# JAYANT ACHYUT SATHE v. JOSEPH BAIN D'SOUZA AND ORS

- **Citation:** [2008] 13 S.C.R. 31
- **Court:** Supreme Court of India
- **Decided:** 2008-09-04
- **Case number:** Civil Appeal_ No. 2970 of 2006
- **Bench:** Dr. Arijit Pasayat, P. Sathasivam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jayant-achyut-sathe-v-joseph-bain-d-souza-and-ors-23727
- **Pages:** 32

## Headnote

Town Planning:
Development Control Regulations, 1991 - Regulation
33(7) (as amended) - Regulations notified for greater Mumbai c
- Writ petition alleging gross misuse of Regulation 33(7) -
High Court upholding Regulation 33(7) and making it
applicable only to dilapidated buildings off\' category which
satisfy the requirement and those declared prior to monsoon
of 1997 under 3rd proviso - It also held that buildings entitled D
-i
to extra "Floor Space Index" and certain side space to be
provided - On appeal held: High Court not justified in reading
additional requirements into Regulation 33(7) after holding it
to be valid - In interpreting a statute, meaning of particular
words is to be found not so much in a strict etymological E
propriety of language, nor even in popular use, as in the
subject or occasion on which they are used and object that is
intended to be attained - Applying rules of grammar, the term
"which attracts the provisions of MHADA Act, 1976" could only
qualify the proximate substance "cessed building of A category F
in Island city" and nothing more - Interpretation of statutes -
Maharashtra Housing and Area Development Act, 1976 .
Problems arose in the island city of Mumbai with
regard to congestion of population. Various Acts were
enacted and amended in respect of repair and G
reconstruction of dilapidated buildings. The Development
"'
Control Regulations, 1991 were notified for greater
'
}-
Mumbai. Regulation 33(7) provided for reconstruction and
development of cessed buildings in the island city of
31
H
32
SUPREME COURT REPORTS
(2008] 13 S.C.R.
1
A cooperative housing societies or of old buildings
belonging to the Corporation. It also provided for
consumed FSI or FSI 2 whichever is higher. The
Regulation was amended time and again. The petitioners
filed writ petition on the ground that there was gross
B misuse of the amended Regulation 33(7) when it applied
to private buildings; that buildings which are otherwise
in good condition have been pulled down merely
because they were constructed prior to 1940; that there
are no guidelines as to who are the tenants or occupiers
c who are eligible to be protected under the Regulations.
High Court while holding that Regulation 33(7) does not
suffer from any illegality, held that the same applies only
to dilapidated buildings of 'A' category which satisfy the
requirement and those declared prior to the monsoon of
D 1997 under 3rd proviso are covered under Regulation
33(7) and are entitled to extra "Floor Space Index"; and
that certain side space would be provided. Hence, the
present appeal.
Allowing the appeal, the Court
E
HELD: 1.1 High Court was not justified in reading
additional requirements into Regulation 33(7) after holding
the same to be valid. [Para 43] [62-C-D]
1.2 If different language is used in the same section
F or in different sections, the legislative intent is that they
are intended to lead to different results and there is a
,.
conscious intent. [Para 25] [57-G]
Member Board of Revenue vs. Arthur Paul Benthall 1955
(2) SCR 842, 845 846; Commissioner of Income Tax, New
G Delhi now Rajasthan v. Mis East West Import and Export (P)
Ltd; Asian Distributors Ltd.}, Jaipur 1989 (1) SCC 760 - relied
on.
,,.
1.3 In the writ petitions filed there was no challenge
_..
H to Regulation 33(7) of the Development Control
JAYANT ACHYUT SATHE v. JOSEPH BAIN
33
'
D'SOUZA & ORS.
Regulations, 1991. Only incentive FSI was challenged. A
So far as Regulation 33(7) is concerned, there will btf no
acquisition in Chapter VIII. Stress is on spending money
out of the funds and of acquisitions. Chapter VIII-A
essentially deals with occupiers. Acquisition and the
·~
Board's role is that of certification. Under Regulation 33(7)
B
the occupier and the landlord are involved. There is no
acquisition and there is no government fund utilized.
There is a Transferable Development Right (TOR) and the
concept of incentive FSt [Para 26] [58-D-F]
1.4 A survey conducted by the Corporation in 1

## Text

_Characters 0–39,922 of 60,299. This is a partial read: ask again with offset=39922 for what follows._

[2008] 13 S.C.R. 31
JAYANT ACHYUT SATHE
A
v.
JOSEPH BAIN D'SOUZA AND ORS.
(Civil Appeal_ No. 2970 of 2006)
SEPTEMBER 4, 2008
B
-~
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]
Town Planning:
Development Control Regulations, 1991 - Regulation
33(7) (as amended) - Regulations notified for greater Mumbai c
- Writ petition alleging gross misuse of Regulation 33(7) -
High Court upholding Regulation 33(7) and making it
applicable only to dilapidated buildings off\' category which
satisfy the requirement and those declared prior to monsoon
of 1997 under 3rd proviso - It also held that buildings entitled D
-i
to extra "Floor Space Index" and certain side space to be
provided - On appeal held: High Court not justified in reading
additional requirements into Regulation 33(7) after holding it
to be valid - In interpreting a statute, meaning of particular
words is to be found not so much in a strict etymological E
propriety of language, nor even in popular use, as in the
subject or occasion on which they are used and object that is
intended to be attained - Applying rules of grammar, the term
"which attracts the provisions of MHADA Act, 1976" could only
qualify the proximate substance "cessed building of A category F
in Island city" and nothing more - Interpretation of statutes -
Maharashtra Housing and Area Development Act, 1976 .
