M/S.
Live Oak Resort Pvt. Ltd. & Anr Vs. Panchgani Hill Station Municipal [2001]
Insc 448 (31 August
2001)
A.P.Misra,
U.C.Banerjee Banerjee,J.
Special Leave Petition (civil) 20494-95 of 2000
Leave
granted.
The
appellants herein, moved this Court under Article 136 of the Constitution of
India seeking special leave to appeal against the orders of the Division Bench
of the High Court of Judicature at Bombay in the matter of dismissal of the
writ petition being No.2226 of 1999 dated 10th July, 2000 as also an order of
dismissal of the Review Petition dated 6th November, 2000. By the impugned
order of dismissal, the High Court did lend its concurrence to an order of
demolition of an additional floor constructed by the appellants in Panchgani
said to be in violation of the Municipal Rules as also of the direction
contained in an earlier judgment of the same High Court in a public interest
litigation being No. 2754 of 1997 wherein the High Court has dealt with a
circular issued by Urban Development, Public Health and Housing Department in
1971. Incidentally, be it noted that various public interest petitions have
been filed before the High Court seeking to prevent construction and/or regular
constructions in the Mahabaleshwar- Panchgani area in the State of Maharashtra being an ecologically sensitive
belt. In the writ petition filed by the Bombay Environmental Action Group the
bone of contention of the appellants had been that there was large scale
illegal construction and deforestation in the Mahabaleshwar-Panchgani region
resulting in wide spread environmental and ecological degradation to these two
hill stations in the State of Maharashtra. The High Court upon consideration of
the pleadings and the facts on record passed various orders from time to time
and finally dealt with the matter in its judgment dated 18th November, 1998
containing certain directions in order to put an embargo to the constant
exploitation of nature resulting in ecological imbalance in the area and thus
to avoid the bio-diversity crisis. The appellants herein were also parties
therein as respondent No.17.
Ecological
imbalance and non-conformity of the Municipal Rules are however two independent
and separate factors to invoke the jurisdiction of the law courts and either of
the two factors however would prompt the law courts to pass necessary orders by
reason therefor to protect the environment.
Before
adverting to the contextual facts in the present appeals under Article 136 of
the Constitution, the earlier order of the Bombay High Court spoken of
hereinbefore in this judgment dated 18th November, 1998 ought to be adverted to
so as to appreciate the resultant culmination on to the issuance of an order of
demolition by the Panchgani Municipal Council and subsequent concurrence
thereof by the High Court in a writ petition filed by the appellants herein.
Incidentally,
be it noted that the two hill stations of Panchgani and Mahabaleshwar recently
have been acclaimed to be very popular tourist resorts and tourism has thus
turned out to be a great economic benefactor to the State - and it is this
possible improved economic situation that the State Government in the year 1971
issued a circular (more fully dealt with hereinafter in this judgment) under
which an additional FSI was made available to the luxury hotels (with 3 star
facilities and above) - obviously the State Government at the time of issuance
of the circular had in its mind the long catena of cases of this Court as also
that of various High Courts that while ecology cannot be given a go by, in the
same vein development process cannot be ignored: As a matter of fact the law
courts thus evoked the factum of striking of a balance between the development
and ecology since in a developing economy there cannot be either development or
ecology but both must exist and thus a balance shall have to be struck between
the two, as otherwise the society will perish in the absence of either of the
two elements noticed above.
In
this context, two decisions ought to be adverted to briefly:
one
from the Calcutta High Court and the other of this Court. In the Calcutta High Court, People United for
Better Living in Calcutta - Public & Anr. V. State of
West Bengal & Ors.[AIR 1993 Calcutta 215] the Single Judge in paragraph 2 of the Report observed:
"2.
