Mass Holdings Pvt. Ltd.
Vs. Municipal Corpn. of Greater Mumbai & Anr  Insc 584 (21 October 2005)
Ruma Pal & Dr. Ar.
Lakshmanan (Arising out of Slp (C ) No. 19929 of 2005) With C.A. No. 6434 Of
2005 @Slp(C ) No.19931/2005 & C.A. No 6435 of 2005 @Slp (C) No.19933 of 2005
Ruma Pal, J.
The appellant had filed a writ petition before the Bombay High Court
challenging a notice dated 26th May, 2004 issued by the respondents, calling
upon the appellant to remove its hoarding as it was erected in a Heritage
The impugned notice had been issued pursuant to an order of the High Court
dated 5th May, 2004 confirming a report of the Maharashtra Heritage
Conservation Committee (set up by the State Government under the Heritage
Regulations, 1995 and referred to hereafter as the 'MHCC') filed in Writ
Petition No. 1132 of 2002. That writ petition had been filed by way of public
interest litigation by the added respondent herein. The writ petition had inter
alia sought for an order from the High Court directing the removal of
hoardings. The High Court had referred the matter to an Expert Committee set up
by the High Court. The Expert Committee submitted two lists of hoardings which,
according to the Committee, violated the Heritage Regulations for Greater
Bombay, 1995. On 19th April, 2003, the High Court granted liberty to the owners
of the hoardings to file representations before the MHCC raising any objections
that they might have to the removal of the hoardings. The MHCC heard the
objections of the hoarding owners and others concerned with the hoardings, and
ultimately submitted a report to the High Court. The MHCC was of the opinion
that various hoardings including the appellant's hoardings, violated the
guidelines formulated relating to heritage buildings/structures and in heritage
precincts. The High Court directed the implementation of the report of the MHCC
by the respondents on 5th May, 2004. Consequently the impugned notice was
issued on 26th May, 2004.
In response to the notice the appellant filed a representation before the
MHCC contending that the Mahalaxmi Precinct was not included in the heritage
list. The appellant did not wait for the outcome of the representation, but
filed a writ petition before the High Court impugning the notice and obtained
an interim order as we have already noted. In the meanwhile, the MHCC rejected
the representation of the appellant and also filed an affidavit in the pending
writ petition in which it reiterated inter alia that the appellant's hoardings
should be removed. The High Court found that the reasoning of the MHCC was
neither perverse nor illegal. Although initially the High Court had granted an
interim order restraining the respondents from taking any steps to demolish the
appellant's hoarding, ultimately by an order dated 21st July, 2005, the High Court dismissed the writ petition. The interim order was continued till 15th October, 2005, in order to enable the appellant to test the correctness of the order
of the High Court before this Court.
The special leave petition filed by the appellant was entertained by us on 7th October, 2005 when we issued notice and also stayed the demolition of the hoardings
till 18th October, 2005.
On 18th October, 2005, the matter was heard extensively.
The appellant contended that the hoarding was situated within the Mahalaxmi
Precinct, which was not a Heritage Precinct.
Our attention was drawn to the various entries in the Schedule to the
Resolution dated 24th April, 1995 of the Urban Development Department from which,
according to the appellant, it was amply clear that the Mahalaxmi Precinct was
listed as a "location" and not as a Heritage Precinct. It was also
submitted that the MHCC had filed an affidavit before the High Court
incorrectly construing the schedule. It was submitted that the interpretation
put by MHCC, which was accepted by the High Court, in fact amounted to an
amendment of the schedule for which there was a specific procedure and the
procedure could not be circumvented by a process of interpretation. It was
stated that the there were other hoardings in the precinct, which had not been
proceeded against by the respondents and in fact in one of the Special Leave
Petitions (SLP CC Maharashtra ) this Court had issued an interim order staying
the operation of the judgment and order of the High Court in so far as it
pertained to that case.
As we have accepted the submissions of the respondents, it is not necessary
to note their submissions in support of the High Court's decision. Perhaps we
could have merely dismissed the Special Leave Petition. But having regard to
the number of matters filed we were of the view that we should give our reasons
in support of the dismissal.
The Maharashtra Regional and Town Planning Act, 1966 (referred hereinafter
as the 'Act') provides for preparation, submission and sanction of a
development plan. Section 22 of the Act which provides for the contents of the
plan states that the development plan shall provide for specified matters
including "preservation of features, structures or places of historical,
natural, architectural and scientific interest and educational value and all
heritage buildings and heritage precincts".
In exercise of powers under Section 31(1) of the Act, the State Government
by Resolution dated 21st April, 1995 sanctioned Development Control Regulation
No.67 along with appendix VII-A as specified in the schedule appended to the
resolution and fixed 1st June, 1995 as the date on which the Regulation 67
would come into force.
Regulation 67 broadly deals with the Conservation of listed buildings,
areas, structures and precincts of historical and/ or aesthetical and /or
architectural and/or cultural value (heritage buildings and heritage
precincts). Regulation 67 (2) inter alia forbids any addition or alteration of
buildings which were either listed as heritage building or as listed heritage
precincts except with the prior written permission of the Commissioner.