Problems arose in the island city of Mumbai with
regard to congestion of population. Various Acts were
enacted and amended in respect of repair and G
reconstruction of dilapidated buildings. The Development
"'
Control Regulations, 1991 were notified for greater
'
}-
Mumbai. Regulation 33(7) provided for reconstruction and
development of cessed buildings in the island city of
31
H
32
SUPREME COURT REPORTS
(2008] 13 S.C.R.
1
A cooperative housing societies or of old buildings
belonging to the Corporation. It also provided for
consumed FSI or FSI 2 whichever is higher. The
Regulation was amended time and again. The petitioners
filed writ petition on the ground that there was gross
B misuse of the amended Regulation 33(7) when it applied
to private buildings; that buildings which are otherwise
in good condition have been pulled down merely
because they were constructed prior to 1940; that there
are no guidelines as to who are the tenants or occupiers
c who are eligible to be protected under the Regulations.
High Court while holding that Regulation 33(7) does not
suffer from any illegality, held that the same applies only
to dilapidated buildings of 'A' category which satisfy the
requirement and those declared prior to the monsoon of
D 1997 under 3rd proviso are covered under Regulation
33(7) and are entitled to extra "Floor Space Index"; and
that certain side space would be provided. Hence, the
present appeal.
Allowing the appeal, the Court
E
HELD: 1.1 High Court was not justified in reading
additional requirements into Regulation 33(7) after holding
the same to be valid. [Para 43] [62-C-D]
1.2 If different language is used in the same section
F or in different sections, the legislative intent is that they
are intended to lead to different results and there is a
,.
conscious intent. [Para 25] [57-G]
Member Board of Revenue vs. Arthur Paul Benthall 1955
(2) SCR 842, 845 846; Commissioner of Income Tax, New
G Delhi now Rajasthan v. Mis East West Import and Export (P)
Ltd; Asian Distributors Ltd.}, Jaipur 1989 (1) SCC 760 - relied
on.
,,.
1.3 In the writ petitions filed there was no challenge
_..
H to Regulation 33(7) of the Development Control
JAYANT ACHYUT SATHE v. JOSEPH BAIN
33
'
D'SOUZA & ORS.
Regulations, 1991. Only incentive FSI was challenged. A
So far as Regulation 33(7) is concerned, there will btf no
acquisition in Chapter VIII. Stress is on spending money
out of the funds and of acquisitions. Chapter VIII-A
essentially deals with occupiers. Acquisition and the
·~
Board's role is that of certification. Under Regulation 33(7)
B
the occupier and the landlord are involved. There is no
acquisition and there is no government fund utilized.
There is a Transferable Development Right (TOR) and the
concept of incentive FSt [Para 26] [58-D-F]
1.4 A survey conducted by the Corporation in 1980- c
81 showed that 30,237 buildings would have crossed their
life span by 1996. The Kerkar Committee report recorded
that the vast majority of the buildings would have to be
reconstructed. The report on the Development Plan for
_,,
Greater Bombay showed that in 1.981, 5,82,200 tenements D
were required to house the natural growth of population.
In 1991 nearly 73% of the households occupied one room
tenements - vertical slums; 18% occupied two rooms i.e.
most of the persons - more than 90% lived in small areas.
Those occupying large areas constitute 2.7% only. E
Between 1961 and 1991, the number of households
increased to 20,88,000. Most of the tenements are of 100
to 120 sq. ft area only. The policy was to enhance the
quality of the lives of those living in such poor conditions
by increasing the living space to nearly double. This is to F
be contrasted with the need to give a better lifestyle to
those who can afford to live a leisurely life. If such people
have to undergo some hardships, the policy cannot be
faulted especially when they constitute a minority. [Paras
30, 31 and 32] [59-A-E]
G
1.5 In interpreting a statute, the meaning of particular
words is to be found not so much in a strict etymological
propriety of language, nor even in popular use, as in the
subject or occasion on which they are used and object
that is intended to be attained. [Para 33] [59-E-F]
H
34
SUPREME COURT REPORTS
[2008] 13 S.C.R.
~
A
1.6 The writ petitioners did not challenge the validity
of Regulation 33(9) pertaining to reconstruction by MHADA
or Regulation 33(7) in so far as it applies to the
reconstruction by the Government or the Municipal
Corporation even though the FSI is the same. The proviso
B to Regulation 33(7) allows Government, MHADA/
f
Corporation to get even more than the FSI specified in
Appendix Ill. Most of the buildings constructed prior to
1940 (17,490 buildings) were constructed prior to 1905.
Most of the buildings have outlived the period of their
c
survival by 1979. 80% were occupying one-room
tenements. [Paras 34 and 35] [59-G-H; 60-A-C]
Vivian Joseph Ferreira and Anr. v. The Municipal
Corporation of Greater Bombay and Ors. 1972 (1) SCC 70 -
referred to.
