolled construction in cities and towns. Therefore, it cannot be said that every unauthorized construction can be permitted to be regularized by loading of TDRS or by condoning or relaxing the restrictions relating to FSI, open space, set backs, height of the building, etc. In individual cases and by applying the standards and rules strictly and rigourously, the authorities must take an informed decision bearing in mind the building regulations, restrictions and conditions therein. The retention of unauthorized works and constructions should not result in wholesale condonation and relaxation or exemption from the Building Rules and Byelaws or else there will be chaos and break down of the rule of law. Ultimately, planning authorities have been conferred such powers for public good and in public interest."
59. In the said judgment of the Division Bench in Writ Petition No. 1077 of 2007 this Court has also considered the decision of the Supreme Court in the case of Consumer Action Group and another vs. State of Tamil Nadu and others reported in AIR 2000 SC 3060 from paragraph 125 and 126 and held that the Municipal Commissioner is not in error in passing the orders and directing demolition of 8th to 24th floors and pulling down of the same by the Builder and Developer at his own costs. Division Bench has further considered the case of flat purchasers and held that, in such cases flat purchasers are aggrieved but their interest cannot be override those of the members of the public at large. Their individual rights and interests are subservient to the concerns for public health and safety. Ultimately, if they purchase flats without bothering to make inquiries and seeking details of the construction at site, then, they are themselves to blame. In this era, where science and technology have advanced to a great extent so enactments such as Right to Information Act are in place, it is not unreasonable to expect that the flat purchasers should avail of the same and seek appropriate and relevant details of the construction before booking and purchasing flats/tenements in large scale building projects. If they are carried away by the brochure and the public advertisements and do not make such inquiries, then, they cannot turn around and seek assistance of the Courts. Ultimately, the jurisdiction under Article 226 of the Constitution of India is extraordinary, discretionary and equitable. That jurisdiction cannot be exercised merely because of loss or inconvenience to such flat purchasers. There are civil and penal laws available to them for redressal of their individual grievances and complaints. Doors of civil and criminal courts are open to them. However, they cannot seek a Writ of Mandamus directing the Planning Authority to regularize unauthorized and blatantly illegal constructions. That makes a mockery of the rule of law. This Court while exercising jurisdiction under Article 226 of the Constitution of India cannot act contrary to law. Its orders and directions should not flout the planning laws and building regulations. It has been held by the Supreme Court that this jurisdiction must confine itself to the limits of law and not travel beyond it. In such circumstances, the fervent plea of the petitioner to allow retention of the unauthorized and illegal floors cannot be accepted.
60. Alongwith main writ petition (st.) No.10937 of 2012 there are two other petitions being W.P. Nos. 2439 of 2012 and 2045 of 2012 are filed by the purchasers of the shop tenements. As discussed hereinabove, Division Bench of this Court in W.P. No. 1077 of 2007 and connected writ petitions thereto, has answered in detail about the contentions raised therein by the purchasers, in our opinion, for the reasons given in this judgment and for the reasons which are given by the Division Bench in the said authoritative pronouncement in paragraph126, the aforesaid writ petitions should also fail.
61. In all three writ petitions, one common point is raised by the petitioners that, various authorities have granted No Objection Certificate or electricity supply, water connection etc., and therefore, occupation certificate ought to have been granted by the respondents. In our opinion, merely because authorities have granted permission for water connection, electricity supply or No Objection Certificate etc., that itself would not lead to the conclusion that, the respondent planning authority should regularize irregular construction over and above the permissible construction as per commencement certificate issued by the CIDCO on 23rd January, 2006 and the amended commencement certificate issued on 15th June, 2006. Therefore, there is no substance in the arguments of the Counsel appearing for the petitioners that, other authorities have granted no objection certificate or water connection or electricity supply connection etc., and therefore, the respondent planning authority is bound to grant occupation certificate.
62. Another common contention taken in all the writ petitions is that, the Chief Controller of Unauthorized Construction Cell of the first and second respondent has vide No Objection Certificate dated 2nd June, 2009 specified that, there are no unauthorized hutments, structures, debris etc., on plot other than building structure approved by Building Department of CIDCO and therefore, the respondent CIDCO was obliged to grant occupation certificate. We do not find any substance in the said arguments since the Chief Controller of Unauthorized Construction Cell of the first and second respondent has to certify only in respect of any unauthorized hutments, structures, debries etc., on plot. He is not authority who has granted commencement certificate or permission to construct premises. Therefore, his certificate is confined only qua unauthorised hutments, structures, debris etc., on plot, if any.
63. Another contention of the petitioners in Writ Petition No. 2439 of 2012 that, no notice of any site inspection was ever given by the respondent Nos. 1 and 2 to the builder and therefore, any site inspection without notice to the developers is of no consequences and cannot be relied upon. The said contention/submission is devoid of any merits and said deserves to be rejected in view of the fact that, in Writ Petition No. 1234 of 2012 this Court in its order dated 9th March, 2012 observed that, the officer of Corporation shown readiness to remain present at the site on 24th March, 2012 at 1100 a.m. and further it was observed in the said order that, the petitioners shall keep their representative at that time on the site to be accompanied by their Architect, if the petitioners so desire and thereafter, joint inspection has been carried out and report is submitted.
64. Therefore, in our considered opinion, viewed from any angle, there is no any merit in the petitions. In view of the discussion hereinabove, all the three writ petitions are dismissed. Rule stands discharged. No order as to costs.