Jayant Achyut Sathe Vs.
Joseph Bain D'souza & Ors.  INSC 1504 (4 September 2008)
IN THE SUPREME COURT
OF INDIA CIVI APPELLATE JURISDICTION CIVIL APPEAL NO. 2970 OF 2006 Jayant
Achyut Sathe .......Appellant Versus Joseph Bain D' Souza and Ors.
Civil Appeal No. 2971 of 2006 Civil Appeal No. 2972 of 2006 Civil Appeal No.
2973 of 2006 Civil Appeal No. 2974 of 2006 Civil Appeal No. 2975 of 2006 Civil
Appeal No. 2978 of 2006 Civil Appeal No. 2979 of 2006 Civil Appeal No. 2976 of
2006 Civil Appeal No. 2977 of 2006 Civil Appeal No. 5491 of 2008@ SLP
(C)6712/2007 Civil Appeal No. 5492 of 2008@ SLP (C)6713/2007 Civil Appeal
No.5493 of 2008@ SLP (C)6715/2007 Civil Appeal No.5494 of 2008@ SLP (C)6714/2007
Civil Appeal No. 5495 of 2008@ SLP (C)6716/2007 Civil Appeal No. 5490 of 2008@
SLP (C)14289/2007 Civil Appeal No. 5496 of 2008@ SLP (C)22326 /2008(CC.2987/08)
Cont.Pet. (C) No.44/2008 in C.A. No.2970/2006)
Dr. ARIJIT PASAYAT,
in these appeals is to the judgment of the Bombay High Court which while
holding that Regulation 33 (7) of the Development Control Regulations, 1991 (in
short the `Regulations') for the city of Mumbai as amended in the year 1999
does not suffer from any illegality, further observed that the same applies
only to dilapidated buildings of `A' category which satisfy the requirement and
those declared prior to the monsoon of 1997 under 3rd proviso are covered under
Regulation 33(7) and are entitled to extra "Floor Space Index"
(in short `FSI'). It
also directed that certain site space has also to be provided.
conclusions essentially are as follows:
"For the reasons
stated above, we hold that the petition is very much maintainable and we read
the provisions of the first part of D.C. Regulation 33 (7) to cover only the
privately owned dilapidated buildings which require reconstruction and where
the cost of structural repairs exceeds the monetary requirement specified under
Section 88(3) of the MHAD Act (vis. Rs.1200/- per sq.meter as of now).
In the circumstances,
prayer (b) of the petition deserves to be accepted though not prayer (a) and
D.C. Regulation 33(7) will have to be read to mean that only the dilapidated
buildings of "A" category which satisfy this requirement (and those
declared unsafe prior to the monsoon of 1997 under 3rd proviso thereof) are
covered under D.C. Regulation 33(7) and entitled to extra FSI provided therein.
As far as the
challenge to the side spaces being reduced to half as against what is otherwise
provided, it was submitted that the provision is totally unreasonable. The side
spaces will now hardly be about 1.5 metres (about 5 feet) and for a building
upto 24 metres, no separate fire fighting arrangement will be insisted. This
will almost mean a building of ground plus 7 floors. The fire engines will not
be able to go inside. In our view, independently on the merits of this
submission, it.is required to be accepted. It was submitted by the respondents
that in the erstwhile buildings there was hardly any space between two such
buildings and if one goes for a tower, i.e. above 24 metres, obviously the side
space will increase and the fire fighting facilities will have to be provided.
In our view, this is no answer to the safety of the occupants with height of
less than 24 metres. We may not interfere into the reduction of the
recreational space or not providing the parking facilities though that will
also create difficulties for the residents of such buildings. Considering that there
is so much of space crunch, we may not interfere into the decision of the rule
makers in that behalf. However, having the side space of only 5 feet for
buildings of the height less than 24 metres (of ground plus 7 floors) is on the
face of it something difficult to substantiate. That provision of the D.C.
Regulations will have to be held as arbitrary, unreasonable and violative of
Article 14 of the Constitution. We have no option, but to accept prayer (f) to
this extent. The requirement of reducing side spaces for the buildings to be
reconstructed is bad in law and they will have to be provided with the minimum
side spaces as required in the buildings on small plots, vis. 3.6 metres.