While it is true that in a developing country there shall have to be
developments but that development shall have to be in closest possible harmony
with the environment, as otherwise there would be development but no
environment, which would result in total devastation, though however, may not
be felt in presenti but at some future point of time, but then it would be too
late in the day, however, to control and improve the environment. Nature will
not tolerate us after a certain degree of its destruction and it will in any
event, have its toll on the lives of the people: Can the present day society
afford to have such a state and allow the nature to have its toll in future -
the answer shall have to be in the negative: the present day society has a
responsibility towards the posterity for their proper growth and development so
as to allow the posterity to breathe normally and live in a cleaner environment
and have a consequent fuller development : time has now come therefore, to
check and control the degradation of the environment and since the Law Courts
also have a duty towards the society for its proper growth and further
development and more so by reason of definite legislations in regard thereto as
noted hereinafter, it is a plain exercise of the judicial power to see that
there is no such degradation of the society and there ought not to be any
hesitation in regard thereto - but does that mean and imply stoppage of every
developmental programme - the answer is again 'no' : There shall have to be a
proper balance between the development and the environment so that both can
co-exist without affecting the other. On the wake of the 21st century, in my
view, it is neither feasible nor practicable to have a negative approach to the
development process of the country or of the society, but that does not mean,
without any consideration for the environment. As noted above, there should be
a proper balance between the protection of environment and the development
process:
the
society shall have to prosper, but not at the cost of the environment and in
the similar vein, the environment shall have to be protected but not at the
cost of the development of the society - there shall have to be both
development and proper environment and as such, a balance has tobe found out
and administrative actions ought to proceed in accordance therewith and not de
hors the same." This Court, however, in Goa Foundation's decision [Goa
Foundation, Goa v. Diksha Holdings Pvt. Ltd. & Ors.:
2001 (2) SCC 97] affirmatively approved the approach as stated in the Calcutta
High Court judgment.
Be it
noted that on this factual backdrop and by reason of the notification in 1971
there was a wide spread violation of the regional plan for Mahabaleshwar-Panchgani
area wherein agricultural land was being extensively used for non-agricultural
purposes such as hotels, holiday homes, luxurious private bungalows - it has
been the contention of the Bombay Environmental Action Group that forestry in
the Mahabaleshwar- Panchgani region being depleted at an alarming rate thus requiring
protection and resultant intervention of the Court. The records further depict
that the rule-nisi in the earlier matter was issued on 23rd June, 1997 and
while issuing the said rule-nisi the State Government was directed to form a
high level committee to find out as regards the illegal construction and user
of land in violation of the Regional Town Plan for the area or the Building
Bye-laws and Development Control Rules. The committee in terms of the order did
submit its report on 17th November, 1997, wherein about 1060 buildings in Mahabaleshwar-
Panchgani region were found to be in contravention of statutory protection and
suggested various remedial measures and in terms therewith apart from the
directions on to the Pollution Board, Mahabaleshwar Municipal Council were also
directed to take immediate action against erring parties and it is in course of
hearing that some of the persons who had received notice submitted that they
were prepared to give undertakings to the High Court that basement of the
construction could only be used for parking, storage, air-conditioned plants
and not for any other purpose. The High Court while dealing with the matter
observed:
"In
our view, on such undertakings being given by the parties to whom notices were
issued, no further action would be required to be taken on the ground that the
basement area is to be included for built-up area calculations. It was directed
that such undertakings be given to this Court and to the Chief Officer of the
Municipal Council on or before 15th September, 1998. As regards the interpretation of the Bye-law, the learned counsel for
the respondent sought time.
On 15th September, 1998 the parties were heard at length.
With regard to the Building Bye-laws and Development Control Rules for Mahabaleshwar
and Panchgani Municipal Councils, the statements made by the learned Advocate
General were recorded, viz.,
(a)
For deciding the permissible maximum height, the council is taking into
consideration the height of average of the four corners of the surrounding
ground level;
(b)
The lower storey of the building, if constructed below or partly below the
ground level, is considered as basement and if basement is used for the purpose
specified in the Rules such as parking space, store room or air-conditioning
plant room, then it is not included for calculation of total built-up area and
it is also not considered as one storey or floor;
(c)
The council is following Bye-law 20.6.
which
provides that the overall height of any building shall not be more than 9 mtrs.
In Sector 1, S. No.52 and area selected for MIG/LIG/EWS housing with approval
of Government and shall not be more than 11 mtrs. in all other areas.
...............................................
In
this view of the matter, the Municipal Councils were directed to exclude the
basement area from built up area calculations if the owners of the building
filed necessary undertakings before this Court...............
