# SHREE RAM URBAN INFRASTRUCTURE LTD. & ANR v. STATE OF MAHARASHTRA & ORS

- **Citation:** [2019] 16 S.C.R. 993
- **Court:** Supreme Court of India
- **Decided:** 2019-10-24
- **Case number:** Civil Appeal Nos. 8265-8266 of 2019
- **Bench:** Arun Mishra, Vineet Saran
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shree-ram-urban-infrastructure-ltd-anr-v-state-of-maharashtra-ors-33918
- **Pages:** 53

## Headnote

Urban Development:
Town Planning - Permission to construct residential building
to appellant-company - Commencement Certificate granted under
the provisions of Maharashtra Regional and Town Planning Act,
1966 read with Development Control Regulations for Greater
Bombay, 1991 (DCR) - Thereafter incorporation of clause 24 to
Regulation 33 of 1991 Regulations providing for permission to
develop multi-storeyed Private Parking Lots (PPL) - On handingover of the PPL to the Corporation, incentive FSI was to be allowed
on the land belonging to the private owners - Appellant-Company's
application for construction of PPL approved upto 15 floors -
Incentive FSI of the PPL was to be used by the appellant -company
in the main residential building - Though commencement certificate
for PPL was given only for upto plinth level, the appellant-company
constructed all 15 floors - Appellant-company completed the
construction of main residential building upto 56 floors, though
commencement certificate for that was only upto 43rd floor -
Thereafter the Corporation issued a Circular on 22.6.2011
restricting the PPL to two basements, ground and four upper floors
- Notice u/s. 51 and s.354A of 1966 Act seeking revocation of
commencement certificate and for stopping the work of PPL beyond
plinth level - Suit by the appellant-Company - Civil Court decreed
the suit declaring the stop-work notice as illegal on the ground that
construction of PPL above the plinth level was under deemed
permission in terms of Regulation 6(4) of DCR - In appeal, High
Court set aside the decree holding that construction of PPL above
plinth level and construction of residential building above 43rd floor
was illegal since they were constructed without obtaining
commencement certificate (s) and the Court directed the appellant
to apply for regularisation of these construction - PIL was filed
 [2019] 16 S.C.R. 993
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before High Court challenging construction of residential building
and construction of PPL above plinth level - The High Court in the
PIL held that construction of PPL was not illegal and that since the
FSI granted in respect of refuge area was excessive, Commissioner
was directed to re-examine the issue - On direction of High Court
in PIL, Commissioner passed order dated 12.09.2013 - The order
dated 12.09.2013 was challenged by the appellant before High Court
and also sought direction to the Commissioner to take over possession
of PPL and to endorse the commencement certificate for residential
building upto 56 floors -The Commissioner passed order dated
31.08.2016 deciding the refuge area - Subsequently Notice u/s. 51
of 1966 Act was withdrawn by the Corporation - Another PIL was
filed challenging the order dated 10.11.2016 whereby the
Corporation had held that since the construction of PPL had
proceeded substantially on the date of notice u/s. 51, the Planning
Authority cannot revoked or modify the permission - The PILs have
been transferred to Supreme Court - Held: The construction of the
main building as well as the PPL were as per the sanctioned plan -
The construction of PPL beyond plinth level was under deemed
permission under Regulation 6(4) of 1991 Regulations - The refuge
area as determined by the Commissioner by order dated 31.08.2016
does not call for interference - Corporation is directed to take over
possession of PPL and to proceed to decide about the 13 floors
(44th to 56th floors) of the residential building - Maharashtra
Regional and Town Planning Act, 1966 - ss. 48 and 51 -
Development Control Regulations for Greater Bombay, 1991 - Regn.
6(4), 5(6) and 33 (24).
Partly allowing the appeal and dismissing the Transfer
petitions, the Court
HELD: 1.1 It is provided in the first Proviso to section
48 of Maharashtra Regional and Town Planning Act, 1966 that
permission for development or deemed permission shall remain
in force for a period of 1 year from the date of receipt of such
gr

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SHREE RAM URBAN INFRASTRUCTURE LTD. & ANR.
v.
 STATE OF MAHARASHTRA & ORS.
(Civil Appeal Nos. 8265-8266 of 2019)
OCTOBER 24, 2019
[ARUN MISHRA AND VINEET SARAN, JJ.]
