Achyut Sathe Vs. Joseph Bain D'souza & Ors  Insc 410 (14 July 2006)
Pasayat & S.H. Kapadia
Out of S.L.P.(C) No.1376 OF 2006 WITH
(C.A.No 2971/06@SLP (C) No.1375/2006, C.A.No 2972/06@SLP (C) No.1377/2006
C.A.No2973/06@ I.A.No.1 in & SLP) /06(CC 1776/06) C.A.No 2974/06@ I.A.No.1
in & SLP) /06(CC 2095/06) C.A.No 2975/06@ I.A.No.1 in & SLP) /06(CC
2531/06) C.A.No 2976/06@SLP (C) No.2704/2006 C.A.No 2977/06@SLP (C)
No.4747/2006 C.A.No 2978/06@SLP (C) No.71/2006 C.A.No 2979/06@SLP (C)
No.9490/2006) ARIJIT PASAYAT, J.
granted in each case.
in each of these appeals is to the legality of the judgment rendered by a
Division Bench of the Bombay High Court at Bombay in a Public Interest
Litigation filed by three citizens essentially questioning legality of
Regulation 33 (7) of the Development Control Regulations, 1991 (in short the
'Regulations'). These Regulations came into force with effect from 20th March, 1991. According to writ petitioners it
is in essence delegated legislation under the Maharashtra Regional and Town
Planning Act, 1966 (in short the 'Act'). The writ petitioners questioned the
amendment brought in 1999 which provided for a minimum Floor Space Index (in
short 'FSI') of 2.5 plus Additional FSI required for rehabilitation of existing
tenants plus incentive FSI on several grounds.
present appellant resisted the claim.
High Court instead of deciding the core issue has by the impugned judgment
appointed some Committees to look into several aspects which according to it
had relevance for the basic and recurring problems.
support of the appeals, learned counsel for the appellants submitted that the
High Court instead of deciding the basic issue has gone into unconnected
matters, has lost sight of the fact that the views of the Committees appointed
really will be of no consequence and would not throw any light on the legality
or otherwise of the provisions which were challenged. The views of the
Committees cannot be a substitute for a decision of the Court and in fact the
High Court has not made it clear as to what will be the effect of the views of
the Committees appointed and how they are to be implemented and, in short,
whether the Committees can deal with the legality or otherwise of the impugned
details have been submitted to justify the legality of the impugned provisions.
It was highlighted that the High Court did not consider a specific plea that
the amended Regulation became operative from 1999 and for the first time
challenge was made by the three writ petitioners in 2004. By that time on the
basis of the amended provisions, various steps of conclusive nature have been
taken by various persons.
response, learned counsel for the writ petitioners before the High Court has
supported the impugned judgment of the High Court.
not think it necessary to examine the merits of the rival contentions. At the
outset it may be stated that it is not clear as to whether the writ petition
has been disposed of by the High Court or not. There is no specific indication
in that regard. It is also not clear whether after the Committees appointed
express their views, what was the follow up action to be taken and by whom. As
rightly pointed out by learned counsel for the appellants the High Court has
not dealt with the basic issues raised in the writ petition i.e. as to whether
the amended Regulation 33(7) suffered from any infirmity.
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 non- maintainability of the Writ Petitions. The High Court shall
appropriately deal with the same. It needs no reiteration that the High Court
shall examine the challenge to Regulation 33(7) as amended in 1999. The interim
order passed by this Court on 21.4.2006 shall continue to be in operation till
disposal of the matter by the High Court. By order dated 21.4.2006 we had
directed that no third party right shall be granted without leave of this
Court. During the pendency of the matter before the High Court it shall be for
the High Court to deal with that aspect. It is made clear that the High Court
shall deal with only the issue relating to validity of the provisions and
maintainability of the Writ Petitions. Certain parties have filed Intervention
Applications before this Court. These Applications shall be dealt with by the
High Court. The High Court is requested to dispose of the matter within three
months from the date of receipt of the order. It is open to the parties to
bring to the notice of the High Court our order.
these Appeals for further hearing in the first week of December, 2006.