# PRATIBHA CO-OPERATIVE HOUSING SOCIETY LTD. AND ANR v. STATE OF MAHARASHTRA AND ORS

- **Citation:** [1991] 2 S.C.R. 745
- **Court:** Supreme Court of India
- **Decided:** 1991-05-09
- **Bench:** N.M. Kasliwal, M.M. Punchhi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pratibha-co-operative-housing-society-ltd-and-anr-v-state-of-maharashtra-and-ors-11148
- **Pages:** 7

## Headnote

Bombay Municipal Corporation Act-Housing Society-Violation of building laws-Rule 51 violation-Demolition orderedWhether valid.
A
B
The appellant Co-operative Housing Society Ltd. made some unauC
thorised constructions in a 36 storeyed building. The Bombay Municipal Corporation issued a show catise notice calling upon the society to
show cause as to why the upper eight floors of the building should not be
'liemolished so as to limit the development to the permissible Floor
Space Index (F .S.I.) since the additional Floor Space Index to the extent O
of 2773 sq. mts. was gained by the appellant. The appellants submitted
a reply to the show-cause notice. The Administrator of the Municipal
Corporation made an order on 21st September, 1984 requiriag the
appellant to demolish 24,000 sq. ft. on the eight upper floors of the
building on the basis of 3000 sq. ft. on each floor. The Administrator as
well as the State Government dismissed the representation and appeal
E
by the appellant. So the appellant ftled a writ petition in the High Court
which was also dismissed with the observation that the appellant be
given a choice to reduce the construction upto permissible limit by any
alternative proposal within the four corners of the rules and regulations
within one month from 28th October 1985 the Municipality may
consider.
The appellant made application to the Municipal Corporation
giving several alternative p,roposals on 21st November 1985. But it also
preferred a special leave petition before this court against the High
Court Judgment. The special leave petition was dismissed on January
F
17, 1986. The appellants alleged that they submitted another proposal to G
the Municipal Corporation on 17th February, 1986 and a meeting for
hearing alternative proposals was fixed up by the Municipal Commissioner and put forward its case in support of the new proposals and the
Municipal Commissioner said he would consider the proposals and take
decision. On 27th December 1988 the appellant w·rote a letter to the
Municipal Commissioner to consider the alternative proposals i.e. of H
745
746
SUPREME COURT REPORTS
[1991] 2 S.C.R.
A
vertical demolition of the building instead of demolishing the eight
upper fioors. In January, 1989 the officers of the corporation agreed
that demolition can be made vertically so as to bring the entire con-
. struction within the permissible Floor Space Index where as the work of
demolition of upper eight fioors of the building were entrusted to a
B company by the Municipal Commissitiner. So the appellant again filed a
writ in the High Court. It was dismissed by the Single Jndge as well as
by the Division Bench dated Sth March, 1990.
The appellants came by Special Leave Petition in this Court; The
main grievance of the appellant being that vertical demolition proposal
was not considered. lnspite of orders of this Court in this regard to the
C Mnnicipal Corporation no agreeable solution could fructify. The proposal was examined by the Municipal Commissioner but rejected on
13th November, 1990 and submitted the detailed report to this Court.
D
Dismissing the petition the Court
HELD: The appellant bad made illegal constructions in violation
of Floor Space Index to the extent of more than 24000 sq. ft. The
decision taken by the Municipal Commissioner does not suffer from any
want of jurisdiction nor is violative of any law or rules. It is well settled
that the High Court under Article 226 of the Constitution is not an
E
appellate Court on the administrative decision taken by the authorities.
Since the tendency of raising unlawful constructions and unauthorised
encroachments is increasing in the entire country and such activities are
required to be dealt with by ill'm bands. Such unlawful constructions
are against public interest and hazardous to the safety of occupiers and
residents of the multistoreyed buildings. [749F, 7SOB, E·F]
F
This case should be a pointer to all the builders that making of
unauthorised construction nev

## Text

-j.
PRATIBHA CO-OPERATIVE HOUSING SOCIETY LTD.
AND ANR.
v.
STATE OF MAHARASHTRA AND ORS.
MAY 9, 1991
[N.M. KASLIWAL AND M.M. PUNCHHI, JJ.]
Bombay Municipal Corporation Act-Housing Society-Violation of building laws-Rule 51 violation-Demolition orderedWhether valid.