D
1. 7 Applying rules of grammar, the term "which
.....
attracts the provisions of MHADA Act, 1976" could only
qualify the proximate substance "cessed building of A
category in Island city" and nothing more. It would be
seen that with respect to reconstruction of buildings both
E Chapters VIII and VlllA require the building to be acquired
by the Board for the reconstruction in terms of Sections
92 and 103B (3). This is not the case with Regulation 33
(7). [Paras 36 and 37] [60-B-D]
Mahadeolal Kanodia v. The Administrator General of
F
West Bengal 1960 (3) SCR 578 - referred to.
1.8 Appendix Ill casts several duties on the Board for
the working of Regulation 33 (7) as inter alia: (a) Clause
3 requires certification of the occupiers and irrevocable
consent to be certified by the Board; (b) Clause 4 requires
G that the tenements have to be allotted to the occupiers as
per\ the list certified by the Board; (c) Clause 11 requires
the FSI as in Regulation 33 (7) should be allowed only
~ ,
after the Board is satisfied that the redevelopment
proposal satisfies all the conditions to be eligible for the
H benefits under the Regulations. [Para 38] [60-E-F]
JAYANT ACHYUT SATHE v. JOSEPH BAIN
35
}
D'SOUZA & ORS.
1.9 The challenge to the restriction of five feet open
A
space (1.5 metres) is hopelessly delayed and barred by time
as inter alia: (i) the requirement of limiting the open space to
five feet has been in existence since 1984 and was also a
part of Development Control Regulation of 1991. When the
·-i
. Board reconstructs a building it covers almost the entire
B
land save for five feet open space. The Sukthankar
Committee also recommended that the open space should
be 5 feet. The challenge to the restriction of five feet open
space has been made on the basis that the open spaces
are already too low and that the DC Regulations made it c
even less. [Paras 39 and 40] [60-H; 61-A-B]
Bombay Dyeing and Mfg. Co. Ltd. (3) v. Bombay
Environmental Action Group and Ors. 2006 (3) SCC 434 -
referred to.
1.10 The State and MHADA filed affidavits supporting D
the appeals. In the affidavit filed by the State, it was set
out that' : (i) The Town Planning Act does not define
category A cessed buildings and the reference to the
provisions of Development Act were only to explain what
E
the term "category A cessed buildings" meant. (ii) By and
large the old buildings constructed prior to 1940 were
built when there was no concept of FSI and the open
spaces were at times only .2 to 3 feet. (iii) The width of
most of the plots was about 30 feet and requiring a 12
feet open space to be left would mean .that there would
F
be no scope to redeveloR the buil.d,ing. (iv) Where a
building was in the set back area as per the development
plan, the land covered by the set back area had to be
given to the authorities and the road was widened. [Para
41] [61-C-F]
G
>-
1.11 In the affidavit filed by M HADA, it was set out
that: (i) Reference to Development Act is with reference
to the definition of cessed buildings which is not found
under the Town Planning Act or the DC Regulations and
H
36
SUPREME COURT REPORTS
[2008] 13 S.C.R.
A is found only in the Development Act. (ii) A perusal of
Regulation 33 (7) shows that the emphasis is on pre 1940
buildings and nothing more. (iii) Confining Regulation 33
(7) to only the private buildings and not the Government
buildings would make the Regulation arbitrary. (iv) Under
B Regulation 33 (10) the open space is 5 feet and to insist
on 12 feet as per the High Court judgment it would make
the same unreasonable and prevent even buildings which
are on the verge of collapse from being redeveloped. [Para
42] [61-G-H; 62-A-C]
C
Ba/co Employees Union (Regd.) v. Union of India and
D
E
Ors. 2002 (2) SCC 333 - referred to.
Case Law Reference
2002 (2) sec 333
Referred to.
24
1955 (2) SCR 842
Relied on.
25
1989 (1) sec 760
Relied on.
25
1972 (1) sec 10
Referred to.
35
1960 (3) SCR 578
Referred to.
36
2006 (3) sec 434
Referred to.
40
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 2970
of 2006
From the final Judgment and Order dated 17.10.2005 of
F the High Court of Judicature at Bombay in Writ Petition No.
,..
13189 of 2004
WITH
With C.A. Nos. 2971, 2972, 2973, 2974, 2975, 2978,
G 2979, 2976, 2977 of 2006, 5491, 5492, 5493, 5494, 5495,
5490, 5496 of 2008 and Cont. Pet. (C) No. 44/2008 in C.A. No.
2970 of 2006
B.A. Khan, R.F. Nariman, Dushyant Dave, Shyam Diwan,
H lndu Malhotra, M.L. Verma, C.A. Sundaram, Siddharth
,
JAYANT ACHYUT SATHE v. JOSEPH BAIN
O'SOUZA & 0.RS.
37
Bhatnagar, Shivangi Shastri, Sonia Dube, Indra Sawhney, Dr.