Urban Development:
Town Planning - Permission to construct residential building
to appellant-company - Commencement Certificate granted under
the provisions of Maharashtra Regional and Town Planning Act,
1966 read with Development Control Regulations for Greater
Bombay, 1991 (DCR) - Thereafter incorporation of clause 24 to
Regulation 33 of 1991 Regulations providing for permission to
develop multi-storeyed Private Parking Lots (PPL) - On handingover of the PPL to the Corporation, incentive FSI was to be allowed
on the land belonging to the private owners - Appellant-Company's
application for construction of PPL approved upto 15 floors -
Incentive FSI of the PPL was to be used by the appellant -company
in the main residential building - Though commencement certificate
for PPL was given only for upto plinth level, the appellant-company
constructed all 15 floors - Appellant-company completed the
construction of main residential building upto 56 floors, though
commencement certificate for that was only upto 43rd floor -
Thereafter the Corporation issued a Circular on 22.6.2011
restricting the PPL to two basements, ground and four upper floors
- Notice u/s. 51 and s.354A of 1966 Act seeking revocation of
commencement certificate and for stopping the work of PPL beyond
plinth level - Suit by the appellant-Company - Civil Court decreed
the suit declaring the stop-work notice as illegal on the ground that
construction of PPL above the plinth level was under deemed
permission in terms of Regulation 6(4) of DCR - In appeal, High
Court set aside the decree holding that construction of PPL above
plinth level and construction of residential building above 43rd floor
was illegal since they were constructed without obtaining
commencement certificate (s) and the Court directed the appellant
to apply for regularisation of these construction - PIL was filed
 [2019] 16 S.C.R. 993
993
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before High Court challenging construction of residential building
and construction of PPL above plinth level - The High Court in the
PIL held that construction of PPL was not illegal and that since the
FSI granted in respect of refuge area was excessive, Commissioner
was directed to re-examine the issue - On direction of High Court
in PIL, Commissioner passed order dated 12.09.2013 - The order
dated 12.09.2013 was challenged by the appellant before High Court
and also sought direction to the Commissioner to take over possession
of PPL and to endorse the commencement certificate for residential
building upto 56 floors -The Commissioner passed order dated
31.08.2016 deciding the refuge area - Subsequently Notice u/s. 51
of 1966 Act was withdrawn by the Corporation - Another PIL was
filed challenging the order dated 10.11.2016 whereby the
Corporation had held that since the construction of PPL had
proceeded substantially on the date of notice u/s. 51, the Planning
Authority cannot revoked or modify the permission - The PILs have
been transferred to Supreme Court - Held: The construction of the
main building as well as the PPL were as per the sanctioned plan -
The construction of PPL beyond plinth level was under deemed
permission under Regulation 6(4) of 1991 Regulations - The refuge
area as determined by the Commissioner by order dated 31.08.2016
does not call for interference - Corporation is directed to take over
possession of PPL and to proceed to decide about the 13 floors
(44th to 56th floors) of the residential building - Maharashtra
Regional and Town Planning Act, 1966 - ss. 48 and 51 -
Development Control Regulations for Greater Bombay, 1991 - Regn.
6(4), 5(6) and 33 (24).
Partly allowing the appeal and dismissing the Transfer
petitions, the Court
HELD: 1.1 It is provided in the first Proviso to section
48 of Maharashtra Regional and Town Planning Act, 1966 that
permission for development or deemed permission shall remain
in force for a period of 1 year from the date of receipt of such
grant, and thereafter it shall lapse. It can be extended from year
to year, but such extended period shall in no case exceed three
years. The second proviso, as inserted by way of amendment of
MRTP Act in 2007, provides that if the development is not
completed up to plinth level or where there is no plinth, up to the
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upper level of basement or stilt, as the case may be, within the
period of 1 year or extended period, under the first proviso, it
shall be necessary for the applicant to make application for fresh
permission. The main Section 48 does not deal with the situation
where construction has been made up to plinth level or where
there is no plinth, up to the upper level of basement or stilt, as
the case may be, and neither first proviso deals with the situation
above. The interpretation of the second proviso is clear that in
case construction has been made up to the plinth level or where
there is no plinth, up to the upper level of the basement or stilt,
within 4 years, it shall not be necessary for the applicant to make
application for fresh permission for development in the light of
the second proviso to Section 48. [Para 40] [1018-D-H]
1.2 Regulation 5(6) of Development Control Regulations
for Greater Bombay, 1991 (DCR) deals with the commencement
of the work. It does not deal with the situation mentioned in the
second proviso to Section 48 of the Act. Regulation 5(6) provides
that on expiry of one year if the work has not already commenced
and such renewal can be done for three consecutive terms of one
year each. The Regulation has to be interpreted in tune with the
provisions contained in Section 48, as amended. It cannot curtail
the ken of Section 48. Thus in case construction has been done
up to the plinth level within four years from the date of
development permission, it would not be necessary to obtain it
afresh. The finding of the High Court, to the contrary, is set aside.
[Para 41] [1019-A-B]
1.3 It is apparent in the present case that in principle the
approval had been granted to raise the Public Parking Lot (PPL).
On 18.6.2010 at that time, Regulation 33(24) of DCR there was
no restriction on the floors of PPL that came to be introduced in
2014 before that the completion of PPL has taken place. The
PPL has been validly constructed under deemed permission.
Additional FSI would be available as soon as the Corporation
takes over the PPL. The High Court had directed the Corporation
to decide the fate of 13 floors beyond the 44th floor in the impugned
order concerning which the decision has to be taken as ordered
by the High Court to the Corporation. The fact remains that
residential building, as well as the PPL, have been constructed
as per sanctioned plan, and now a final decision has to be taken
SHREE RAM URBAN INFRASTRUCTURE LTD. & ANR. v.