A
B
The appellant Co-operative Housing Society Ltd. made some unauC
thorised constructions in a 36 storeyed building. The Bombay Municipal Corporation issued a show catise notice calling upon the society to
show cause as to why the upper eight floors of the building should not be
'liemolished so as to limit the development to the permissible Floor
Space Index (F .S.I.) since the additional Floor Space Index to the extent O
of 2773 sq. mts. was gained by the appellant. The appellants submitted
a reply to the show-cause notice. The Administrator of the Municipal
Corporation made an order on 21st September, 1984 requiriag the
appellant to demolish 24,000 sq. ft. on the eight upper floors of the
building on the basis of 3000 sq. ft. on each floor. The Administrator as
well as the State Government dismissed the representation and appeal
E
by the appellant. So the appellant ftled a writ petition in the High Court
which was also dismissed with the observation that the appellant be
given a choice to reduce the construction upto permissible limit by any
alternative proposal within the four corners of the rules and regulations
within one month from 28th October 1985 the Municipality may
consider.
The appellant made application to the Municipal Corporation
giving several alternative p,roposals on 21st November 1985. But it also
preferred a special leave petition before this court against the High
Court Judgment. The special leave petition was dismissed on January
F
17, 1986. The appellants alleged that they submitted another proposal to G
the Municipal Corporation on 17th February, 1986 and a meeting for
hearing alternative proposals was fixed up by the Municipal Commissioner and put forward its case in support of the new proposals and the
Municipal Commissioner said he would consider the proposals and take
decision. On 27th December 1988 the appellant w·rote a letter to the
Municipal Commissioner to consider the alternative proposals i.e. of H
745
746
SUPREME COURT REPORTS
[1991] 2 S.C.R.
A
vertical demolition of the building instead of demolishing the eight
upper fioors. In January, 1989 the officers of the corporation agreed
that demolition can be made vertically so as to bring the entire con-
. struction within the permissible Floor Space Index where as the work of
demolition of upper eight fioors of the building were entrusted to a
B company by the Municipal Commissitiner. So the appellant again filed a
writ in the High Court. It was dismissed by the Single Jndge as well as
by the Division Bench dated Sth March, 1990.
The appellants came by Special Leave Petition in this Court; The
main grievance of the appellant being that vertical demolition proposal
was not considered. lnspite of orders of this Court in this regard to the
C Mnnicipal Corporation no agreeable solution could fructify. The proposal was examined by the Municipal Commissioner but rejected on
13th November, 1990 and submitted the detailed report to this Court.
D
Dismissing the petition the Court
HELD: The appellant bad made illegal constructions in violation
of Floor Space Index to the extent of more than 24000 sq. ft. The
decision taken by the Municipal Commissioner does not suffer from any
want of jurisdiction nor is violative of any law or rules. It is well settled
that the High Court under Article 226 of the Constitution is not an
E
appellate Court on the administrative decision taken by the authorities.
Since the tendency of raising unlawful constructions and unauthorised
encroachments is increasing in the entire country and such activities are
required to be dealt with by ill'm bands. Such unlawful constructions
are against public interest and hazardous to the safety of occupiers and
residents of the multistoreyed buildings. [749F, 7SOB, E·F]
F
This case should be a pointer to all the builders that making of
unauthorised construction never pays and is against the interest of the
society at large. The rules, regulations and by laws are made by the cor·
porations or development authorities taking in view the larger public
interest of the society and it is the bounden duty of the citizens to obey
G
and follow such rules which are made for their own benefits. [750H-751B]
CIVIL APPELLATE JURISDICTION: Special Leave Petition
(Civil) No. 5383 of 1990.
•
From the Judgment and Order dated 9.3.1990 of the Bombay
H
High Court in Appeal No. 231of1990 in W.P. No. 3016 of 1989.
HOUSING SOCIETY v. STATE OF MAHARASHTRA [KASLIWAL, J.]
747
K.K. Venugopal, G.L. Sanghi, Sudhir Shah and P.N. Misra for
the Petitioners.
K.K. Singhvi, N.B. Shetye, D.N. Mishra and A.S. Bhasme for the
Respondents. - ··
The Judgment of the Court was delivered by
KASLIWAL, J. This petition under Article 136 of the Constitution of India is directed against the order of Bombay High Court dated
9th March, 1990.