A
Saif Mahmood, Manisha Kapadia, Mryadunath Chaudhary,
Aman Vachher, H. Devarajan, Dhamm Chhapkar, P.N. Gupta,
Subhash Chandra Birla, S.G~ Birla, Yadunath Chaudhari, Pramit
Saxena, Amit Yadav, S.V. Deshpande, Anagha S. Desai,
SatyajitA. Desai, Amol N. Suryawanshi, Joaquim Reis, Santosh
B
Paul, M.J. Paul (for Mis. TTK Deepak & Co.) Shashi M. Kapija,
Sunita Ojha, Vikas Mehta, Dattatray Vyas, Mahima C. Shroff,
Chirag M. Shroff, B.V. Desai, Rahul Gupta, Reema Sharma,
Gaurav Agrawal, V.N. Raghupathy, Ravindra Keshavran Adsure,
Uday B. Dube and Kuldip Singh for the appearing parties.
c
The,Judgment of the Court was delivered by
Dr. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in these appeals is to the judgment of the
.,.
Bombay High Court which while holding that Regulation 33(7) of D
the Development Control· Regulations, 1991 (in short the
'Regulations') for the city of Mumbai as amended in the year
1999 does not suffer from any illegality, further observed that the
same applies only to dilapidated buildings of 'A' category which
satisfy the requirement and those declared prior to the monsoon
E _.
of 1997 under 3rd proviso are covered under Regulation 33(7)' .
and are entitled to extra "Floor Space Index" (in short 'FSI'). It -~
also direct~d that certain site space has also to be provided.
3. The conclusions essentially are as follows:
"For the reasons stated above, we hold that the petition is
very much maintainable and we read the provisions of the .
first part of D.C. Regulation 33(7) to cover only the privately
owned dilapidated buildings which require reconstruction .
F
· and w,bere,.,:the cost of structural repairs exceeds the G
monetary requirement specified under Section 88(3) of
the MHAD Act (vis. Rs,1200/- per sq.meter as of now)._
In the circumstances, prayer (b) of the petition deserves.to
be accepted th2ugh not prayer (a-) and D.C. Regulation
33(7) will have to be read to mean that only the dilapidated · H
38
SUPREME COURT REPORTS
[2008] 13 S.C.R.
A
buildings of "A" category which satisfy this requirement
(and those declared unsafe prior to the monsoon of 1997
under 3rd proviso thereof) are covered under D.C.
Regulation 33(7) and entitled to extra FSI provided therein.
B
As far as the challenge to the side spaces being reduced
to half as against what is otherwise provided, it was
)-
submitted that the provision is totally unreasonable. The
side spaces will now hardly be about 1.5 metres (about 5
feet) and for a building upto 24 metres, no separate fire
fighting arrangement will be insisted. This will almost mean
c
a building of ground plus 7 floors. The fire engines will not
be able to go inside. In our view, independently on the
merits of this submission, it. is required to be accepted.
It was submitted by the respondents that in the erstwhile
buildings there was hardly any space between two such
D
buildings and if one goes for a tower, i.e. above 24 metres,
obviously the side space will increase and the fire fighting
facilities will have to be provided. In our view, this is no
answer to the safety of the occupants with height of less
than 24 metres. We may not interfere into the reduction of
E
the recreational space or not providing the parking facilities
though that will also create difficulties for the residents of
such buildings. Considering that there is so much of space
crunch, we may not interfere into the decision of the rule
makers in that behalf. However, having the side space of
F
only 5 feet for buildings of the height less than 24 metres
(of ground plus 7 floors) is on the face of it something
difficult to substantiate. That provision of the D.C.
Regulations will have to be held as arbitrary, unreasonable
and violative of Article 14 of the Constitution. We have no
G
option, but to accept prayer (f) to this extent. The
requirement of reducing side spaces for the buildings to
be reconstructed is bad in law and they will have to be
provided with the minimum side spaces as required in the
....
buildings on small plots, vis. 3.6 metres.
H
The Apex Court has observed in its order of 21st April,
JAYANT ACHYUT SATHE v. JOSEPH BAIN
39
)
D'SOUZA & ORS. [DR. ARIJIT PASAYAT, J.]
2006 that no third party rights will be created and it further A
observed that it will be for the High Court to deal with that
aspect. This being the position, we direct, with a view not
to cause prejudice to the investors, that those projects of
reconstruction, which have already been approved, will
_,
proceed as it is. However, the buildings not having the
B
certificate of the cost of structural repairs exceeding Rs.
1200/- per sq. m. under section 88 (3) of the MHAD Act
will not be permitted reconstruction henceforth. For future,
the certificate under section 88 (3) of the MHAD Act, viz.
that the structural repairs cannot be carried out within the c
monetary limits specified therein will be mandatory
requirement whereafter if 70% of the occupants and the
landlord come together, the benefit under Regulation 33(7)
will be available and not otherwise. Similarly, in all such
buildings to be reconstructed, the side spaces will be
D
maintained at least as in the case of other buildings on
small plots vis. 3.6 metres."
4. The background facts in a nutshell are as follows:
The three writ petitioners (respondent Nos. 1, 2 and 3
E
herein) claiming to be public spirited citizens filed a writ petition
before the Bombay High Court. The 151 petitioner is a former
Municipal Commissioner of Mumbai, who is also a former Chief
Secretary of the State of Maharashtra. The 2nd petitioner has
been a member of various committees concerning urban
---
development. The 3rd petitioner is a Civil Engineer by profession
F
and for many years was an Executive Committee Member of
the Bombay Metropolitan Authority. He was also a _member of ,
the Slum Rehabilitation Committee constituted by the State of
Maharashtra.