...........As
regards the violation of height restrictions, the Planning Authority was
directed, at its discretion, to condone violation of 1 or 2 feet wherever such
violation was there and that it was not to be treated as a license to grant
permission to violate the height limit. Further height should be counted by
taking average height of the four corners of the plot. The applications for condonation
of such height violations were required to be filed on or before 30th September, 1998. Such condonation was directed to
be granted on recovering a penalty of Rs.1,000/- to Rs. 25,000/-. It was also
clarified that this would not give the authority to the Councils to sanction
plans in violation of the height regulation.
.........................
...........However,
it is clarified that if the benefit of the Government Resolution of the year
1971 is already given then those cases are not to be disturbed and are not to
be reviewed. Henceforth, the benefit of the said Resolution is not to be
given." (Emphasis supplied) It would be convenient to note the true scope
and effect of 1971 circular spoken of earlier at this juncture. The circular
incidentally pertains to higher floor space index to luxury hotels within the
jurisdiction of the Municipal Corporations and Municipal Council in the State
of Maharashtra. Relevant extract of the circular
however is noticed herein below. The circular reads:
"Government
has been receiving requests from several Hotels in Maharashtra that they should be allowed higher
F.S.I. for their buildings than is normally permissible. Government decided
that all the Municipal Corporations - Municipal Councils in the State of Maharashtra should be advised to allow higher
FSI for luxury hotels with a grading of 3 star and above within their
jurisdiction provided the request is recommended by the Department of Tourism.
Government is also pleased to advise that the additional FSI to be allowed
should not exceed 50 per cent of the normal FSI allowed in such cases.
Government is further pleased to direct that the minimum area of the plot
should not be less than 1/4 acre or 1000 sq. meters in respect of hotels having
10 rooms and where the number of rooms is more than 10, the plot size should be
larger as may be required by the Department of Tourism.
Government
is further pleased to advise the Municipal Corporations (other than Bombay),
Municipal Councils that if any Development Control Rules, Town Planning
Regulations, Building regulations applicable in their area do not permit a
higher FSI for luxury hotels as indicated above, the higher FSI may be allowed
in anticipation of suitable modifications in the rules/regulations etc."
Admittedly, the appellants herein had commenced the construction of an
additional floor in the existing hotel premises after conferment of a 3 Star
status. Mr. Ganguly, learned senior counsel, appearing in support of the
petition for special leave contended that the commencement of the construction
of the additional floor in the hotel was on bonafide belief since the plan
furnished by them had in fact being sanctioned by the Director, Town Planning
and as such question of issuance of the order of demolition would not arise and
it is the issuance of this order of demolition, the appellants herein moved the
High Court at Bombay in a petition under Article 226 of the Constitution which
however was negatived by the High Court with an order of dismissal of the same
and hence the special leave petition before this Court as noticed earlier.
Mr. Ganguly
addressed this Court in detail on two specific counts challenging the dismissal
of the order of the writ petition by the High Court: the first count being that
the High Court's refusal to entertain the writ petition has been totally on a
misreading of the earlier judgment of the High Court and on the second it has
been contended by Mr. Ganguly that the finding of violation of the Municipal
Rules warranting a demolition in the contextual facts have been totally
unjustified.
Needless
to record that Panchgani, a hill station in Satara district of the State of Maharashtra has recently been facing a
tremendous influx of people as noticed herein above: a virgin land having all
round beauties of nature thus turned out to be a tremendously popular tourist
centre. Admittedly the High Court, however, in order to stop further
exploitation of nature directed a restraint order effective from the date of
the order viz., 18th
November, 1998 in
regard thereto. It is only a prospective order and not a retrospective one.
Incidentally,
Mr. Dushyant Dave, learned senior counsel appearing for the intervenor in the
matter with his usual felicity of expression very strongly objected to the
submissions of Mr.
Ganguly,
upon reliance on the earlier judgment of the High Court as noticed herein
before. Equally forceful however have been the submissions of Mr. Deshpande
appearing for the Government and Mr. Singh for the Municipal Council.
Before
going into the main thrust of submissions of the parties, a brief look to the
order impugned would be convenient at this stage:
the
relevant extracts are as below:
"3.
We have gone through the original files of the Municipal Council and the record
of the case with the assistance of the learned counsel for the parties.
We
have also perused the photographs of the structure constructed by the
petitioners. The respondent No.1 has sanctioned for construction of only ground
plus one storey and basement.
However,
it appears that the petitioners have constructed a building of ground plus 3
stories.