Facts necessary and shorn of details are given as under. Pratibha
Cooperative Housing Society Ltd. (hereinafter referred to as 'the
Housing Society') made some unauthorised constructions in a 36
storeyed building in a posh and important locality of the city of
Bombay. The Bombay Municipal Corporation issued a showcause
notice dated 7th August, 1984 calling upon the Housing Society to
showcause within 7 days as to why the upper eight floors of the building should not be demolished so as to limit the development to the
permissible Floor Space Index (F.S.I.). In the notice it was stated that
additional F.S.I. to the extent of 2773 sq. mts. was gained by the
Housing Society and that the construction work had already reached
36 floors and that on the basis of the actual area of the building, the
upper eight floors were beyond the permissible F.S.I. limit and as such
were required to be removed. The Housing Society submitted a reply
to the showcause notice by their letter dated 13th August, 1984. The
Administrator of the Bombay Municipal Corporation made an order
A
B
c
D
E
on 21st September, 1984 requiring the Housing Society to demolish
24,000 sq. ft. on the eight upper floors of the building on the basis of
3000 s(j. ft. on each floor. The Housing Society made a representation
F
but the same was dismissed by the Administrator by order dated 31st
October, 1984. An appeal submitted by the Housing Society was also
dismissed by the State Government on 7th October, 1985. The Housing Society then filed a writ petition No. 4500 of 1985 in the High
Court. A Division Bench of the High Court dismissed the writ petition
on 28th October, 1985. However, the High Court while dismissing the G
writ petition also observed as under:
"It W02_ld, however, be fair and just in the circumstances of
the case to give a choice to the society to reduce the construction up to permissible limit or whatever other method
they can think of. It is of course for the society to come
H
748
SUPREME COURT REPORTS
I 1991] 2 S.C.R.
A
forward with a proposal in that behalf. We therefore direct
that in case the society comes with any such alternative
proposal within the four corners of the rules and regula-
•
!ions within one month from today the Municipality may
-~
consider."
B
The case of the Housing Society is that in pursuance to the said order it
submitted application to the Municipal Corporation giving several
alternative proposals on 21st November, 1985. It may be noted.at this
stage that the Housing Society had preferred a special leave petition
No. 17351 of 1985 before this Court against the judgment of the High
~
Court dated 28th October, 1985 and the said special leave petition was
c
dismissed by this Court on 17th January, 1986. Further allegation of
the Housing Society was that it submitted another proposal to the
Municipal Corporation on 17th February, 1986 and thereafter wrote to
the Municipal Council on 14th August, 1986 to consider their altemative proposals. A similar letter was also written to the Chief Minister
of Maharashtra. On 29th August, 1986 the Municipal Commissioner
D
fixed up a meeting for hearing the alternative proposals of the Housing Society. It has been alleged that in the said meeting the Housing
~
Society had put forward its case in support of the new proposals and
the Municipal Commissioner had thereafter informed the Housing
Society that he would consider the said proposals and take decision.
However, no decision was taken till the filing of the present special
E
leave petition before this Court. it has been further alleged that on
27th December, 1988 the Housing Society wrote a letter to the Municipal Commissioner to consider the alternative proposals mainly of vertical demolition of the building instead of demolishing the eight upper
floors. It has been alleged that a meeting took place between the
architects of the Housing Society as well as the officers of the MuniciF
pal Corporation in January, 1989 wherein the officers of the Corporation agreed that instead of demolishing eight upper floors, deiflblition
can be made vertically so as to bring the entire construction within the
permissible F.S.I. It has been further alleged that immediately thereafter the Housing Society was informed that ·henceforth it should con- ..
tact the Municipal Commissioner directly and not any officers of the
G
Corporation. It has been further alleged that the Corporation without
considering the proposals of the Housing Society entrusted the work of
demolition of the upper eight floors of the building to a company. In
these circumstances the Housing Society filed writ petition No. 3016 of
1989 in the High Court. Learned Single Judge dismissed the writ petiti on by order dated 19th December, 1989 and the appeal preferred
H
against the said order was dismissed by the Division Bench of the High
•
HOUSING SOCIETY v. STATE OF MAHARASHTRA [KASL!WAL. J.]
749
Court by order dated 9th March, 1990.