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by the Corporation regarding 44 to 56 floors as ordered by the
High Court. The High Court rightly held that construction was
not illegal as the development permission was granted, the plan
was sanctioned for PPL as well as for the residential building.
[Para 44] [1020-D-F]
1.4 It is apparent from Regulation 6(4) of DCR that the
purpose of the intimation to be given by licensed surveyor,
engineer, structural engineer or supervisor or his architect in
the form of Appendix XVI to the Commissioner on completion of
work up to plinth level is to enable the Commissioner to inspect
to ensure that the work conforms to the sanctioned plans. It is
the Commissioner's satisfaction that work conforms to the
sanctioned plans, not that of Architect of builder. It is for the
Commissioner to satisfy himself, he has to inspect the work jointly
with the licensed technical person or Architect within 15 days
from the receipt of such notice, and thereupon he has to form an
opinion whether the work conforms to the sanctioned plans and
thereupon he is required to give or refuse permission for further
construction as per the sanctioned plans. It is also provided under
Regulation 6(4) of DSR that if within the period of 15 days, the
permission is not refused, it shall be deemed to have been granted
provided the work is carried out according to the sanctioned
plans. Thus, it is necessary to decide whether to give permission
or to refuse after inspection within 15 days of the notice. However,
it is necessary for deemed permission to come into play; work
of foundation up to the plinth level had been carried out
according to the sanctioned plans. [Paras 52 and 53] [1024-F-H;
1025-B]
1.5 When Form XVI and the intimation submitted by
appellant's Architect on 7.5.2011 is compared, it becomes clear
that notice given is rightly addressed to the Executive Engineer.
The subject mentioned is the development of PPL as per the
provisions of Regulation 33(24). The requirement that
construction up to plinth/column up to the plinth level has been
completed, in accordance with the approved plan, fulfils the
requirement of the first part of the format Appendix XVI
mentioned before the word "date." After the word "date", the
requirement in the prescribed format is that "the work has been
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completed under my supervision" and "in accordance with the
sanctioned plan." The latter portion, in accordance with the
sanctioned plan, has been mentioned in so many words. The only
difference is the format prescribes that the work has been done
"under my supervision and in accordance with the sanctioned
plan.". It has been mentioned that "we have complied (sic -
completed) work up to plinth as per approved plans." The
architect, by the aforesaid expression, is owning that he has
completed the work as per the approved plans. He owns
responsibility upon himself that he has 'complied with' or
'completed the work' up to the plinth level as per approved plans,
which would obviously mean that it has been done under his
supervision. [Paras 56 and 57] [1027-B-F]
1.6 In the suit filed by the appellant in the plaint, it has
been stated that the plaintiff's Architect has served notice on
7.5.2011 under Regulation 6(4) of DCR. No reply or any rejection
was received within 15 days from the corporation/defendants. In
written statement, the Corporation has nowhere denied that they
received the notice dated 7.5.2011, nor it is denied that there
was deemed permission, after the lapse of 15 days of notice under
DCR 6(4). Thus, in the civil suit, for want of denial, no issue was
framed on the aspect of deemed permission. Apart from that, the
witness of the Corporation has admitted in the cross-examination
that the letter issued by the plaintiff to the Corporation for
obtaining further commencement certificate for the construction
of public parking building, was received by the Corporation and
that the Corporation did not reply to the said letter. It is not the
case anywhere set up by the Corporation that the construction
up to plinth was not as per the sanctioned plan. Thus, the deemed
permission has come in force under Regulation 6(4), on expiry of
15 days from the service of notice dated 7.5.2011.
[Paras 58 and 59] [1028-D; 1029-C]
1.7 It was also not the case set up by the Corporation that
the notice dated 7.5.2011 was illegal, and it did not conform to
Form XVI as prescribed under Regulation 6(4). The factum of
the receipt of the notice has been admitted. The submission raised
in the PIL that notice dated 7.5.2011 is a doubtful document is
belied by the record of the Corporation and the admission made
by the witness of the Corporation. The notice dated 7.5.2011 was
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available on the file of the Corporation, but it was not replied.