The
so-called basement is actually a ground floor which is being used for the
purpose of residence contrary to the Development Control Rules. It is also seen
that the petitioners have violated high restriction and there is excess
construction to the extent of 107 sq. meters. It seems that this construction
was carried out inspite of stop work notice given by the respondent no.1 and
when the writ petition No.2754 of 1997 was pending before this Court.
4. Mr.
Reis the learned counsel for the petitioners strenuously contended that the
petitioners constructed an additional floor in view of the no objection granted
to the Director of Town Planning. He contended that although technically there
was no sanction from the Municipal Council, keeping in mind the fact that no
objection was granted by the Director of town Planning and also the fact that
the petitioners had invested additional funds for the construction of the extra
floor and having regard to the observations made by the division bench in para
27 of the order dated 18.11.1998, the construction of the extra floor by the
petitioners should be regularised. We do not find any merit in the submission
of the learned counsel. In the first place petitioners had constructed extra
floors and not one as contemplated by the circular dated 7.10.1971. As
indicated above petitioners have not constructed basement and instead they have
constructed a ground floor. Secondly the observation of the division bench in para
27 of the order are of no help to the petitioners. The division bench has
categorically held that the benefit of the additional FSI could not have been
given to any 3 Star hotels after the commencement of the Development Control
Rules. The division bench has merely clarified that if the benefit of the
circular of 7.10.1971 was already given then those constructions were not be
disturbed. In the instant case it is an admitted position that the plans for
additional floors were not sanctioned by the respondent No.1. In the
circumstances the observations made by the Division Bench are not applicable to
the present case and the petitioners are not entitled to claim any benefit of
the said Government Circular. The construction of additional two stories is
totally unauthorised and contrary to the Development Control Rules. We do not
find any infirmity in the impugned orders passed by the respondent No.1."
It is this order which is under challenge in this petition under Article 136.
Incidentally, upon issuance of notice and the interim order passed in the
presence of the parties, all the parties agreed that the matter under
consideration ought to be disposed of at the notice stage itself and hence the
final disposal in terms of this judgment.
Turning
on to the factual score it appears that the rejection of the plan by the letter
dated 20.3.1997 emanating from Panchgani Hill Station Municipal Council has had
four specific grounds and the same are set out here in below:
"1.
The present F.S.I. of the present building's Ground Floor and First Floor is
more than the F.S.I. given by Hon'ble Director, Town Planning, Maharashtra State, Pune.
2. It
is not correct to grant permission/permissible for Health Club and Sanitation
House.
3. Alongwith
the annexed Plan of the construction some measurements are shown in feet. The
feet measurements must be shown in Metric.
4.
Sanitation House is not permissible in Kitchen."
A
plain look at the grounds mentioned however, depict that the principal
objection centres round the first of the four grounds. It is in this respect
that one ought to fall back upon relevant correspondence either
inter-departmental or intra parties. First of the series however is a letter
dated 8/13th June, 1995 from the Director, Town Planning to the Assistant
Director, Town Planning, Satara, the letter though inter-departmental stands
disclosed in the proceedings and pertains to the circular dated 7th October,
1971 spoken of earlier since Mr Ganguly's principal defence against so-called
violation of Municipal Act is dependant on this document. Let us have a clear
view of the matter in a broader perspective - A letter dated 6th April, 1995
was sent by the Municipal Council to the Town Planning Department expecting
guidance whether additional FSI can be granted for the construction of a three
Star hotel at a final plot No.414-E - Town Planning Scheme No.3 Panchagani by
Director, Town Planning, Maharashtra State, Pune. The same in turn was placed
before the Director, Town Planning, Pune for his opinion and guidance by the
Assistant Director, Town Planning, Satara and which was in turn replied to by
the Director by the letter noticed above dated 8/13th June, 1995, wherein the
issue of grant of additional FSI was considered and an opinion expressed
therein by way of a sanction.
The
relevant extract of the letter dated 8/13th June, 1995 are set out hereinbelow
for appreciation of the submissions and being the main plank of defence against
the order of demolition as noticed above.