The Apex Court has
observed in its order of 21st April, 2006 that no third party rights will be
created and it further observed that it will be for the High Court to deal with
that aspect. This being the position, we direct, with a view not to cause
prejudice to the investors, that those projects of reconstruction, which have
already been approved, will proceed as it is. However, the buildings not having
the certificate of the cost of structural repairs exceeding Rs. 1200/- per sq.
m. under section 88 (3) of the MHAD Act will not be permitted reconstruction
henceforth. For future, the certificate under section 88 (3) of the MHAD Act,
viz. that the structural repairs cannot be carried out within the monetary
limits specified therein will be mandatory requirement whereafter if 70% of the
occupants and the landlord come together, the benefit under 4 Regulation 33(7)
will be available and not otherwise.
Similarly, in all
such buildings to be reconstructed, the side spaces will be maintained at least
as in the case of other buildings on small plots vis. 3.6 metres."
background facts in a nutshell are as follows:
The three writ
petitioners (respondent Nos. 1, 2 and 3 herein) claiming to be public spirited
citizens filed a writ petition before the Bombay High Court. The 1st petitioner
is a former Municipal Commissioner of Mumbai, who is also a former Chief
Secretary of the State of Maharashtra. The 2nd petitioner has been a member of
various committees concerning urban development. The 3rd petitioner is a Civil
Engineer by profession and for many years was an Executive Committee Member of
the Bombay Metropolitan Authority. He was also a member of the Slum
Rehabilitation Committee constituted by the State of Maharashtra.
respondents in the writ petition were the State of Maharashtra through the
Secretary, Urban Development Department, Municipal Corporation of Greater
Mumbai which is the Planning Authority for the city of Mumbai under the
Maharashtra Regional and Town Planning Act, 1966 (in short the `Town Planning
Act') whereunder the regulations are framed. Respondent No.3 was a statutory
authority constituted under the Maharashtra Housing and Area Development Act,
1976 (in short the `Development Act'). The concerned authority is Maharashtra
Housing and Area Development Authority (MHADA). Respondent No.4 was the former
Municipal Commissioner of Mumbai whose report was amongst others led to the
amendment of the Regulations in the year 1999. Several parties intervened in
the matter. Two of them were the property owners. One was the Property Owners'
Association and one claimed to be a tenant in pre 1940 building. One of the
interveners was Property Redevelopers' Association. Intervener No.6 was an
Architect by profession who supported the petition while others opposed the
Earlier, a Division
Bench of the High Court rendered a judgment on 17.10.2005. The Division Bench
accepted number of grievances and amongst others appointed a few Committees to
look into some such aspects which according to it had relevance for the issues
highlighted in the petition.
One of the interveners
filed an appeal relatable to Special Leave Petition(C) No.1376 of 2006 and
others also filed appeals. By order dated 14th July, 2006 this Court disposed
of the appeals inter-alia with the following observations:
"The High Court
has not dealt with the basic issues raised in the petition, i.e. as to whether
the amended Regulation 33(7) suffered from any infirmity. We, 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 re-iteration that the High Court
shall examine the challenge to Regulation 33(7) as amended in 1999."
Therefore, this Court
directed the High Court to deal with only that issue relating to the validity
of the provisions and the maintainability of the writ petitions. Intervention
applications had also been filed before this Court. These applications were
also to be directed to be dealt with by the High Court.
The grievances of the
petitioners as noted before the High Court were as follows:
are concerned with the problem of congestion of the population in the island
city of Mumbai. The island area of the city covers the area from Colaba in the
South to Mahim and Sion in the North (which originally consisted of eight
islands before they were all linked). The areas of suburbs and extended suburbs
are not covered when one speaks of the island city. The existing infrastructure
in the island city, particularly with respect to roads, water supply, sewage
system, open areas and gardens, is already over stretched and under extreme
strain. The petitioners point out that the island city has already reached the
saturation point with respect to the population that it can accommodate, which
is not disputed by any of the public authorities concerned. According to the
report entitled "Report on the Development Plan of Greater Bombay,
1966", the total acreage of the island city is 17, 388.83 acres and the
ultimate population, which it can accommodate, is 32.5 lakhs. As of now, the
existing population of the island city is already in excess of this figure of
ultimate population. It is now estimated to be 33.4 lakhs. It is another matter
that the population in the suburbs is much more, but the area covered there is
also much more than the island city. The petition is concerning only the island
There is no dispute
whatsoever that the present pubic amenities are inadequate to cater to the
present population. Hence, according to the Petitioners, any cause for the
increase in the population in the island city has to be appropriately dealt
with. Coupled with this deterioration of the infrastructure in the island city,
it is also a fact that a very large number of buildings, i.e. more than 16,500
(16,502 according to one estimate) were constructed prior to 1940 and are in
the need of urgent repairs and in some cases reconstruction.