The Division Bench of the High Court while deciding the PIL
called for the inward register to verify whether the Corporation
received the notice. It is apparent that the Division Bench of the
High Court has seen the inward register also and there is a
corresponding entry on 7.5.2011 as regards the acceptance of
notice. It seems to have been made in the usual course. In the
PIL no such plea was taken that the notice was not in Form XVI,
and it was illegal. In First Appeal the Corporation did not challenge
the finding of the civil court, nor did it raise the ground that owing
to the failure to submit a notice in Form XVI, the letter dated
7.5.2011 cannot be treated as valid intimation and as such deemed
permission did not accrue. The main ground raised in PIL was
about FSI, and concerning public car parking proposal. In the
special leave petition preferred against the decision of the High
Court in PIL, this ground was not raised, nor was it raised before
the High Court in the PIL. Thus, it was not considered appropriate
by this Court to reopen the matter and reconsider it. Thus, all
the issues were left open. They were only those raised earlier in
the PIL by Janhit Manch. It is also pertinent to mention that in
compliance of the order passed by the High Court on 13.5.2013,
the Corporation has passed order on 12.9.2013, before filing the
First Appeal in the High Court, in which the Commissioner of
the Corporation has clearly held that in view of notice dated
7.5.2011 as per Regulation 6(4), the deemed permission came
into effect on lapse of 15 days. [Paras 60, 61, 62 and 63] [1029-GH; 1030-A-F-H; 1032-B-H; 1033-A-B]
1.8 The principle of constructive res judicata bars the
Corporation and the petitioner in PIL to take somersault and
take a different stand in the subsequent litigation and all the
available pleas, which could have been taken in previous civil
suit and PIL, ought to have been raised, otherwise raising of
them in subsequent lis. It is not open to the parties to take a
different stand at different stages. In the instant matter, these
questions cannot be taken up by the petitioner in PIL and the
Corporation has not come up in the appeal against the decision
dated 13.5.2013 of the High Court and has complied with the
order bypassing the order dated 12.9.2013. As against the
subsequent decisions taken by the Corporation according to the
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impugned judgment and order, Janhit Manch is before this Court.
[Paras 64 and 65] [1033-C-F]
1.9 Thus the finding of the High Court concerning the
illegality of the notice dated 7.5.2011 is not sustainable on merits.
There was substantial compliance with Form, and the purpose of
giving notice is only to enable the Commissioner to inspect and
ensure that the construction raised is as per the sanctioned plan.
There is admission made by the witness of the Corporation that
the entire construction is as per the sanctioned plan and since
the Commissioner failed to inspect after notice, thus deemed
permission came into being; as such, it was open to the appellant
to raise the construction of PPL up to 16th floor. There was no
illegality in the same. [Para 66] [1033-G-H; 1034-A]
1.10 Absolutely wrong facts had been mentioned in the
inventories, which are contradicted by the facts mentioned in the
notice for demolition and also by the minimum time required for
construction of each floor. Thus, no reliance can be placed on the
inventory dated 22.7.2011, and stop work notice dated 16.7.2011.
[Para 70] [1036-D-E]
1.11 The present case reflects some severe kind of rivalry
and distortion of facts. There was an attempt made to ensure that
the building is delayed or is demolished by way of filing the PIL
one after the other, taking different grounds at different stages,
many interventions have been filed. The Human Rights Federation
had also attempted to intervene in this Court. Though earlier, a
PIL, which was filed by it on 9.5.2014, was dismissed as withdrawn
on 7.11.2014 to approach an appropriate forum by way of filing
appropriate application/representation. The said intervenor also
filed an SLP before this Court challenging the impugned judgment
and orders dated 22, 25, 27.1.2016 passed by the High Court.
This Court has rejected the prayer, dismissed the SLP filed by
the petitioner to avail of any other remedy. After that, the
intervention application has been filed. The intervenor cannot
enlarge the scope of PIL. Therefore, the intervention application
filed on behalf of the said Federation is rejected. [Para 71] [1036H; 1037-A-C]
1.12 The provisions of Regulation 33(24) containing no
restriction on the number of floors of PPL, came into force on
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20.10.2008. The development permission had been granted to
the appellant in the year 2010, when Regulation 33(24) of DCR
was in vogue. Development permission has been granted on
18.6.2010 after 1 year 10 months and thereafter commencement
certificate had also been granted on 1.10.2010 with respect to
PPL and notice under which deemed permission accrued under
DCR 6(4) had been served on 7.5.2011 by the Architect. Once
deemed permission accrued to the appellant on lapse of 15 days,
the construction had been completed in 2012 before the
amendment was made in the Regulations in 2014. The order of
regularisation was not necessary because of deemed permission.
Thus, the High Court has rightly held that the decision of the
Corporation applying the Circular dated 22.6.2011 was
impermissible as it did not have the force of law, and it stood
quashed by the High Court in other cases. It could not be said
that the Circular of 2011 was supplementary to Regulation 33(24)
of DCR. It was clearly in derogation to it and could not have
prevailed over a statutory provision. [Paras 74 and 75] [1038-BE]
1.13 The provisions of Section 337 do not restrict the ambit
and scope of Regulation 6(5) of DCR. Initial permission had been
obtained for development, and during construction, further
variation could have been made. The provision of Section 346 is
of no help as, at no point in time, the development plan had been
disapproved. The question of modifying disapproval is not
germane. [Para 78] [1039-E-F]
Kohinoor CTNL Infrastructure Co, Pvt. Ltd. & Anr. v.