The
relevant extracts whereof, however are as below:
"Holder
of the property consisting of the piece and parcel of land bearing final Plot
No.414-E, Town Planning Scheme No.III situated within limits of Panchgani Hill
Station Municipal Council has been granted permission for the Hotel by the
Municipal council and he has submitted proposal for the additional FSI for
carrying out construction of star Category Hotel and in that connection
guidance has been expected from this directorate.
In
accordance with the Circular dated 7.10.71 of the Government, an additional FSI
is permissible for the Three Star and higher grade hotel and applicant has
submitted proposal in accordance with this circular, there is no objection to
sanction the same. (Emphasis supplied) In connection with this proposal as
suggested by the Deputy Director, Town Planning, Maharashtra State, Pune Region, Pune it will be
appropriate to charge fees @ 50% of the existing markets rate for the
additional FSI.
As
because of this permission of additional FSI as one floor will be more than the
sanction and height of the building is more by 3.20 mtrs. than sanction, it is
unavoidable but to give relaxation.
In
accordance with provision No.28.2 of the Development Control Regulations and
Certified Construction Bye-laws which are applicable for "B" and
"C" Class Municipal Councils, relaxation is being granted as of the
special case. Enclose herewith all papers of the branch office." (Emphasis
supplied) This decision of the Director, Town Planning as above, was in turn
communicated to the Chief Officer, Panchgani Hill Station Municipal Council by
a letter from the Assistant Director, Town Planning dated 23rd February, 1996
wherein it has been categorically mentioned that the letter of the Director
dated 13.6.1995 has provided guidance and a copy whereof was also sent
therewith. The Assistant Director by the said intimation dated 23.2.1996 also
requested the Municipality to deposit a sum of Rs.7,442/- for the additional
FSI granted in the letter of the Director in terms of Section 360-B of the
B.C.S.R fees. A further intimation has also been effected to the effect that
the aforesaid sum of Rs.7442/- being the additional premium is to be recovered
from the applicant - The sanction thus stands acted upon by the parties. The
record further depicts that by letter dated 3rd June, 1996, the Assistant
Director, Town Planning did call for the construction plans of the existing
building and in terms therewith the Municipal Council, Panchgani forwarded the
same upon obtaining copies of the same from the appellants herein. It is only
thereafter however that the Town Planning Department by a letter dated 31st
December, 1996 informed the Chief Officer of the Municipal Council that the
permission for construction ought not to be granted, the reason being the total
area of construction is more than the construction area which is permissible
and sanctioned by the Director, Town Planning, Maharashtra State vide letter
dated 8/13th June, 1995 and in terms therewith Panchgani Hill Station Municipal
Council wanted a further clarificatory order from the town planning authority
who in turn by its letter dated 6th March, 1997 recorded the 4 point objection
as noticed hereinbefore and the subsequent application dated 9th September,
1997 regarding the grant of permission for construction of the 3 star hotel at
the premises in question stood rejected.
Representation
made by the appellants but to no effect and subsequently order of demolition of
the portion constructed said to be unauthorisedly was issued which was brought
to challenge before the High Court and the factual score thereafter stands
already noted in this judgment and as such we do not think it expedient to
repeat the same once again.