The State has taken
it upon itself to see to it that these buildings are repaired and, wherever
necessary, reconstructed and for that purpose, it created the Bombay Building,
Repairs and Reconstruction Board by passing the Bombay Building Repairs and Reconstruction
Board Act (Act No.XLVII of 1969). One of the main reasons for this large number
of unattended buildings has been the freezing of the rent under the Bombay
Rents, Hotel and Lodging House Rates Control Act, 1947 ("the Bombay Rent
Act" for short). Rents received by the landlords were found very much
insufficient for them to carry out repairs.
The Bombay Buildings,
Repairs and Reconstruction Board Act was later on repealed and the activities
under the Act were taken over by the Maharashtra Housing and Area Development
Authority (MHADA) when the Maharashtra Housing and Area Development Act (MHAD
Act) was passed in 1976. A cess was to be contributed by the tenants of the
private buildings known as Mumbai Building, Repairs and Reconstruction Cess
under Section 82 of the said Act. Lands and buildings owned by the Central
Government, State Government, Municipal Corporation of Mumbai, Mumbai Port
Trusts, lands and buildings vested in MHADA, lards and buildings of the Public
Trusts exclusively occupied for worship or educational purposes and those
vested in or leased to a cooperative society, buildings exclusively in
occupation of the owner, buildings exclusively used for non-residential
purposes and some other properties as mentioned in section 83 were exempted
from this requirement of paying the cess.
buildings were divided into the following three categories under section 84 of
the MHAD Act.
"A" Buildings erected prior to 1/9/ 1940 Category "B"
Buildings erected between 1/9/ 1940 and 31/12/1950 Category "C"
Buildings erected prior to 1/ 1/ 1951 and 30/12/1969 It appears to be the
common case that as of now as per the affidavit of the State Government in the
present matter, there are some 16502 buildings in "A" Category, 1491
buildings in "B" Category and 1651 buildings in "C"
Chapter VIII of MHAD
Act provided for repairs and reconstruction of dilapidated buildings. Under
section 88 from Chapter VIII of the MHAD Act, Mumbai Housing and Area
Development Board was supposed to undertake structural repairs of the
buildings, which were in ruinous condition and likely to deteriorate and fall.
However, section 88 (3) 10 provides that where the cost of the structural
repairs exceed Rs.1200/- per sq. m., the Board may not consider such buildings
for repairs and issue a certificate to that effect to the owner of the
buildings and affix it on the building for the information of occupiers and
then proceed to take action as provided in this Chapter. Thereafter where the
occupiers were ready to contribute to the cost in excess of Ps.1200/- per sq.
metre, the Board may carry out the structural repairs, for which a provision is
made in section 89 of the MHAD Act.
This will mean that
oherwise the steps for reconstruction will be taken by acquiring the property
as provided in sections 91 and 92 of this Chapter. Section 91 provides for
reconstruction where a building suddenly collapses or becomes inhabitate due to
fire, torrential rein or tempest or otherwise. Section 92 lays down the
procedure for acquisition where however a building suddenly collapses."
The High Court noted
that there was no dispute that there was hardly any progress in the matter of
repairs and/or re-construction by the procedure provided. Therefore, even in
the year 1981 the Government appointed a Committee under one Mr. Ajit Kerkar to
consider the problems. The Committee emphasized that there should be a shift
from re-construction of individual buildings to the re-development of the
entire localities and the formulation of a programme of urban renewal.
The High Court noted
that it was a common case that MHADA found it difficult to put in adequate
funds for acquisition of properties for reconstruction under Chapter VIII of
the Development Act and, therefore, Chapter VIII-A was introduced in the said
Act. The provisions of this Chapter have been stated to be notwithstanding what
was provided in Chapter VIII as stated in Section 103-B of Chapter VIII-A. The
provisions under this Chapter were to operate when 70% of the occupiers came
together and approached the Government to acquire the property. They were
required to assure to contribute towards acquisition and take steps since the
landlords were not cooperating and under the Scheme of this Chapter the
developed buildings were to be given FSI 2.