The MCGM & Ors. (2013) 3 BCR 410; Suresh Estates
Pvt. Ltd. & Ors. v. Municipal Corporation of Greater
Mumbai & Ors. (2007) 14 SCC 439 : [2007] 13 SCR
882 - referred to.
2.1 The determination of the refuge area was done by the
CFO, who is the competent and technical authority. The decision
of the CFO has been revisited by 3 successive Commissioners
and has been confirmed while approving the sanctioned plan
merely because some apprehension was raised about possible
misuse of the refuge area. It is impermissible to revisit the said
decision. Based on possible misuse, the planning permission
cannot be questioned nor can be revoked. [Para 81] [1042-B-D]
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Indore Municipal Corporation & Anr. v. Dr. Hemalata
& Ors. (2010) 4 SCC 435 - relied on.
2.2 In the order that has been passed by the Municipal
Commissioner pursuant to the impugned judgment passed by the
High Court, re-determining the refuge area, it has been reduced
to 23% only. The CFO has considered the higher requirement of
building and providing a separate refuge area for each of the flat
that is to say that four refuge areas on each floor, one attached to
each flat, has been approved by the CFO and the Corporation.
The permission was granted way back in the year 2006 and the
inspection note dated 11.11.2011 indicates that the construction
of the residential building had been carried out up to a height of
180 meters i.e., 36th floor, the permission was granted in 2006
and commencement certificate had also been issued from time
to time. The construction of the residential building had been
raised to the 36th floor in 2011, and Janhit Manch awakened first
time to file PIL No. 43/2012 in the High Court. Thus, it was a
belated petition. For fire safety, with respect to the refuge area,
the view of the Fire Safety Officer has to prevail not ipse dixit
whether it would be appropriate to have more area or the lesser
cannot be said to be acceptable which appears to be a hang-over,
the objection appears to be more the outcome of some grudge
harboured by unknown hands behind Janhit Manch.
[Para 83] [1043-C-F]
2.3 The objections have been raised on behalf of Janhit
Manch concerning the height of service floor and elevation
features like flower beds, ornamental projection, servant toilets,
and structural columns concerning which the Commissioner,
Municipal Corporation had given in extensive details the reasons
for the decision rendered by it. This Court is not an expert in the
field of determination of refuge area and therefore, when
Corporation and Chief Fire Officer had granted permission, it
cannot be said that any tremendous public purpose is going to be
served by entertaining the belated objections which appear to be
the outcome of some business rivalry between warring groups.
The order passed by the Municipal Commissioner dated
31.8.2016 with respect to refuge area cannot be said to be illegal
or arbitrary in any manner in the facts and circumstances of the
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case, mainly due to the fact that permission had been granted by
the CFO as well as the corporation which has been questioned
belatedly. [Para 84] [1043-G-H; 1044-A-B]
T. Vijayalakshmi & Ors. v. Town Planning Member &
Anr. (2006) 8 SCC 502 : [2006] 7 Suppl. SCR 534;
Pune Municipal Corporation & Anr. v. Promoters &
Builders Association & Anr.(2004) 10 SCC 796 :
[2004] 2 Suppl. SCR 207 ; Godrej and Boyce
Manufacturing Co. Ltd. v. State of Maharashtra & Ors.
(2009) 5 SCC 24 : [2009] 1 SCR 1016 - referred to.
3. There was deemed permission for PPL under Regulation
6(4) as per notice of Architect dated 7.5.2011. Therefore, it cannot
be said that the order passed by the Additional Municipal
Commissioner dated 10.11.2016, deciding the show-cause notice
dated 29.11.2011 and holding that the construction of the PPL
had substantially progressed, and as such, the entire PPL can be
regularised, is contrary to law. Moreover, it is not necessary to
go into the question of whether the notice dated 29.11.2011
survives or not for the decision, as it has been held that there
was deemed permission. Thus, there was no question of
regularisation of the PPL.[Paras 85 and 86] [1044-F-H]
Muni Suvrat-Swami Jain S.M.P. Sangh v. Arun
Nathuram Gaikwad & Ors. (2006) 8 SCC 590 : [2006]
7 Suppl. SCR 118 - referred to.
4. The order of the High Court is set aside in part and the
finding recorded by the High Court that no deeming permission
accrued under Regulation 6(4) of Development Control
Regulations, 1991 are also set aside. Deemed permission
accrued, and concerning the determination of refuge area as per
order dated 31.8.2016 passed by the Municipal Commissioner,
no interference is called for. Order dated 31.8.2016 passed by
the Municipal Commissioner regarding the refuge area is upheld.
Petitions filed by Janhit Manch deserve dismissal. The
Corporation is directed to take over PPL and to proceed further
do decide concerning 13 floors, i.e. 44 to 56 floors of the
residential building. [Paras 89 and 90] [1045-C-E]
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Case Law Reference
(2013) 3 BCR 410
referred to
Para 17
[2006] 7 Suppl. SCR 118
referred to
Para 27
[2007] 13 SCR 882
referred to
Para 29
[2006] 7 Suppl. SCR 534
referred to
Para 29
[2004] 2 Suppl. SCR 207
referred to
Para 80
[2009] 1 SCR 1016
referred to
Para 80
(2010) 4 SCC 435
relied on
Para 81
CIVIL ORIGINAL/APPELLATE JURISDICTION : Civil
Appeal Nos.8265-8266 of 2019.