In view of the fact that the main grievance of the Housing Society
was that its alternative proposal of demolishing the building vertically
instead of eight upper floors was not considered on merits by the
Corporation, a serious effort was made by this Court to get the feasibility of such proposal examined by the Corporation. Orders in this
regard were passed by this Court on several occasions but ultimately
no agreeable solution could fructify. The proposal was got examined
at the highest level by the Municipal Corporation and ultimately the
Commissioner rejected the proposal on 13th November, 1990 and submitted a detailed report in writing for the perusal of this Court. In the
above report it has been stated that in pursuance to the order of this
Court dated 22nd October, 1990, the proposals submitted by the
Housing Society on 27th October, 1990 and 29th October, 1990 in
supersession of all alternative proposals, to demolish vertically one
bedroom and servant quarters on all the floors to bring the building in
tune with the F.S.I. was considered but on the grounds stated in the
report the proposal submitted by the Housing Society cannot be
approved.
In the circumstances mentioned above on the request of learned
counsel for both the parties to decide the case on merits, we heard the
arguments in detail on 23.4.1991. Thereafter, in order to clarify some
A
B
c
D
points we directed the Chief Engineer cum Architect and the MuniciE
pal Commissioner to remain present on the next date namely, 1.5.1991
and to keep the record of the case also ready for our perusal.
We have heard learned counsel for the parties at great length and
have thoroughly perused the record. It may be noted that the Housing
Society had made illegal constructions in violation of F.S.I. to the
F
extent of more than 24,000 sq. ft. and as such an order for demolition
of eight floors was passed by the Administrator, Municipal Council as
back as 21st September, 1984. The writ petition filed against the said
order was dismissed by the High Court on 28th October, 1985 and
special leave petition against the said order of the High Court was also
dismissed by this Court. The High Court in its order dated 28th
G
October, 1985 had granted an indulgence to the Housing Society for
submitting an alternative proposal within the four corners of the rules
aud regulations within one month and the municipality to consider the
same. The proposal was submitted on 21st November, 1985 but in the
said proposal there was no mention.of any vertical demolition of the
building. The proposal with regard to the demolition vertically of one
H
A
B
c
D
750
SUPREME COURT REPORTS
I 1991] 2 S.C.R.
bedroom and servant quarters on all the floors was submitted for the
first time on 27th December, 1988. During the pendency of the special
leave petition before this Court, this proposal was got examined by the
Municipal Corporation. The Municipal Commissioner submitted a
report on 13th November, 1990 giving detailed reasons for rejecting
such proposal. It is well settled that the High Court under Article 226
of the Constitution is not an Appellate Court on the administrative
decisions taken by the authorities. It cannot be sa.id that the decision
taken by the Municipal Commissioner suffers from any want of jurisdiction or is violative of any law or rules. The proposal submitted by
the Housing Society was got examined by the architects and engineers
and thereafter the order was passed by the Municipal Commissioner.
It cannot be said that the action of the Municipal Corporation is
tainted with ma/a [ides. It was submitted by the learned counsel for the
Corporation that the Corporation has entrusted the matter for investigation by the CBI and suitable action is being processed against the
guilty officers of the Corporation with whose connivance these illegal
constructions were made by the Housing Society.
It is an admitted position that six floors have been completely
demolished and a part of seventh floor has also been demolished. It
was pointed out by Mr. K.K. Singhvi, learned counsel for the Corporation that the tendency of raising unlawful constructions by the builders
in violation of the rules and regulations of the Corporation was
E
rampant in the city of Bombay and the Municipal Corporation with its
limited sources was finding it difficult to curb such activities. We are
also of the view that the tendency of raising unlawful constructions and
unauthorised encroachments is increasing in the entire country and
such activities are required to be dealt with by firm hands. Such unlawful constructions are against public interest and hazardous to the safety
F
of occupiers and residents of multistoreyed buildings. The violation of
F.S.I. in the present case was not a minor one but was to an extent of
more than 24,000 sq. ft. Such unlawful construction was made by the
Housing Society in clear and flagrant violation and disregard of F.S.I.
and the order for demolition of eight floors had attained finality right
upto this Court. The order for demolition of eight floors has been
G
substantially carried out and we find no justification to interfere in the
order passed by the High Court as well as in the order passed by the
Municipal Commissioner dated 13th November, 1990.
In the result we find no force in the petition and the same is
dismissed with no order as to costs. Before parting with the case we
H
would like to observe that this case should be a pointer to all the
-l
HOUSING SOCIETY v. STATE OF MAHARASHTRA [KASLIWAL, J.l
751
builders that making of unauthorised construdions never pays and is
against the interest of the society at large. The rules, regulations and
bylaws are made by the Corporations or development authorities taking in view the larger public interest of the society and it is the
bounden duty of the citizens to obey and follow such rules which are
made for their own benefits.
S.B.
Petition dismissed.
A
B