These provisions also
did not receive adequate response.
On 25.3.1991 the
Regulations were notified for greater Mumbai. Regulation 33(7) to which these
cases relate provided for reconstruction or re-development of cessed buildings
in the island city by cooperative housing societies or of old buildings
belonging to the Corporation. The Regulation provided for old consumed FSI or
FSI 2 whichever is higher. This Regulation was further amended on 25.1.1999 to
provide the FSI of 2.5 on the gross plot area or the FSI required for
rehabilitation of the existing tenants plus incentive FSI as specified in
Appendix III to the Regulations. This amendment was brought about after a
report was submitted by Study Group under the Chairmanship of Shri D.M. Sukhtankar,
former Municipal Commissioner who was respondent No.4 in the writ petition.
The Study Group had
submitted its reply to the State Government in July 1997 leading to amendments
in the year 1999. The Regulation was further amended by adding a new clause
w.e.f. 27th February, 2004 whereby apart from the Corporation buildings, those
of Department of Police, Police Housing Corporation, Jail and Home Guard of
Government of Maharashtra constructed prior to 1940 were also covered.
13 The main
grievance in the writ petitions was that there was gross misuse of the amended
Regulation 33(7) when applied to private buildings with which the petitions
were concerned. They submitted that taking shelter under the amended Regulation
33, there has been misuse by pulling down buildings which are otherwise in good
conditions merely because they were constructed prior to 1940. It was further
submitted that there are no guidelines under the Regulations to lay down as to
who are the tenants or occupiers who are eligible to be protected under the
Regulations. Numbers of instances were cited. It was submitted that builders
and developers and people with money and muscle power were dishousing genuine
tenants/occupiers. The numbers of tenants/occupiers were being inflated by
creating bogus tenancies to claim extra FSI. The consequence, it was submitted,
was that there was going to be unjustified and tremendous increase in the
population in the island city causing further strain on its infrastructure. It
was their case that the extra FSI as per the amended Regulation was meant for
the reconstruction of unsafe and dilapidated buildings only and not for all the
16502 `A' category cessed buildings. The dilapidated buildings are supposed to
be just about 10% of them. Accordingly, there was a prayer to prevent strong
and sound cessed buildings which are not in danger of collapse to be not pulled
down and Regulation 33(7) should be declared to be applicable only to those
cessed buildings which are dilapidated and are in unsound and in unsafe
Challenge was to the
reduction in the marginal open space requirement for the buildings under
Regulation 33(7) read with Appendix III as provided for the buildings under
other regulations and it was prayed that same should be also struck down.
Stand of the
respondents apart from questioning the maintainability of the writ petitions,
the locus standi of the writ petitioners, was that Regulation 33(7) as amended
was applicable to all `A' category cessed buildings which are constructed prior
to 1940. Whenever 70% of the tenants/occupiers of such buildings came together
alongwith their landlords for redevelopment of their properties, they were
entitled to get extra FSI. This will provide houses with minimum 225 sq.ft.
free of cost to all tenants in these pre- 1940 buildings. Many of them are
otherwise cramped in still smaller tenements. The benefit could not be
restricted only to the old and dilapidated buildings. There was no such
restriction contemplated under Regulation 33.
The High Court while
upholding the validity of Regulation 33(7) accepted some of the prayers of the
writ petitioners which are led to the filing of the appeals.
5. Stand of
appellants in these appeals is that the amended Regulation 33(7) came into
force on 25th January, 1999 after inviting suggestions/objections from the
public at large under Section 37 of the Town Planning Act, 1966 and after
considering the same. Neither any suggestions nor any objections were filed by
the writ petitioners nor did they challenge the said amended D.C. Regulation
33(7) from 1999 till October, 2004. In other words there was a delay of nearly
is submitted by learned counsel for the appellants that Public Interest
Litigation as claimed to have been filed is not maintainable. Such a petition
lies at the instance of the a third party only when it is shown that the
affected person is unable to approach the Court. It would not lie if a section
of the public was not interested in the cause. The writ petitioners did not
file any objections or suggestions when statutory notice was issued. Therefore,
they could not have invoked Article 226 of the Constitution and to pray that
the High Court should consider their suggestions and restrict the regulation to
old and dilapidated buildings beyond economic repair as set out in Section 88
of the Development Act or to consider impact on environment or infrastructure
due to unlimited FSI or to restrict the FSI given to MHADA. They, therefore,
seek to substitute the High Court for the statutory authorities. This is not
permissible. The affected parties to any dispute on the PIL are essentially the
property owners and the persons against whom serious allegations of alleged
misuse of the regulation were made. These persons were not impleaded.