From the Judgment and Order dated 22/25/27.01.2016 of the High
Court of Judicature at Bombay in First Appeal No. 884 of 2015 and Writ
Petition No. 2223 of 2013.
With
Civil Appeal Nos. 8267-8272 of 2019,
Transferred Case (Civil) No.271 of 2017 and Transferred Case
(Civil) No.6 of 2018.
Atmaram N.S. Nadkarni, ASG, R. P. Bhatt, Shekhar Naphade,
Huzefa Ahmadi, C.U. Singh, Arvind Nayar, Neeraj Kishan Kaul, Pinaki
Mishra, Sr. Advs., Mrs. Priti Purandare, S. Sukumaran, Anand Sukumar,
Bhupesh Kumar Pathak, Ms. Meera Mathur, Ms. Garima Prashad, Lalit
Kataria, R. N. Karanjawala, Ms. Ruby Singh Ahuja, Ms. Deepti Sarin,
Shravan Sahny, Sanjeet Ranjan, Utkarsh Maria, Mrs. Manik Karanjawala
(for M/s. Karanjawala & Co.), Ms. Anuradha Dutt, Ms. B. Vijayalakshmi
Menon, Ms. Fereshte D. Sethna, Ms. Ekta Kapil, Anirudh Bakhru,
N. Nihal Rao, Nishant Ramakantrao Katneshwarkar, Devashish Bharuka,
Kunal Verma, Ms. Sarvshree, C. S. Mishra, Sushil A., Mithum Shashank,
Vikas Mehta, Bijoy Kumar Jain, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ARUN MISHRA, J.
1. Shree Ram Urban Infrastructure Ltd. has filed the appeals
challenging the judgment and order dated 22/25/27.1.2016 passed by the
Division Bench of the High Court of Bombay in W.P. [C] No.2223 of
SHREE RAM URBAN INFRASTRUCTURE LTD. & ANR. v.
STATE OF MAHARASHTRA & ORS.
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2013 and First Appeal No.884/2015. Janhit Manch has also filed an
appeal. Ithas also filed two Public Interest Litigations (PILs.) in the
High Court, which have been transferred to this Court and registered as
T.C. (C) No.271/2017 and T.C. [C] No. 6/2018, challenging the order
dated 31.8.2016 (in T.C.(C) No.271/2017) passed by the Municipal
Corporation of Greater Mumbai (MCGM), (for short 'the Corporation')
and order dated 10.11.2016 in (T.C. (C) No.6/2018) passed by the
Additional Municipal Commissioner and also order dated 30.1.2017 and
14.3.2017 passed by the Corporation.
2. The matter relates to the building at Plot No. 5B+6, admeasuring
28,409.50 sq.mt. Shree Ram Urban Infrastructure Ltd. applied for grant
of permission to construct and build on the said plots. The commencement
certificate was granted by Planning Authority on 24.2.2005, under the
provisions of the Maharashtra Regional and Town Planning Act, 1966
(for short, "the MRTP Act") read with Development Control Regulations
for Greater Bombay, 1991 (for short "DCR"). The modification in the
building plan was made on 8.2.2011 under which the Corporation
approved construction of a residential building for two basements, ground,
entrance level, eight parking levels, amenity levels, service floor, and
other areas plus 13th to 54th floors having a height of 294.84 meters.
3. After the issuance of commencement certificate dated
24.2.2005 amendment was made in the DCR by incorporating clause 24
in Regulation 33, w.e.f. 20.10.2008. The amendment provided that with
the previous approval of the Government, the development of multistoreyed parking lots abutting the roads to be permitted. On parking
area being constructed and handed over to the Corporation, free of cost,
FSI, as specified therein, shall be allowed on the land belonging to the
private owners, which is not reserved for any public purpose. Shree
Ram Urban Infrastructure Ltd. (for short, 'SRUIL') applied for the
construction of public parking lot (PPL). The plans were approved for
the construction of three basements, ground floor, and 15 upper floors.
The commencement certificate was accordingly endorsed up to the plinth
level of the PPL, including three basements.
4. SRUIL has completed the construction of the main residential
building of 56 floors. Though the Corporation had issued the
commencement certificate up to the 43rd floor, 13 upper floors up to 56
have been constructed by SRUIL. The PPL has been constructed entirely.
Though the commencement certificate granted by the Corporation is up
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to the plinth level, including the basements, so far as commencement
certificate for the upper floors of the PPL is concerned, SRUIL has
relied upon deemed permission.
5. On 7.5.2011, SRUIL wrote a letter to the Municipal Corporation
for seeking commencement certificate for construction above the plinth
level of the PPL under Regulation 6(4) of the DCR. In clause 24 of
regulation 33, there was no upper limit for seeking incentive FSI.
