Suresh Estate P. Ltd.
& Ors. Vs. Municipal Corp. of Greater Mumbai & Ors. [2008] INSC 2189
(16 December 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION Contempt Petition (Civil) No. 102 of 2008
In Civil Appeal No. 5948 of 2007 Suresh Estate Pvt. Ltd. & others ...
Petitioners Versus Municipal Corporation of Greater Mumbai And others ...
Respondents
J.M. Panchal, J.
1.
By
filing the present contempt petition, the petitioners have prayed to take
action against the respondents, who, 2 according to them, have not implemented
nor acted according to the judgment of this Court dated December 14, 2007, rendered
in Civil Appeal No. 5948 of 2007 requiring the State Government to take a
decision on the application submitted by the petitioners seeking permission to
develop their plot on the basis that the provisions of D.C. Rules, 1967 were
applicable and decide the said application in the light of the recommendations
made by the Competent Authority as well as the fact that other hotels, as
pointed out by the petitioners, were granted more FSI than 1.33 permissible
under Rule 10(1) of the D.C. Rules, 1967.
2.
The
petitioner Nos. 1 and 2 are the companies incorporated under the provisions of
the Companies Act, 1956. The petitioner No. 2 owns a plot of land bearing CTS
No. 2193(P) of Bhuleshwar Division at Dr. Babasaheb Jaykar Marg, Thakurdwar,
Mumbai. The plot admeasures approximately 8983 square meters. The plot was
reserved for play ground of municipal primary 3 school and secondary school as
well as for D.P. Road.
The petitioner No. 1
caused a purchase notice to be served upon the municipal authorities on June 16,
2005.
Under the provisions
of the Maharashtra Regional Town Planning Act, 1966 (`M.R.T.P. Act' for short)
the Municipal Corporation found that the land was encumbered with residential
as well as commercial structures and the cost of purchase would be roughly
about Rs.13.6 crores, which was very high. The Municipal Corporation,
therefore, decided not to purchase the said plot of land. Therefore, the
reservation on the plot lapsed on December 16, 2005 under the relevant
provisions of M.R.T.P. Act. The petitioners thereupon desired to develop the
plot for construction of a luxury hotel. In exercise of rule making power
conferred by the M.R.T.P. Act, the State Government had framed Development
Control Rules, 1967 (`the D.C. Rules' for short). The Ministry of Environment
and Forests had issued Notification I on February 19, 1991 4 under Sections
3(1) and 3(2)(v) of the Environment (Protection) Act, 1986 and Rule 5(3)(d) of
the Environment (Protection) Rules, 1986, declaring coastal stretches as
Coastal Regulation Zone (CRZ) and regulating activities in the said zone, as a
result of which the plot belonging to the petitioners falls within the CRZ II.
The petitioners submitted the plans to develop the land in question by
constructing a luxury hotel in terms of D.C. Rules of 1967 on December 26,
2005. According to them, they were entitled to additional FSI of 3.73 times the
FSI in addition to 1.33 FSI allowable on the said plot.
It was the case of
the petitioners that on December 31, 2005, the Municipal Corporation submitted
a proposal to the Principal Secretary, Urban Development Department, Government
of Maharashtra recommending, inter alia, to grant additional FSI as prayed for
by the petitioners. On a clarification sought by the State Government from
Ministry of Environment and Forests, the Union of India informed the Principal
Secretary, Urban Development 5 Department, Government of Maharashtra, that the
D.C.
Rules as existed on
February 19, 1991 would apply to the areas falling within the CRZ Notification
and not the Draft Regulations of 1989. Incidentally, it may be mentioned that
the Draft Regulations of 1989 came into force on February 20, 1991. On February
21, 2007 the Ministry of Environment and Forests granted environmental
clearance to the petitioners for construction of a residential hotel and
commercial project subject to the terms and conditions set out therein. The
case of the petitioners was that the planning authority did not communicate its
decision to them as to whether the permission sought for was granted or refused
within 60 days from the date of receipt of the application and, therefore, they
were entitled to a declaration that the permission was deemed to have been
granted in terms of Section 45(5) of the M.R.T.P. Act. In the alternative, it
was their case that in terms of the amended D.C. Rules of 1967, the Competent
Authority, with the previous 6 approval of the Government, had authority to
permit the person who had applied for permission to exceed floor space indices
in respect of buildings of educational and medical relief institutions as well
as Government and semi-Government offices and luxury hotels and as the Taj
Mahal, Oberoi, Sea Rock, President, Ambassador amongst other hotels were
granted benefit of additional FSI under Rule 10(2) of D.C. Rules, 1967, they
were also entitled to additional FSI of 3.73 than the permissible FSI of 1.33
available under the relevant Rules. Under the circumstances the petitioners
invoked extra ordinary jurisdiction of the High Court of Judicature at Bombay
under Article 226 of the Constitution by filing Writ Petition No. 1627 of 2007
and prayed (1) to declare that the application submitted by them on December
26, 2005 to the Municipal Corporation of Greater Mumbai to give permission to
develop the land in question stands granted in view of Section 45(5) of the
Maharashtra Regional and Town Planning Act, 1966, (2) in the 7 alternative to
direct the respondents to grant forthwith their application for permission to
develop land referred to above with additional FSI of 3.73 times the FSI
permissible under Rule 10(2) of the D.C. Rules, 1967 and (3) to direct the
respondents to allow them to proceed with the development of their plot
mentioned above for construction of luxury hotel by utilization of additional
FSI of 3.73 times the FSI permissible on the said plot as per D.C. Rules, 1967.