The respondents in the writ petition were the State of G
Maharashtra through the Secretary, Urban Development
).
Department, Municipal Corporation of Greater Mumbai which
is the Planning Authority for the city of Mumbai under the
Maharashtra Regional and Town Planning Act, 1966 (in short
H
40
SUPREME COURT REPORTS
[2008] 13 S.C.R.
A
the 'Town Planning Act') whereunder the regulations are framed.
Respondent No.3 was a statutory authority constituted under
the Maharashtra Housing and Area Development Act, 1976 (in
short the 'Development Act'). The concerned authority is
Maharashtra Housing and Area Development Authority
B (MHADA). Respondent No.4 was the former Municipal
Commissioner of Mumbai whose report was amongst others
led to the amendment of the Regulations in the year 1999.
Several parties intervened in the matter. Two of them were the
property owners. One was the Property Owners' Association
C and one claimed to be a tenant in pre 1940 building. One of the
interveners was Property Redevelopers' Association. Intervener
No.6 was an Architect by profession who supported the petition
while others opposed the petition. Earlier, a Division Bench of
the High Court rendered a judgment on 17.10.2005. The Division
0
Bench accepted number of grievances and amongst others
appointed a few Committees to look into some such aspects
which according to it had relevance for the issues highlighted
in the petition. One of the interveners filed an appeal relatable
to Special Leave Petition(C) No.1376 of 2006 and others also
filed appeals. By order dated 14th July, 2006 this Court disposed
E of the appeals inter-alia with the following observations:
F
G
"The High Court has not dealt with the basic issues raised
in the petition, i.e. as to whether the amended Regulation
33(7) suffered from any infirmity. We, therefore, think it
appropriate to direct the High Court to examine those
issues. The parties shall be permitted to place their
respective stands before the High Court. It is open to the
appellants to canvass before the High Court as to the nonmaintainability of the writ petitions. The High Court shall
appropriately deal with the same. It needs no re-iteration
that the High Court shall examine the challenge to
Regulation 33(7) as amended in 1999."
Therefore, this Court directed the High Court to deal with
· only that issue relating to the validity of the provisions and the
H maintainability of the writ petitions. Intervention applications had
)-
JAYANT ACHYUT SATHE v. JOSEPH BAIN
41
D'SOUZA & ORS. [DR. ARIJIT PASAYAT, J.]
also been filed before this Court. These applications were also A
to be directed to be dealt with by the High Court.
The grievances of the petitioners as noted before the :-::~h
Court were as follows:
_,
"The petitioners are concerned with the problem of B
congestion of the population in the island city of Mumbai.
The island area of the city covers the area from Colaba in
the South to Mahim and Sion in the North (which originally
consisted of eight islands before they were all linked). The
areas of suburbs and extended suburbs are not covered c
when one speaks of the island city. The existing
infrastructure in the island city, particularly with respect to
roads, water supply, sewage system, open areas and
gardens, is already over stretched and under extreme
strain. The petitioners point out that the island city has D
'{
already reached the saturation point with respect to the
population that it can accommodate, which is not disputed
by any of the public authorities concerned. According to
the report entitled "Report on the Development Plan of
Greater Bombay, 1966", the total acreage of the island E.
city is 17, 388.83 acres and the ultimate population, which
it can accommodate, is 32 .. S lakhs. As of now, the existing
population of the_ island city is already in excess of this
figure of ultimate population. It is now estimated to be
33.4 lakhs. It is another matter that the population in the
_...,.
suburbs is much more, but the area covered there is also
F
much more than the island city. The petition is concerning
only the islar:id city.
There is no dispute whatsoever that the present pubic
- amenities are inadequate to cater to the present G
-
population. Hence, _accordJqg to the Petitioners, any cause
for the increase in the population in the island city has to
;>-.:
be appropriately dealt with. Coupled with this deterioration
of the infrastructure in the islafld city, it is also a fact that
a very large number of buildings, i.e. more than 16,500 H
A
B
c
D
E
F
G
H
42
SUPREME COURT REPORTS
[2008] 13 S.C.R.
(16,502 according to one estimate) were constructed prior
to 1940 and are in the need of urgent repairs and in some
cases reconstruction. The State has taken it upon itself to
see to it that these buildings are repaired and, wherever
necessary, reconstructed and for that purpose, it created
the Bombay Building, Repairs and Reconstruction Board
by passing the Bombay Building Repairs and
Reconstruction Board Act (Act No.XLVll of 1969). One of
the main reasons for this large number of unattended
buildings has been the freezing of the rent under the
Bombay Rents, Hotel and Lodging House Rates Control
Act, 194 7 ("the Bombay Rent Act" for short). Rents
received by the landlords were found very much insufficient
for them to carry out repairs.
The Bombay Buildings, Repairs and Reconstruction Board
Act was later on repealed and the activities under the Act
were taken over by the Maharashtra Housing and Area
Development Authority (MHADA) when the Maharashtra
Housing and Area Development Act (MHAD Act) was
passed in 1976. A cess was to be contributed by the
tenants of the private buildings known as Mumbai Building,
Repairs and Reconstruction Cess under Section 82 of
the said Act. Lands and buildings owned by the Central
Government, State Government, Municipal Corporation
of Mumbai, Mumbai Port Trusts, lands and buildings
vested in MHADA, lards and buildings of the Public Trusts
exclusively occupied for worship or educational purposes
and those vested in or leased to a cooperative society,
buildings exclusively in occupation of the owner, buildings
exclusively used for non-residential purposes and some
other properties as mentioned in section 83 were
exempted from this requirement of paying the cess. These
cessed buildings were divided into the following three
categories under section 84 of the MHAD Act.