6. The Corporation issued a circular on 22.6.2011, which restricted
PPL to two basements, ground, and four upper floors. The premium
was also enhanced. A stop-work notice was issued on 16.7.2011 in respect
of the construction by the Corporation under section 354 of the Mumbai
Municipal Corporation Act, 1888 ("MMC Act"). The said notice was
withdrawn on 11.11.2011.
7. On 29.11.2011, the Corporation issued a notice under section
51 of the MRTP Act calling upon SRUIL to show cause as to why the
commencement certificate concerning PPL may not be revoked, this
was followed by a notice under section 354A of the MMC Act calling
upon SRUIL to stop the work of PPL beyond plinth level as there was
no commencement certificate issued above the plinth level. SRUIL filed
a representation. After that, they filed Civil Suit No.2942 of 2011 in City
Civil Court at Mumbai, wherein the challenge was confined to the stopwork notice dated 14.12.2011. The interim injunction was granted
restraining the Corporation from taking any action based on the said
notice. The order remained operative till the disposal of the said suit.
Under the deemed permission, upper floors above the plinth level of the
PPL have been constructed by SRUIL.
8. On 16.5.2013, the city civil court decreed Civil Suit No.2942/
2011 by holding that the stop-work notice dated 14.12.2011 was illegal.
It was found by the civil court that further commencement certificate to
construct the 15 floors above the plinth of the PPL shall be deemed to
have been granted in terms of Regulation 6(4) of DCR. Therefore, the
stop-work notice was declared illegal against which the first appeal was
filed. The same has been decided by the impugned judgment and order
passed by the High Court at Mumbai.
9. PIL No. 43 of 2012 was filed by Janhit Manch, challenging the
construction of PPL above the plinth level. There was also a challenge
to the construction of the residential building. It was decided on 13.5.2013
SHREE RAM URBAN INFRASTRUCTURE LTD. & ANR. v.
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by the High Court. The directions were issued to Corporation to decide
as to PPL given findings recorded. Special leave petition was filed in this
Court by Janhit Manch, challenging the judgment and order mentioned
above.
10. In P.I.L. No.43 of 2012, a direction was issued to the
Corporation to pass an order on various aspects after hearing the parties.
The Municipal Commissioner has passed an order dated 12.9.2013, which
was impugned in the High Court by SRUIL and a prayer was made for
quashing and setting aside the order dated 12.9.2013 passed by the
Commissioner of the corporation. A prayer was also made for issuing
mandamus enjoining upon the Corporation to take over possession of
the PPL consisting of basement, ground plus 15 upper floors and forthwith
endorse the said commencement certificate for residential building up to
the full height of 56 floors. Unless incentive FSI in respect of the PPL is
made available, 13 upper floors of the main building would be illegal as
the FSI of PPL was to be used for the upper 13 floors.
11. In the writ petition, which was filed by the Janhit Manch, PIL
No.43/2012, it was contended that permission granted to erect floor
Nos.44 to 56 of the residential building was dependent upon the availability
of the incentive FSI on account of PPL. SRUIL illegally erected all
floors above the 43rd floor. Secondly, the construction of PPL consisting
of basements plus ground plus 15 floors was illegal as there was no
commencement certificate issued to proceed with the construction above
the plinth level. Next, it was contended that the refuge area in the
residential building, which is free of FSI, is excessive, and such excessive
refuge area could not have been permitted, which constitutes to the
extent of 72% of the total habitable built-up area of the residential building.
SRUIL were not entitled to FSI on account of the setback area of 705.45
sq.m. as they had already received compensation for the said area. The
question as to the height of the habitable floors about the consumption of
FSI was also raised. Besides, it was contended that the passage at manor
level and entrance, swimming pool, area over deck, and refuge area of
the residential building ought to have been computed in the FSI of the
residential building. The height of the service floor of the building is 8.40
meters; the height above 4.5 meters could not have been granted free of
FSI. FSI relating to service floors, amenity floor, and FSI of duplex floors
ought to have been counted. Besides, FSI about service toilets, structural
columns, toilets at the duplex level, and the floor bed ought to have been
counted.
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12. The High Court in PIL No. 43 of 2012 held that construction
of PPL could not be held as illegal, SRUIL cannot be deprived of claiming
incentive FSI for the residential building. Other aspects to be considered
by the Commissioner/Corporation at the time of issuance of an occupation
certificate. The FSI granted in respect of the refuge area is excessive,
so the Commissioner was directed to re-examine the issue and re-work
the FSI accordingly and whether FSI could be claimed in lieu of the
setback area. The Commissioner was directed to reconsider FSI granted
at manor level, swimming pool, the area over deck and refuge area at
entrance level, FSI concerning structural columns along with refuge area,
etc. The decision of the Commissioner to permit the height of service
floors at 8.40 meters was upheld. SRUIL to be heard before the
Commissioner takes a final decision.