3.
The
High Court, by judgment dated August 13, 2007, refused to grant the reliefs
claimed by the petitioners, but directed the Government to take a decision on
the application filed by the petitioners within 6 weeks from the date of order
and communicate the order so passed to them. Feeling aggrieved the petitioners
had filed the above numbered appeal before this Court.
4.
This
Court, by judgment dated December 14, 2007, held (1) that the D.C. Rules of
1967 would be applicable to the 8 facts of the case, (2) the petitioners were
entitled to use the plot in question for construction of a hotel, (3) the
petitioners would be entitled to be granted more FSI than 1.33 in view of the norms
set out in D.C. Rules of 1967, (4) the petitioners were not entitled to a
declaration that the permission applied for was deemed to have been granted to
them as the planning authority had failed to indicate its decision within 60
days from the date of receipt of the application, and (5) the respondents
cannot be directed to grant the permission to develop their plot with demanded
FSI but the respondent-State should be directed to exercise discretion vested
in it under Rule 10 (2) of the D.C. Rules, 1967 after taking into consideration
the relevant material including the fact that other hotels were in past granted
additional FSI.
5.
In
view of above referred to conclusions the appeal was partly allowed and the
State Government was directed to take a decision on the application submitted
by the petitioners seeking permission to develop their plot on 9 the basis
that the provisions of D.C. Rules, 1967 were applicable and decide the
application submitted by the petitioners in the light of recommendations made by
the Competent Authority as well as the fact that other hotels, as pointed out
by the petitioners, were also granted more FSI than 1.33 permissible under Rule
10(1) of the D.C. Rules, 1967.
6.
The
petitioners have claimed that they made an application on December 17, 2007 to
the respondent Nos. 4 and 5 to pass necessary orders in the light of the
directions given by this Court in the above numbered appeal. By letter dated
April 22, 2008, the respondent No. 5 informed the petitioners that the
respondent No. 4, i.e., the Maharashtra Government, had approved additional FSI
of 3.67 on the net plot area subject to payment of premium at 25% for first
100% additional FSI, 50% for second 100% additional FSI and 100% for remaining
additional FSI. According to the petitioners, the respondent No. 4 asked the
petitioners to pay the 10 premium to the Government as well as to the
Municipal Corporation of Greater Mumbai and informed that on payment of the
amount of premium, the order for grant of additional FSI would be communicated
to Municipal Corporation of Greater Mumbai. The assertion made by the
petitioners is that they are entitled to FSI of 6.29 on gross plot area as per
Rule 10(2) of D.C. Rules, 1967, but the respondents have approved additional
FSI of 3.67 times of net plot area, which is contrary to the directions issued
by this Court in the above numbered appeal. The petitioners contend that as the
other hotels were granted additional FSI over and above the FSI of 1.33
permissible under the Rules, the decision to grant additional FSI of 3.67 on
the net plot area is in breach of the directions issued by this Court. What is
claimed by the petitioners is that the petitioners are not liable to pay any
premium at all as other hotels were granted additional FSI without payment of
premium to the Government and, therefore, the respondents should be hauled up
for willful 11 disobedience of the directions issued by this Court. In the
alternative, it is claimed by the petitioners that even if the premium is to be
calculated, the same works out at Rs.28 crores as against Rs.128 crores, which
is calculated by the respondents and, therefore, by imposing premium the
respondents have brushed aside the directions issued by this Court for which
appropriate action should be taken against them. Under the circumstances the
petitioners have filed the instant contempt application and claimed reliefs to
which reference is made earlier.
7.