Category "A"
Buildings erected prior to 1 /9/ 1940
JAYANT ACHYUT SATHE v. JOSEPH BAIN
43
>
D'SOUZA & ORS. [DR. ARIJIT PASAYAT, J.)
Category "B"
Buildings erected between 1/9/ 1940 and
A
31/12/1950
Category "C"
Buildings erected prior to 1/ 1/ 1951 and
30/12/1969
-•.
It appears to be the common case that as of now as per B
the affidavit of the State Government in the present matter,
there are some 16502 buildings in "A" Category, 1491
buildings in "B" Category and 1651 buildings in "C"
Category.
Chapter VIII of MHAD Act provided for repairs and c
reconstruction of dilapidated buildings. Under section 88
from Chapter VIII of the MHADAct, Mumbai Housing and
Area Development Board was supposed to undertake
structural repairs of the buildings, which were in ruinous
condition and likely to deteriorate and fall. However, section
D
88 (3) provides that where the cost of the structural repairs
exceed Rs.1200/- per sq. m., the Board may not consider
such buildings for repairs and issue a certificate to that
effect to the owner of the buildings and affix it on the building
for the information of occupiers and then proceed to take E
action as provided in this Chapter. Thereafter where the
occupiers were ready to contribute to the cost in excess
of Ps.1200/- per sq. metre, the Board may carry out the
structural repairs, for which a provision is made in section
89 of the MHAD Act. This will mean that oherwise the
F
steps for reconstruction will be taken by acquiring the
property as provided in sections 91 and 92 of this Chapter.
Section 91 provides for reconstruction where a building
suddenly collapses or becomes inhabitate due to fire,
torrential rein or tempest or otherwise. Section 92 lays G
down the procedure for acquisition where however a
building suddenly collapses."
~·
The High Court noted that there was no dispute that there
was hardly any progress in the matter of repairs and/or reconstruction by the procedure provided. Therefore, even in the
H
44
SUPREME COURT REPORTS
[2008] 13 S.C.R.
A year 1981 the Government appointed a Committee under one
Mr. Ajit Kerkar to consider the problems. The Committee
emphasized that there should be a shift from re-construction of
individual buildings to the re-development of the entire localities
and the formulation of a programme of urban renewal.
B
The High Court noted that it was a common case that
MHADA found it difficult to put in adequate funds for acquisition
of properties for reconstruction under Chapter Vil I of the
Development Act and, therefore, Chapter VII I-A was introduced
in the said Act. The provisions of this Chapter have been stated
C to be notwithstanding what was provided in Chapter VIII as
stated in Section 103-8 of Chapter VII I-A. The provisions under
this Chapter were to operate when 70% of the occupiers came
together and approached the Government to acquire the
property. They were required to assure to contribute towards
· D acquisition and take steps since the landlords were not
cooperating and under the Scheme of this Chapter the
developed buildings were to be given FSI 2. These provisions
3lso did not receive adequate response.
'
On 25.3.1991 the Regulations were notified for greater
E Mumbai. Regulation 33(7) to which these cases relate provided
for reconstruction-or re-development of cessed buildings in the
island city by cooperative housing societies or of old buildings
belonging to the Corporation. The Regulation provided for old
consumed FSI or FSI 2 whichever is higher. This Regulation
F was further amended on 25.1.1999 to provide the FSI of 2.5 on
the gross plot area or the FSI required for rehabilitation of the
existing tenants plus incentive FSI as specified in Appendix Ill
to the Regulations. This amendment was brought about after a
report was submitted by Study Group under the Chairmanship
G of Shri D.M. Sukhtankar, former Municipal Commissioner who
was respondent No.4 in the writ petition. The Study Group had
submitted its reply to the State Government in July 1997 leading
to amendments in the year 1999. The Regulation was further
amended by adding a new clause w.e.f. 27th February, 2004
H whereby apart from the Corporation buildings, those of
>- -
JAYANT ACHYUT SATHE v. JOSEPH BAIN
45
}
D'SOUZA & ORS. [DR. ARIJIT PASAYAT, J.]
Department of Police, Police Housing Corporation, Jail and
A
Home Guard of Government of Maharashtra constructed prior
to 1940 were also covered.
The main grievance in the writ petitions was that there
was gross misuse of the amended Regulation 33(7) when
B
·-'<
applied to private buildings with which the petitions were
concerned. They submitted that taking shelter under the
amended Regulation 33, there has been misuse by pulling down
buildings which are otherwise in good conditions merely
because they were constructed prior to 1940. It was further
submitted that there are no guidelines under the Regulations to c
lay down as to who are the tenants or occupiers who are eligible
to be protected under the Regulations. Numbers of instances
were cited. It was submitted that builders and developers and
people with money and muscle power were dishousing genuine
tenants/occupiers. The numbers of tenants/occupiers were D
·v
being inflated by creating bogus tenancies to claim extra FSI.