It is a settled
position in law that in cases of public interest litigation the principles of
natural justice apply and any order passed without impleading the affected
parties would be bad.
The prayer was to
amend the Regulations as framed. This prayer could not have been accepted. As
per the Kerkar Report the FSI permissible to the Board ranged between 3.19 and
5.88. By the impugned judgment the applicability of Regulation 33(7) was
restricted to dilapidated buildings, the cost of repair which was beyond the statutory
time limit fixed under Section 88 of the Development Act. Such a course is
impermissible as it is contrary to the intention of the delegated legislation
in view of the clear use of the expression "subject to the provision of
MHADA Act" which has been used in the directives issued under Section 154
of Town Planning Act in January 1989. Notification dated 9.3.1989, DC
Regulation of 1991 and the amendments made in 1994 to the DC Regulations of
1991 were deleted. The expression "old and dilapidated cessed
buildings" have been used in the Government Policy on reconstruction of
old buildings of 12.11.1984 and in the letter dated 20.3.1987 regarding
Regulations of 1991, and the amendments made in 1994 to the Regulations of
1991. The expression "old and dilapidated cessed building" had been
used in the Government Policy on Reconstruction of old buildings of 12.11.1984
and in the letter dated 20.3.1987 regarding Regulations, and the said
expression is not found in Regulation 33(7). It has been consistently held that
landlord need not wait for the building to get dilapidated as he is entitled to
re-construct to augment his income.
is pointed out that the historical background has great relevance also. With
the advent of the Second World War in 1939, rents in Bombay were frozen at 1939
levels, initially under the Bombay Rent Restriction Act, 1939 and subsequently
at 1940 levels under the Bombay Rent Act 1947. As a result of the freezing of
rents on the one hand and increase in prices of building materials, wages of
on the other, it was
impossible for the landlords to carry out repairs to the buildings. This led to
collapse of some buildings.
To meet this
situation, the Bombay Buildings Repairs and Reconstruction Board Act, 1969 was
enacted on 1st October 1969. It was a temporary Act for ten years. It was
applicable only to the island city of Mumbai and not to the suburbs. The
buildings in Mumbai were categorized into three groups depending on their year
of construction viz., Category "A" Buildings constructed prior 16,502
buildings. to 1/09/1940 Category "B" Buildings constructed - 1,491
between 1/09/1940 and
31/12/1950 Category "C" Buildings constructed - 1,651 buildings.
between 1/01/1951 and
30/12/1969 Total 19,644 cessed buildings
cess was levied on these buildings and the Repair Board established under the
said Act, had taken up the responsibility of repairing the said buildings. In
case the repairs were beyond economic levels, such buildings were to be
acquired by the Board and reconstructed/ redeveloped.
said 1969 Repairs Act was replaced by the Development Act, which consolidated
various Acts, including the said 1969 Repairs Act, which was inserted into
Development Act as Chapter VIII with modifications.
Collection of Cess
continued under the Development Act.
Basic objective of
Chapter VIII of said Act was to carry out structural repairs to the cessed
buildings and if they were beyond economic repairs to acquire and reconstruct.
This scheme of reconstruction/ redevelopment failed. Thereafter in 1986,
Development Act was amended by incorporating Chapter VIIIA by which 70% of the
occupiers of "A" category cessed buildings could come together and
acquire the property through Development Act for "reconstruction" on
paying only 100 months net rent to the owner [the rents were frozen at 1940
levels]. The owner had no role to play in this scheme. The occupiers could
acquire the building, demolish the building and reconstruct it. This scheme of
reconstruction/ redevelopment also failed. The Government Policy for
reconstruction/redevelopment from 12th November 1984 to 23rd November 1991
granting FSI 2 or consumed FSI whichever is more, to the co-operative societies
of the owners and occupiers also failed.
on 23rd March 1991, as part of the Town Planning Act and not as part of
Development Act, Regulation No.33 (7) was brought into force in 1991.