It is
in this factual matrix, the High Court dealt with the matter. At the first
stroke, it seems rather significant though the High Court in the earlier
judgment has categorically recorded that if the benefit of the Government
resolution of the year 1971 has already been given, then and in that event,
those cases are not to be disturbed and thus not to be reviewed. The High Court
while incorporating the same recorded that it is an admitted position that the
plans for additional floors were not sanctioned by the respondent No.1 and as
such, the issue does not seem to have any benefit from the order of the
Division Bench - at the first sight, it seems no exception can be taken on this
but on a closer scrutiny of the record displaces such an observation of the
High Court. By the letter dated 8/13th June, 1995, the Director, Town Planning
has categorically recorded grant of permission of additional FSI and having
regard to an additional floor, it would obviously be more than the sanctioned
height of the building. The appellants were not only authorised to construct an
additional flour but the memo also contained a relaxation on the height as well
to the extent of 3.20 meters than the permissible sanction limit The letter in
question stands extensively quoted in the earlier part of the judgment and the emphasised
portion would depict the conclusion as has been noticed hereinbefore. The
situation therefore, turns out to be that the Director, Town Planning being the
authority in terms of the provisions of law did grant sanction of an additional
floor with an additional height of 3.20 metres upon proper relaxation being
granted. This aspect of the matter, the High Court has not considered at all
and thus clearly fell into an error. It is to be placed on record that Director
himself as a matter of fact did place reliance on provision 28.2. of the
bye-laws applicable to 'B' and 'C' class municipalities in the State of Maharashtra. The entire reference to the
Director was by reason of the above said provision and all the statutory
agencies have acted thereupon. The above noted provision 28.2 reads as below:
"28.2
The Director of Town Planning may permit special relaxation to any of the
bye-laws, provided the relaxation sought does not violate the health safety,
fire safety, structural safety, public safety of the inhabitants and the
buildings and the neighbourhood" - The proviso noticed above having the
definite application in the contextual facts, sanction from the Director, Town
Planning in terms of the Standardised Building Bye-laws for "B" and
"C" Class Municipal Council of Maharashtra supersedes any further
power of the council. As a matter of fact, the power conferred under 28.2 being
supreme, the Council is under statutory obligation to abide by the directions
as contained in the Director's letter as above, and grant sanction in terms of
Section 45 of the MRTP (for short) but in accordance therewith : This power
stands absolute and there is no escape from that situation. We however, ought
not to be understood to record the unguided power of the Director - The powers
of the Director also stand circumscribed by and under the provision 28.2 itself
and to the effect that exercise of such a power pertains to the grant of
additional FSI and correspondingly authority and jurisdiction to grant
relaxation as regard the height.
It is
on this score, Mr. Ganguly, contended that the provision as contained 28.2 of
the bye-laws as noticed above does not recognise any superior authority than
the Director in the matter of grant of additional FSI and since the Director
has granted, the Council has no other alternative or option but to follow the
same and grant sanction in accordance therewith and not de hors the same.
Additional
FSI stands granted and the plan on the basis of such grant, ought in the
ordinary course of events to have been sanctioned. It is on this score that Mr.
Dave appearing for the intervenor alongwith the learned Advocates appearing for
the State of Maharashtra and the Municipal Council in one voice also very
strongly contended that since the Municipal Council is the ultimate sanctioning
authority in terms of the Maharashtra Regional and Town Planning Act, 1966, the
question of acting in excess of jurisdiction so far as the Council is concerned
would not arise - obviously there is some confusion persists by reason wherefor
the High Court has also fallen into an error : the reason being failure to
distinguish between the grant of sanction of additional FSI and the sanction of
the building plan. The additional FSI stands granted and in the event of such a
grant, can the Council sit over the decision of the Director and refuse
permission - on an analysis of the different statutory provisions, our answer
cannot but be in the negative. Bye- law 28.2 clearly recognised the power to
grant such a sanction for additional FSI and the decision of the Director is
final on that score and the Council is to implement such a decision and not act
de hors the same. In the event the respondents' contentions are to be accepted,
then there exist no justifiable reason for forwarding the application of the
appellants to the Town Planning Department of the State Government for guidance
neither there was any justification for the Council to deposit the regulation
fee of Rs.7,442/- in terms of the letter of the Town Planning Department as
additional levy for grant of additional FSI - These issues however remain
unanswered: Mere silence however will not provide a solace to the appellants
herein. It is in this aspect of the matter that the High Court has also fallen
to a great error. The High Court by its earlier judgment has clarified that in
the event of the benefit of the Government resolution of 1971 has already been
given, then those cases are not to be disturbed and not to be reviewed - in
fact, such a benefit has been given by the Director who happened to be the
proper authority to confer such benefit, there ought not to have been any
confusion between the conferment of benefit of the additional FSI and the grant
of sanction of building plans - two issues are separate in nature and the
authorities are also separate - whereas the Director, Town Planning happened to
be the deciding factor in the matter of grant of sanction of additional FSI and
power to relax the height issue, the Municipality in terms of section 45 of the
Act remained and still remains the authority to sanction or reject the plan in
the ordinary course of events. There is thus no conflict between the provisions
- Mr. Deshpande however significantly contended that the Director, Town
Planning being the authority who is consulted by the Government before it finalises
the draft development plan of the Municipal Council has a very limited function
to discharge and only to provide technical guidance to the local authority: the
submission however runs counter to statutory rules and as such we are unable to
concur therewith.