On
service of notice the respondents have filed counter affidavit controverting
the averments made in the contempt application. In the reply it is claimed that
this Court had left the question of quantum of FSI to be granted to the
discretion of the Government and after taking into consideration the relevant
factors, the decision has been taken to grant additional FSI of 3.67 to the
petitioners, which cannot be said to be contrary to the directions issued by
this Court. It is mentioned in the 12 reply that the base FSI of 3.5 was taken
as far as hotels Hilton Tower, Oberoi, President, etc. were concerned, as those
hotels were located in Backbay Reclamation Area of `A' Ward and in addition to
the base FSI, Hilton Tower was granted additional FSI of 1.95, Oberoi Hotel was
granted additiona FSI of 1.00 and Hotel President was granted additional FSI of
0.82 whereas in the case of Taj Mahal Hotel the base FSI of 2.45 was taken
because it was not located in the Backbay Reclamation Area and the said hotel
was granted additional FSI of 2.28 and, therefore, the claim of the petitioners
that on the basis of additional FSI granted to the abovenamed hotels, the
petitioners were entitled to FSI of 6.29 has no basis at all. The respondents
have stressed in the reply that in Civil Appeal No. 5948 of 2007, decided by
this Court on December 14, 2007, there was no specific mandamus issued
directing the respondents to grant FSI of 6.29 to the petitioners nor specific
prohibition was issued not to charge premium on the additional FSI and,
therefore, the 13 order dated April 22, 2008, passed by the Government of
Maharashtra, should not be treated as contemptuous at all. According to the
respondents the Chief Engineer (Development Plan), MCGM had requested the
Government by letter dated December 31, 2005 to grant additional FSI, but
neither MCGM nor Municipal Commissioner had recommended grant of additional FSI
of 3.73 times of permissible FSI of 1.33 and, therefore, the present contempt
application should be rejected. In paragraph 11 of the reply the respondents
have tried to justify the premium of Rs.128.06 crores sought to be charged from
the petitioners and pointed out that the hotel of the petitioners, which is
situated in `C' Ward as per D.C. Rules, 1991, is not entitled to more FSI than
granted by the Government of Maharashtra vide order dated April 22, 2008. By
filing the reply the respondents have prayed to dismiss the contempt
application with exemplary costs.
8.
The
petitioners have filed rejoinder affidavit reiterating what is averred in the
contempt application and, therefore, this Court does not deem it fit to deal
with the same in detail.
9.
This
Court has heard the learned counsel for the parties at length and considered
the documents forming part of the instant application.
10.
As
is clear from the directions issued by this Court vide judgment dated December
14, 2007, rendered in Civil Appeal No. 5948 of 2007, the prayer made by the
petitioners to direct the respondents to grant FSI of 6.29 was specifically
refused and the State Government was directed to decide the application
submitted by the petitioners for sanction of the plans in the light of the
provisions of D.C. Rules, 1967. As pointed out by the respondents the base FSI
was 3.5 in cases of Hotels Hilton Tower, Oberoi and President as those hotels
were located in Backbay Reclamation Area of `A' Ward and Hilton 15 Towers was
granted additional FSI of 1.95, Oberoi was granted additional FSI of 1.00 and
Hotel President was granted additional FSI of 0.82. It is averred in the reply
that as far as Taj Mahal Hotel is concerned the same was not located in the
Backbay Reclamation Area and, therefore, base FSI was taken to be 2.45 and
additional FSI of 2.28 was granted. Under the circumstances it becomes evident
that the additional FSI of 3.67 granted to the petitioners is much more than
the additional FSI granted to the other hotels. As explained by the respondents
the Chief Engineer (Development Plan), MCGM had requested the Government vide
letter dated December 31, 2005 to grant additional FSI, as demanded by the
petitioners, but neither MCGM nor Municipal Commissioner had recommended for
grant of additional FSI of 3.73 times of permissible FSI of 1.33. Moreover, it
is stated by the respondent in paragraph 10 of the reply that the decision to
grant additional FSI of 3.67 over and above the basic permissible 1.33 comes to
93.06%. On the 16 facts and in the circumstances of the case it is difficult
for this Court to conclude that the decision to grant total FSI of 5.00 to the
proposed hotel of the petitioners is contrary to the directions issued by this
Court.
11.
By
this Court's judgment the State Government was directed to take a decision on
the application submitted by the petitioners to develop their plot on the basis
of the provisions of D.C. Rules, 1967 with the discretion available to the
Competent Authority under Rule 10(2) of the said Rules.
In paragraph 15 of
the judgment, it was directed: - "In the light of the recommendations made
by the Competent Authority as well as the fact that other hotels as pointed out
by the appellants were also granted more FSI than 1.33 permissible under Rule
10(1) of the D.C. Rules, 1967."
It was urged by the
petitioners that the order passed by the authority, calling upon the
petitioners to pay premium of Rs.128.06 crores, is contrary to what had been
directed by this 17 Court. As regards premium payable by the applicants/
petitioners, it was not a matter in issue, nor it was argued. But the direction
was to consider application in accordance with D.C. Rules, 1967. According to
the Petitioners, if 1967 Rules are applicable, no premium would be payable by
the petitioners. It is also argued that the imposition of heavy premium was
done purposely to deny the benefits of the judgment passed by this Court. As it
is a matter which came into issue subsequent to judgment passed by this Court,
we leave the matter open to be agitated in other appropriate forum and we make
it clear that we do not express anything on merit regarding the issue whether
the petitioners are liable to pay any premium or not.
12.
The
above discussion makes it very clear that there is no willful disobedience of
any of the directions issued by this Court while disposing of the appeal filed
by the petitioners. This Court does not find that the respondents are guilty of
willful disobedience to the judgment rendered by this Court. As no case for
initiating proceedings for civil contempt is made out by the 18 petitioners
against the respondents, the instant application cannot be entertained and is
liable to be dismissed.
13.
For
the foregoing reasons, the contempt application fails and is dismissed. Having
regard to the facts of the case there shall be no order as to costs.
...................................CJI
[K.G. Balakrishnan]
.....................................J.
[P. Sathasivam]
.....................................J.
[J.M. Panchal]
New
Delhi;
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