Regulation 33(7), in 1991 the FSI was 2 or the consumed Floor Space Index of
the existing old building, whichever is more. There was no incentive FSI. The
minimum carpet area for rehabilitating the tenants/occupiers in the new
building was 180 sq, ft. minimum upto a maximum of 735 sq. ft. The
redevelopment was to be "subject to the provisions of the said Act"
i.e. Development Act.
1994, DC Regulation 33(7) was amended to make the FSI 2 on the gross plot area
or the consumed Floor Space Index, that is, the total built-up area of the
existing old building, whichever is more. This was also "subject to the
provisions of the said Act" i.e. Development Act. The said 22
amendment to D.C. Regulation 33 (7) in 1994, however failed to achieve the
desired object. In 1996, the Maharashtra Government therefore constituted a
Committee popularly known as "the Sukhtankar Committee", which
committed comprised of members from all affected groups including tenants,
landlords, bureaucrats, experts, etc. It was a very broad-based Committee. The
terms of reference inter alia included how the reconstruction of the old cess
buildings could be speeded up.
detailed deliberations held over a large number of meetings, in July, 1997, the
Sukhtankar Committee submitted its report to the Government. It was noted in
the said Report that the life of most of the buildings in Category
"A" had nearly come to an end and instead of repairing such buildings
periodically, their reconstruction would be the only far sighted solution. It
was felt that without giving incentive FSI nothing could be achieved in respect
of reconstruction and redevelopment of the old buildings.
amendment was made on 25'h January 1999 to Regulation 33(7), under the
provisions of the Town Planning Act, whereby for reconstructing "A"
category cessed buildings, FSI of 2.5 was granted on the gross plot area or the
FSI required for rehabilitating the tenants plus 50% to 70% incentive FS], (as
specified in Appendix III] whichever is more.
"subject to provisions" of Development Act were expressly deleted.
under the 1st proviso to the amended Regulation 33(7), with the prior approval
of the Government, MHADA and the Corporation would be eligible to get
additional incentive FSI over the otherwise permissible FSI as specified in
Annexure III of these Regulations without any cap.
history of the Regulation 33(7) framed under the Town Planning Act, 1966 for
reconstruction and redevelopment and the scheme for reconstruction/
redevelopment under Development Act shows that there are separate schemes under
two separate Acts, that are self contained and one cannot borrow the provisions
from one Act and incorporate them into the other, without upsetting the scheme
of Regulation 33(7) read with Appendix III thereof.
scheme under Regulation 33(7) involves landlords with the consent of 70% of the
occupiers. There is no acquisition for redevelopment under this Scheme.
Therefore to bring in "old and dilapidated buildings" which is a
prerequisite for acquisition and reconstruction under the other Scheme, namely
under Chapter VIII of MHADA cannot be included in the provisions of Regulation
33 (7) read with Appendix III.
counsel for the original writ petitioners on the other hand submitted that the
matters involved are not to be considered in the background of factual scenario
only. The concept of Article 21 of the Constitution of India, 1950 (in short
the `Constitution') cannot be lost sight of. It is submitted that there is
congestion and pressure on the infrastructure facilities such as, sewerage,
The fire safety
requirements cannot be adhered to in the cramped areas. With the increased
inflow of persons into the island city of Mumbai, the quality of life will be
reply, learned counsel for the appellant submitted that there was no need for
filing a Public Interest Litigation if there was good governance. The buildings
in question are situated in extremely congested localities. There are narrow
are Ground plus First floor and some times two to four or to six floors.
Originally, there was no notion of FSI which is presently prescribed.
Development Act does not really deal with present issues. The density
development parameters are very relevant.