The consequence, it was submitted, was that there was going
to be unjustified and tremendous increase in the population in
the island city causing further strain on its infrastructure. It was
their case that the extra FSI as per the amended Regulation
E
was meant for the reconstruction of unsafe and dilapidated
buildings only and not for all the 16502 'A' category cessed
buildings. The dilapidated buildings are supposed to be just
about 10% of them. Accordingly, there was a prayer to prevent
strong and sound cessed buildings which are not in danger of
F
.,...,
collapse to be not pulled down and Regulation 33(7) should be
declared to be applicable only to those cessed buildings which
are dilapidated and are in unsound and in unsafe condition.
Challenge was to the reduction in the marginal open space
requirement for the buildings under Regulation 33(7) read with
G
Appendix Ill as provided for the buildings under other regulations
and ,it was prayed that same should be also struck down.
>-
Stand of the respondents apart from questioning the
maintainability of the writ petitions, the locus standi of the writ
H
46
SUPREME COURT REPORTS
[2008] 13 S.C.R.
A petitioners, was that Regulation 33(7) as amended was
applicable to all 'A' category cessed buildings which are
constructed prior to 1940. Whenever 70% of the tenants/
occupiers of such buildings came together alongwith their
landlords for redevelopment of their properties, they were entitled
B to get extra FSI. This will provide houses with minimum 225
sq.ft. free of cost to all tenants in these pre-1940 buildings.
Many of them are otherwise cramped in still smaller tenements.
The benefit could not be restricted only to the old and dilapidated
buildings. There was no such restriction contemplated under
c Regulation 33.
The High Court while upholding the validity of Regulation
33(7) accepted some of the prayers of the writ petitioners which
are led to the filing of the appeals.
D
5. Stand of appellants in these appeals is that the amended
Regulation 33(7) came into force on 25th January, 1999 after
inviting suggestions/objections from the public at large under
Section 37 of the Town Planning Act, 1966 and after considering
the same. Neither any suggestions nor any objections were
E filed by the writ petitioners nor did they challenge the said
amended D.C. Regulation 33(7) from 1999 till October, 2004.
In other words there was a delay of nearly 6 years.
6. It is submitted by learned counsel for the appellants that
Public Interest Litigation as claimed to have been filed is not
F maintainable. Such a petition lies at the instance of the a third
r
party only when it is shown that the affected person is unable to
approach the Court. It would not lie if a section of the public was
not interested in the cause. The writ petitioners did not file any
objections or suggestions when statutory notice was issued.
G Therefore, they could not have invoked Article 226 of the
Constitution and to pray that the High Court should consider
their suggestions and restrict the regulation to old and
dilapidated buildings beyond economic repair as set out in
Section 88 of the Development Act or to consider impact on
H environment or infrastructure due to unlimited FSI or to restrict
1
JAYANT ACHYUT SATHE v. JOSEPH BAIN
47
;
!-
D'SOUZA & ORS. [DR. ARIJIT PASAYAT, J.]
the FSI given to MHADA. They, therefore, seek to substitute the
A
High Court for the statutory authorities. This is not permissible.
The affected parties to any dispute on the PIL are essentially
the property owners and the persons against whom serious
allegations of alleged misuse of the regulation were made.
,_
These persons were not impleaded. It is a settled position in
B
law that in cases of public interest litigation the principles of
natural justice apply and any order passed without impleading
the affected parties would be bad. The prayer was to amend
the Regulations as framed. This prayer could not have been
accepted. As per the Kerkar Report the FSI permissible to the c
Board ranged between 3. 19 and 5.88. By the impugned
judgment the applicability of Regulation 33(7) was restricted to
dilapidated buildings, the cost of repair which was beyond the
statutory time limit fixed under Section 88 of the Development
Act. Such a course is impermissible as it is contrary to the D
intention of the delegated legislation in view of the clear use of
the expression "subject to the provision of MHADA Act" which
has been used in the directives issued under Section 154 of
Town Planning Act in January 1989. Notification dated 9.3.1989,
DC Regulation of 1991 and the amendments made in 1994 to
E
the DC Regulations of 1991 were deleted. The expression "old
and dilapidated cessed buildings" have been used in the
Government Policy on reconstruction of old buildings of
12.11.1984 and in the letter dated 20.3.1987 regarding
Regulations of 1991, and the amendments made in 1994 to the
....
Regulations of 1991. The expression "old and dilapidated
F
cessed building" had been used in the Government Policy on
Reconstruction of old buildings of 12.11.1984 and in the letter
dated 20.3.1987 regarding Regulations, and the said
expression is not found in Regulation 33(7). It has been
consistently held that landlord need not wait for th~ building to
G
get dilapidated as he is entitled to re-construct to augment his
income.
7. It is pointed out that the historical background has great
relevance also. With the advent of the Second World War in
H
48
SUPRENJE COURT REPORTS
[2008] 13 S.C.R
A
1939, rents in Bombay were frozen at 1939 levels, initially under
the Bombay Rent Restriction Act, 1939 and subsequently at
1940 levels under the Bombay Rent Act 194 7. As a resuit of the
freezing of rents on the one hand and increase in prices of
building materials, wages of workers etc. on the other, it was
B impossible for the landlords to carry out repairs to the buildings.