13. After that, parties were heard by the Municipal Commissioner,
and an order was passed on 12.9.2013. The Commissioner has held that
PPL shall be as per the MCGM Circular dated 22.6.2011 and State
Government directives dated 19.3.2012 issued under section 37(1) of
the MRTP Act, the Municipal Commissioner observed:
"(i) As regards the Public Parking Lot (PPL), it shall be as
per the MCGM Circular dated 22.06.2011 and as per
State Govt. directives dated 19.03.2012 issued under
section 37(1) of MRTP Act, which is in accordance with
the law. Hence, MCGM will accept PPL comprising
of 3 basements + Ground + 4 upper floors, which only
will be eligible for grant of incentive FSI towards the
construction of PPL, on payment of requisite premium
as per policy.
(ii) Refuge areas shall be provided free of FSI only to the
extent of 4% of the built-up area it serves. Refuge
areas in excess of the aforesaid requirements shall be
counted in FSI in accordance with clause 4.12.3 of
National Building Code.
(iii) There is no provision in the DCR for the exclusion of
the structural columns from FSI computations. Hence,
the structural columns need to be counted in FSI.
(iv) As regards the set back area admeasuring 705.45 sq.mt.,
FSI advantage in lieu of handing over of the same cannot
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be granted at this stage, in absence of conclusive
documentary evidence.
(v) The passages at manor level and entrances, swimming
pool, area over deck, and refuge area at the entrance
level, which were earlier permitted free of FSI, shall be
counted in FSI in accordance with law.
(vi) The request of SRUIL to pay the security deposit under
DCR 5(3)(xi) and to levy the premium as per section
22(m) of MRTP Act, 1966, is rejected.
(vii) Since there are many interlinked revised FSI
computations as aforesaid, the Project Proponent
(SRUIL) is directed to submit modified plans in
accordance with the regulations."
14. The High Court in the impugned judgment and order has
quashed and set aside the judgment and decree passed by the civil court
on 16.5.2013, and the suit has been dismissed. In the writ petition, the
order of the Commissioner dated 12.9.2013 as far as clauses (v), (vi)
and (vii) of the directions are concerned, has been confirmed. The
direction contained in clause (ii) has been set aside. The direction in
clause (iii) of the Commissioner's order dated 12.9.2013 has been set
aside. The Commissioner has been directed to consider, exclusion of
structural columns from the computation of FSI and the issue of refuge
area. Clause (iv) of the Commissioner's order has been set aside, holding
that there was no reason to disturb the grant of FSI of the set-back area
admeasuring 705.45 sq.m. Clause (i) of the Commissioner's order dated
12.9.2013 has become inoperative because of the findings recorded by
the High Court while deciding the first appeal. The Corporation has
been directed to hear the parties and to decide as to the reasonable
refuge area considering various factors in light of the observations and
the discussion made in the judgment and order. The Commissioner was
directed to pass the order within four months.
15. The High Court held that the construction of the PPL above
the plinth level and the construction of the floors above the 43rd floor of
the main building is illegal as the same has been constructed without
obtaining the commencement certificate(s). SRUIL may apply for
regularisation of the construction made of the PPL above the plinth and
the construction of the upper floors of the main building. A fresh proposal
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for grant of commencement certificate and the development permission
shall be submitted. In case no regularisation is made by the Corporation,
steps shall be taken for demolition after the expiry of the period of 8
months. SRUIL to submit a modified plan to the Commissioner of
Corporation while applying for regularisation. After an appropriate order
is passed, SRUIL to apply for a grant of occupation certificate in respect
of the residential building up to the 43rd floor.
16. According to the direction issued by the High Court, the
Commissioner on 31.8.2016 concerning refuge area has passed the
following order:
"ORDER
"(1) The area provided on the external peripheral face of the flat,
which are marked hatched on the accompanying plan, shall be
allowed as refuge area. This order should be mentioned in all
Sale Deeds and/or in Supplementary Sale Deeds to ensure that it
is not sold as a habitable area. Further, the building would
prominently display the access route to these refuge areas. These
refuge areas will be kept open and accessible to all Occupants of
the Building at all times.
(2) The refuge areas at the inside of the building at the entrance
of flats shall not be considered as refuge areas.
(3) The four full floors shown as refuge will not be taken as refuge.
(4) The structural columns falling in the refuge areas stated in
Point (1) above can be allowed free of FSI. Areas of remaining
structural columns shall be counted in FSI.
 (Ajoy Mehta)
Date : 31 August, 2016
 Municipal Commissioner"
17. The Corporation has also passed order dated 10.11.2016 in
which it has held that under section 51 of the MRTP Act, the Planning
Authority can revoke or modify the permission provided that the
construction of PPL has not sufficiently progressed or completed. In
PPL, the total construction cost incurred is about Rs.165 crores, out of
which Rs.70.28 crores were incurred on the construction of PPL up to
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plinth. The construction has proceeded substantially as on the date of
the notice under section 51.