With high FSI the
density goes off. The basic challenge was to the non-availability of the
infrastructure and the basic quality of life. The Town Planning Act has to
ensure descent quality of life. More than 16% buildings fall in `A' category
and not all that are in dilapidated condition. Regulation 67 deals with 26
heritage buildings. The structural repairs concept cannot be lost sight of.
basic question raised is applicability of Section 88 vis-a-vis Regulation
33(7). It is pointed out that focus is on structural repairs and for greater
preservation of reconstruction.
counsel for MHADA, State and the Corporation pointed out that there was no
challenge in the writ petitions to the legality of Regulation 33(7) on the
ground of either Articles 14 or 21 of the Constitution. It is urged that
nothing can be read into Regulation 33(7). Reference is also made to the
Development Act, Appendix III dealing with the procedure and the reconstruction
is pointed out that 3.6 meters space as fixed by the High Court is not
practicable. No basis has been indicated for fixation of such apace. It has
also been pointed out that many constructions already made shall be required to
be demolished if the order is followed. It is further pointed out that minimum
FSI open space was always there. Reference is made to the situation in 1984,
1987, 1989 and 1991. Clause (6) in the old Appendix continued till 2004 and
there was no challenge earlier. It is pointed out that there cannot be any
fixed norms to satisfy whether the building is dilapidated or not.
the scope of judicial review in matters of policy need to be looked into. In
Balco Employees Union (Regd.) v. Union of India and Ors. (2002 (2) SCC 333) it
was observed as follows:
the analogy, just as the court does not sit over the policy of Parliament in
enacting the law, similarly, it is not for this Court to examine whether the
policy of this disinvestment is desirable or not. Dealing with the powers of
the Court while considering the validity of the decision taken in the sale of
certain plants and equipment of the Sindri Fertilizer Factory, which was owned
by a public sector undertaking, to the highest tenderer, this Court in
Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India SCC 568 at p.584,
while upholding the decision to sell, observed as follows: (SCC para 35) 28
"We certainly agree that judicial interference with the administration
cannot be meticulous in our Montesquien system of separation of powers. The
Court cannot usurp or abdicate, and the parameters of judicial review must be
clearly defined and never exceeded. If the directorate of a government company
has acted fairly, even if it has faltered in its wisdom, the court cannot, as a
superauditor, take the board of directors to task. This function is limited to
testing whether the administrative action has been fair and free from the taint
of unreasonableness and has substantially complied with the norms of procedure
set for it by rules of public administration."
36. In State of M.P.
v. Nandlal Jaiswal the change of the policy decision taken by the State of
Madhya Pradesh to grant licence for construction of distilleries for
manufacture and supply of country liquor to existing contractors was
challenged. Dealing with the power of the Court in considering the validity of
policy decision relating to economic matters, it was observed at pp.605-06 as
follows: (SCC para 34) "34. But, while considering the applicability of
Article 14 in such a case, we must bear in mind that, having regard to the
nature of the trade or business, the Court would be slow to interfere with the
policy laid down by the State Government for grant of licences for manufacture
and sale of liquor. The Court would, in view of the inherently pernicious
nature of the commodity allow a large measure of latitude to the State
Government in determining its policy of regulating, manufacture and trade in
liquor. Moreover, the grant of licences for manufacture and sale of liquor
would essentially be a matter of economic policy where the Court would hesitate
to intervene and strike down what the State Government has done, unless it
appears to be plainly arbitrary, irrational or mala fide. We had occasion to
consider the scope of interference by the Court under Article 14 while dealing
with laws relating to economic activities in R.K. Garg v. Union of India. We
pointed out in that case that laws relating to economic activities should be
viewed with greater latitude than laws touching civil rights such as freedom of
speech, religion, etc.
We observed that the
legislature should be allowed some play in the joints because it has to deal
with complex problems which do not admit of solution through any doctrinaire or
strait-jacket formula and this is particularly true in case of legislation
dealing with economic matters, where, having regard to the nature of the
problems required to be dealt with, greater play in the joints has to be
allowed to the legislature. We quoted with approval the following admonition
given by frankfurter J in morey v. Doud:
`In the utilities,
tax and economic regulation cases, there are good reasons for judicial
self-restraint if not judicial deference to legislative judgment. The
legislature after all has the affirmative responsibility. The courts have only
the power to destroy, not to reconstruct.