This led to collapse of some buildings. To meet this situation,
the Bombay Buildings Repairs and Reconstruction Board Act,
1969 was enacted on 1st October 1969. It was a temporary Act
for ten years. It was applicable only to the island city of Mumbai
c and not to the suburbs. The buildings in Mumbai were
categorized into three groups depending on their year of
construction viz.,
Category "A" Buildings constructed 16,502 buildings.
prior to 1 /09/1940
D
Category "B" Buildings constructed - 1,491 buildings.
between 1/09/1940
and 31/12/1950
Category "C" Buildings constructed - 1,651 buildings.
E
between 1/01/1951
and 30/12/1969
Total
19,644 cessed
buildings
F
8. A cess was levied on these buildings and the Repair
Board established under the said Act, had taken up the
responsibility of repairing the said buildings. In case the repairs
were beyond economic levels, such buildings were to be
acquired by the Board and reconstructed/ redeveloped.
G
9. The said 1969 Repairs Act was replaced by the
Development Act, which consolidated various Acts, including
the said 1969 Repairs Act, which was inserted into Development
Act as Chapter VIII with modifications. Collection of Cess
continued under the Development Act. Basic otJ.jective of
H Chapter VIII of said Act was to carry out structural repairs to the
' '
JAYANT ACHYUT SATHE v. JOSEPH BAIN
49
D'SOUZA & ORS. [DR. ARIJIT PASAYAT, J.]
cessed buildings and if they were beyond economic repairs to
A
acquire and reconstruct. This scheme. of reconstruction/
redevelopment failed. Thereafter in 1986, DevelopmentActwas
amended by incorporating ChapterVlllA by which 70% of the
occupiers of "A" category cessed builaings could come together
and acquire the property through Development Act for s
"reconstruction" on paying only 100 months net rent to the owner
[the rents were frozen at 1940 levels]. The owner had no role to
play in this scheme. The occupiers could acquire the building,
demolish the building and reconstruct it. This scheme of
reconstruction/ redevelopment also failed. The Government c
Policy for reconstruction/redevelopment from 12th November
1984 to 23rd November 1991 granting FSI 2 or consumed FSI
whichever is more, to the co-operative societies of the owners
and occupiers also failed.
10. Therefore, on 23rd March 1991, as part of the Town
D
Planning Act and not as part of Development Act, Regulation
No.33 (7) was brought into force in 1991.
11. Under Regulation 33(7), in 1991 the FSI was 2 or the
consumed Floor Space Index of the existing old building,
whichever is more. There was no incentive FSI. The minimum
E
carpet area for rehabilitating the tenants/occupiers in the new
building was 180 sq, ft. minimum upto a maximum of 735 sq.
ft. The redevelopment was to be "subject to the provisions of
the said Act" i.e. Development Act.
12. In 1994, DC Regulation 33(7) was amended to make
the FSI 2 on the gross plot area or the consumed Floor Space
Index, that is, the total built-up area of the existing old building,
whichever is more. This was also "subject to the provisions of
F
the said Act" i.e. Development Act. The said amendment to
G
D.C. Regulation 33 (7) in 1994, however failed to achieve the
desired object. In 1996, the Maharashtra Government therefore
constituted a Committee popularly known as "the Sukhtankar
Committee", which committed comprised of members from ail
affected groups including tenants, landlords, bureaucrats,
H
50
SUPREME COURT REPORTS
[2008] 13 S.C.R.
A experts, etc. It was a very broad-based Committee. The terms
of reference inter alia included how the reconstruction of the old
cess buildings could be speeded up.
13. After detailed deliberations held over a large number
of meetings, in July, 1997, the Sukhtankar Committee submitted
8
its report to the Government. It was noted in the said Report that
the life of most of the buildings in Category "A" had nearly come
to an end and instead of repairing such buildings periodically,
their reconstruction would be the only far sighted solution. It was
felt that without giving incentive FSI nothing could be achieved
C in respect of reconstruction and redevelopment of the old
buildings.
14.Therefore, amendment was made on 25•h .January 1999
to Regulation 33(7), under the provisions of the Town Planning
0 Act, whereby for reconstructing "A" category cessed buildings,
FSI of 2.5 was granted on the gross plot area or the FSI required
for rehabilitating the tenants plus 50% to 70% incentive FS],
(as specified in Appendix ill] whichever is more. The words
"subject to provisions" of Development Act were expressly
deleted.
E
15. Further under the 1st proviso to the amended Regulation
33(7), with the prior approval of the Government, MHADA and
the Corporation would be eligible to get additional incentive
F$1 over the otherwise permissible FSI as specified in Annexure
F
111 of these Regulations without any cap.
r
16. The history of the Regulation 33(7) framed under the
Town Planning Act, 1966 for reconstruction and redevelopment
and the scheme for reconstruction/ redevelopment under
Development Act shows that there are separate schemes under
G two separate Acts, that are self contained anc one cannot
borrow the provisions from one Act and incorporate them into
the other, without upsetting the scheme of Regulation 33(7)
""
read with Appendix Ill thereof.
H
17. The scheme under Regulation 33(7) involves landlords

52
SUPREME COURT REPORTS
[2008) 13 S.C.R.
A
22.