In
this context a public notice No.VI/999-95-96 in terms of resolution No.71 dated
28th November, 1995 ought to be noticed.
The
public notice reads as below:
"PANCHGANI
HILL STATION MUNICIPAL COUNCIL, PANCHGANI PUBLIC NOTICE Under Section 37 of Maharashtra
Regional and Town Planning Act, 1966.:
No.VI/999-95-96.
- All citizens residing in Panchgani Hill Station Municipal Council's limit are
informed by this public notice, that the Panchgani Hill Station Municipal
Council intends to suggest the following addition to the development control
and Buildings Byelaws in Chapter XII-B after Law No.52.
In the
sanctioned (Revised) Development Plan of Panchgani Hill Station Municipal
Council which has been sanctioned by the Director of Town Planning, Maharashtra
State's Notification No.DP/Panchgani (R) /49-88/TPV-II dated 12th May 1988 and
came into force with effect from 1st July, 1988.
Proposed
addition in Byelaws is given below:
Particulars
of Additional Bye-laws For star category Luxury Hotels in independent plots and
under one establishment with a raling of 3 and above as approved by the
Department of Tourism, Government of India or the State Government, additional
F.S.I. to the maximum extent of 50 per cent over and above the permissible
F.S.I. in the area in which such hotel plot is situated may be permitted
provided that such extra F.S.I. shall be subject to payment of such premium as
may be fixed from time to time by the Municipal Council in consultation with
the Director of Town Planning, Pune provided further that permissible height of
9.15 m. may be relaxed if necessary and only to facilitate use of extra F.S.I.
in consultation with the Director of Town Planning.
No condonation
in the required open spaces, parking spaces and any other requirements of the
Development Control Rules except the height as provided above shall be allowed
in case of grant of such additional F.S.I." Mr. Deshpande next contended
that the letter dated 8/13th June, 1995 cannot but be read as a mere direction
to consider the grant of relaxation of height and not a sanction - we are
however unable to record our acceptance thereto by reason of the specific
language of the Director's letter noted above.
Mr.
Dave for the Intervenor further contended that Bye-law
28.2
of the Development Control Regulation as noted above does not have any manner
of application to Panchgani and contended that even if it does so applied, the
same cannot have any manner of application by reason of Sections 45, 154 and 156
of the Maharashtra Regional and Town Planning Act, 1966. Grant or refusal of
permission stands vested with the planning authority and there cannot be any
manner of dispute in regard thereto by reason of the provisions of Section 45
of the Act of 1966 - This aspect of the matter has already been dealt with
herein before as such we need not further dilate on the issue excepting
recording that the Director did not act on its own initiative but the ball has
been set to roll by the Municipal Council itself, since they wanted guidance
and opinion apropos the application for additional FSI: It is not that the
petitioner applied before the Town Planning authority but the application was
made to, as in the normal course of events it has to be, to the Municipal Council
and who in their turn sent it to the Department of Town Planning which
ultimately was placed before the Director, Town Planning and the latter granted
while expressing opinion in regard thereto also granted sanction as also
relaxation in terms statutory conferment of power as noticed more fully
hereinbefore. Mr. Dave's definite submission however has been that the
appellants are not entitled to get the additional FSI and thus resultantly no
relaxation on heights also is permissible. We are however, unable to record our
concurrence therewith by reason of the factum of the issuance of the letter by
the Director, Town Planning Department in terms of provision of Rule 28.2 and
the entitlement follows therefrom.
The
issue of res-judicata as urged by Mr. Dave need not detain us for long since in
our view, the doctrine or even constructive res judicata cannot possibly be
have any application in the contextual facts.