Sub-regulation (2) of Regulation 67 further provides that " the
Commissioner shall act on the advice of/in a consultation with the Heritage
Conservation Committee to be appointed by the Government" provided that
"in exceptional cases for reasons to be recorded in writing the
Commissioner may overrule the recommendations of the Heritage Conservation Committee".
The list of buildings and precincts to which the Regulation was to apply are
classified into three grades namely; Grade-I, II or III. Heritage Grade I
buildings/ precincts are those which are of National Heritage Importance and
are the prime land marks of the city of Mumbai. No intervention either external
or internal except absolutely essential and minimal changes can be affected in
respect of such building/or precincts. Grade-II heritage buildings/ precincts
are of lower historical value or aesthetical merit than Grade-I building/
precincts. As far as the Grade-II buildings are concerned, internal changes
were generally be permitted but external changes would be subjected to
scrutiny. Grade-III precincts however are of lower historical, aesthetical or
sociological interest. External and internal changes could be permitted in
accordance with the guidelines.
By a second Resolution dated 24th April, 1995 the State Government
sanctioned a list of buildings and precincts of historical, aesthetical, architectural
or cultural value as per the scheduled annexed to that resolution. The schedule
contains in all 633 items as Heritage buildings or precincts with their
"location" described in the next column. Many of the items are
overlapping. For example item 633 pertains to Fort Precinct which includes 14
sub precincts. Within those precincts there are several buildings which have
been separately listed including the Bombay High Court at item 77. Again item
107 mentions "all buildings at Dadabhai Naoroji Road with a special focus
on Fort House" This is followed by items 108 to 127 each of which relate
to building/structure on the Dada Bhai Naoroji Road. There is apparently no
consistency in the way that the list has been prepared. Not only is there
overlapping but there are, at times, inaccuracies. For example against item 442
under the heading, 'location' in respect of several buildings within the Mahalaxmi
Precinct, the word appearing is "deleted".
If one were to read the list as it is, one would have to come to the absurd
conclusion that the location of the several buildings mentioned in 442 was
"deleted". Therefore a strict or literal construction of the list
would be misplaced.
It is true as far as Mahalaxmi Precinct is concerned, although there is a
separate map indicating the precinct along with all other precincts, it does
not appear under the column "Nature of Monuments Building, Precincts
etc." but in the column headed "Location", against serial Nos.
441 and 442.
But locations have generally been indicated in the list with reference to
roads. A precinct cannot be a "location" since it is really an area.
In such circumstances it is reasonable to ascertain the intention of the State
Government from the map annexed to the list. The fact that no map of any other
location has been given coupled with the fact that only maps of heritage
precincts have been given in our opinion would certainly indicate that Mahalaxmi
precinct is indeed a listed heritage precinct against serial No.442 as
mentioned in the map.
The list also refers to five precincts, namely Banganga Precincts mentioned
against Sl. No. 384, Opera House Precincts, Sl. No.401, Gamdevi Precinct, Sl.
No.432, Mahalaxmi Precinct, Sl. No.442, Khotachiwadi Precinct, Sl.
No.508, Matharpakhadi Precinct, Sl. No.522 and Bandra Precinct, Sl. No. 612.
There is no other precinct which is mentioned as a location.
The MHCC has taken into consideration the nature of the list, particularly
the maps annexed thereto, to come to the conclusion that the mentioning of Mahalaxmi
Precinct under the heading of "location" was clearly not the
intention of the State Government, but the intention was to treat the precinct
along with all other precincts of which maps are given as heritage precincts.
The High Court endorsed this opinion. We see no reason to take a different
view. Additionally the High Court has noted that the MHCC had said that ever
since June, 1995 when the Regulation 67 came into force, all Development
proposals relating to buildings and properties situated in the Mahalaxmi
Precincts had been submitted to it for clearance. This again indicates that Mahalaxmi
Precinct is a Grade-III Heritage site.
As far as the case of M/s. Mittle Brothers (relied upon by the appellants),
is concerned, it appears from the order issued by us in that matter on
4.6.2004, that this Court had stayed the operation of the order of the High
Court to the extent that it had directed hoardings which are contained in
Precincts proposed to be added to the list of heritage buildings/ structures to
be demolished. In the present case there is no question of a proposed inclusion
of buildings/precincts in the heritage list.
There is also no question of amendment of the list appended to the
Resolution dated 24th April, 1995. The intention of the State Government as has
been culled out by the MHCC and affirmed by the Bombay High Court and as found
by us is that the list as it exists includes Mahalaxmi Precinct as a heritage
In the circumstances aforesaid, the appeals are dismissed and the interim
order is vacated. However the appellant is given the liberty to demolish the
hoardings itself within a period of 10 days from today. If it fails to do so,
it will be open to the respondents to take steps pursuant to the impugned
notice. No order as to costs.