The
other aspect of the matter requiring consideration pertains to the letter dated
31.12.1996 addressed to the Chief Officer, Municipal Council, Panchgani by the
Assistant Director, Town Planning, Satara wherein the latter intimated the
Municipal Council that sanction should not be granted taking into consideration
the sanctioned development plan of the Panchgani city. The reason for such a
refusal as available therefrom has been stated to be:
"Area
of the construction of the building of the first floor and ground floor carried
out at the said premises i.e. total area of construction is more than the
construction area which is permissible and sanctioned by the Hon'ble Director,
Town Planning, Maharashtra State, Pune vide letter No.DS/Panchgani/Star
Hotel/final Plot No.414-E, T.P.S.3/TPV-2/3060/dated 13.6.95." Needless to
record and as noticed hereinbefore that the Council acting on the basis of such
an intimation rejected the plan and issued the impugned notice. Even a cursory
look at the sanction letter dated 8/13.6.1995 belies the contents of the letter
under reference dated 31.12.1996. The sanction pertains to the additional FSI vis-a
vis the circular issued by the Government dated 7th October, 1971. The sanction letter dated 8/13.6.1995 did not speak of
construction or grant of sanction pertaining to the ground and first floor at
the said premises. The Director, Town Planning by the letter dated 8/13.6.1995
never sanctioned any construction area in the ground and first floor at the
same premises. As a matter of fact, the letter under reference dated 31.12.1996
seems to be overriding the order of the Director. Significantly, however the
letter dated 31.12.1996 corroborates the stand of the appellants that there was
in fact a sanction by the Director, Town Planning vide letter dated
8/13.6.1995. While it is true that sanction was granted for additional FSI as
also increased height but there was never any mention or any sanction conveyed
for ground and the first floor construction in the letter. It cannot thus but
be termed to be the brain child of the Assistant Director who has, in fact,
superseded the order of the Director - is this a permissible state of affairs?
Mr. Deshpande offered us an answer in silence! Obviously he does not have
anything else at his disposal to justify the issuance of the letter.
Provision
No.28.2 of the Development Control Regulation has been taken recourse to and
the Assistant Director not been able to avoid the same, simply recorded the factum
of construction area on the ground and first floor being in excess of the
sanction granted by the Director, Town Planning. The act or acts on the part of
the Assistant Director by reason of the contents of the letter dated
8/13.6.1995 cannot but be said to be wholly without jurisdiction and
consequently the action on the basis thereof as taken by the Municipal Council
cannot also be sustained.
The
observations as noticed hereinbefore thus stands supported by the
municipality's own public notice This aspect of the matter has also escaped the
attention of the High court and as such, the High Court fell into a clear
error.
As
regards the issue of deemed sanction, the High court answered it in the
negative recording therein that the appellants were refused of any sanction
though beyond the period as such deemed sanction would not arise.
Unfortunately, we cannot lend our concurrence thereto. Panchgani Municipal
Council being a 'C' Class Municipal Council of Maharashtra in its Standardised
Buildings Bye-laws, in particular, bye-law 9.2 records that while the authority
may sanction or refuse a proposal, there stands an obligation on the part of
the authority to communicate the decision and where no orders are communicated
within 60 days from the date of submission of the plan either by way of a grant
or refusal thereto, the authority shall be deemed to have permitted the
proposed construction. In view of our observations noticed hereinbefore, we are
not inclined to go into this issue in any detail suffice however to record that
the submissions pertaining to deemed sanction has substance and cannot be
brushed aside in a summary fashion. Eventual rejection does not have any manner
of correlation with deemed sanction - it is only that expiry of the 60 days
that the sanction is deemed to be given, subsequent rejection cannot thus
affect any work of construction being declared as unauthorised. The deeming provision
saves such a situation. As noticed above, we are not inclined to detain
ourselves any further on this score.
Incidentally,
be it noted that even though at the initial stage of hearing, environmental
degradation was spoken of but the same have not been adverted to at all at the
time of final submissions - the same were restricted to municipal violations.
Environmental
Audit Report has not seen the light of the day.
Obviously,
there would not be any such affectation and we also thus do not feel it expedient
to deal with that aspect of the matter.
In the
view we have taken, we are unable to record our concurrence with the
submissions of both the Intervenors and Municipal Council as well the State
Government. The Appeals are thus allowed. The order of the High Court stands
set aside. It is however made clear that in the event of there being any
infraction of the order of the Director pertaining to additional F.S.I. and the
height as relaxed by the Director and in the event of there being any
infraction of the Building Rules concerning the ground and the first floor or
the basement thereof, the municipality would be at liberty to take appropriate
steps in accordance with law. We do feel it expedient to direct further that
the appellants should furnish a fresh undertaking as regards the user of the
basement in this Court within a period of four weeks from the date of the
availability of a copy of this judgment.
The
Registry is directed to make available a copy of this judgment to the
appellants with utmost expedition.
No
order however as to costs.
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