When these are added
to the complexity of economic regulation, the uncertainty, the liability to
error, the bewildering conflict of the experts, and the number of times the
Judges have been overruled by events -- self-limitation can be seen to be the
path to judicial wisdom and institutional prestige and stability.' What we said
in that case in regard to legislation relating to economic matters must apply
equally in regard to executive action in the field of economic activities,
though the executive decision may not be placed on as high a pedestal as legislative
judgment insofar as judicial deference is concerned. We must not forget that in
complex economic matters every decision is necessarily empiric and it is based
on experimentation or what one may call `trial and error method' and,
therefore, its validity cannot be tested on any rigid `a priori' considerations
or on the application of any strait-jacket formula. The Court must while
adjudging the constitutional validity of an executive decision relating to
economic matters grant a certain measure of freedom or `play in the joints' to
the executive. `The problem of Government' as pointed out by the Supreme Court
of the United States in Metropolis Theater Co. v. State of Chicago:
`are practical ones
and may justify, if they do not require, rough accommodations, illogical, it
may be, and unscientific. But even such criticism should not be hastily
expressed. What is best is not discernible, the wisdom of any choice may be
disputed or condemned. Mere errors of Government are not subject to our
judicial review. It is only its palpably arbitrary exercises which can be
The Government, as
was said in Permian Basin Area Rate cases, is entitled to make pragmatic
adjustments which may be called for by particular circumstances. The Court
cannot strike down a policy decision taken by the State Government merely
because it feels that another policy decision would have been fairer or wiser
or more scientific or logical. The Court can interfere only if the policy
decision is patently arbitrary, discriminatory or mala fide.
It is against the
background of these observations and keeping them in mind that we must now
proceed to deal with the contention of the petitioners based on Article 14 of
37. A policy decision
of the Government whereby validity of contract entered into by Municipal
Council with the private developer for construction of a commercial complex was
impugned, came up for consideration in G.B. Mahajan v. Jalgaon Municipal
Council and it was observed at p.104 as follows: (SCC para 22) "The
criticism of the project being `unconventional' does not add to or advance the
legal contention any further.
The question is not
whether it is unconventional by the standard of the extant practices, but
whether there was something in the law rendering it impermissible. There is, no
doubt, a degree of public accountability in all governmental enterprises. But,
the present question is one of the extent and scope of judicial review over
such matters. With the expansion of the State's presence in the field of trade
and commerce and of the range of economic and commercial enterprises of
Government and its instrumentalities there is an increasing dimension to
governmental concern for stimulating efficiency, keeping costs down, improved
management methods, prevention of time and cost overruns in projects, balancing
of costs against timescales, quality 32 control, cost-benefit ratios etc. In
search of these values it might become necessary to adopt appropriate
techniques of management of projects with concomitant economic expediencies.
These are essentially
matters of economic policy which lack adjudicative disposition, unless they
violate constitutional or legal limits on power or have demonstrable pejorative
environmental implications or amount to clear abuse of power. This again is the
judicial recognition of administrator's right to trial and error, as long as
both trial and error are bona fide and within the limits of authority."
38. To the same
effect are the observations of this Court in Peerless General Finance and
Investment Co. Ltd. v. Reserve Bank of India in which Kasliwal, J. observed at
p. 375 as follows: (SCC para 31) "31. The function of the Court is to see
that lawful authority is not abused but not to appropriate to itself the task
entrusted to that authority. It is well settled that a public body invested
with statutory powers must take care not to exceed or abuse its power. It must
keep within the limits of the authority committed to it. It must act in good
faith and it must act reasonably. Courts are not to interfere with economic
policy which is the function of experts. It is not the function of the courts
to sit in judgment over matters of economic policy and it must necessarily be
left to the expert bodies. In such matters even experts can seriously and
doubtlessly differ. Courts cannot be expected to 33 decide them without even
the aid of experts."
39. In Premium
Granites v. State of T.N. while considering the Court's powers in interfering
with the policy decision, it was observed at p.
"54. It is not
the domain of the Court to embark upon unchartered ocean of public policy in an
exercise to consider as to whether a particular public policy is wise or a
better public policy can be evolved. Such exercise must be left to the
discretion of the executive and legislative authorities as the case may
92. In a democracy,
it is the prerogative of each elected Government to follow its own policy.
Often a change in Government may result in the shift in focus or change in
economic policies. Any such change may result in adversely affecting some
vested interests. Unless any illegality is committed in the execution of the
policy or the same is contrary to law or mala fide, a decision bringing about
change cannot per se be interfered with by the Court."
is to be noted that if different language is used in the same section or in
different sections, the legislative intent is that they are intended to lead to
different results and there is a conscious intent. (See the Member Board of
Revenue vs. Arthur Paul Benthall (1955 (2) SCR 842, 845 846.) Similar was the
view expressed in Commissioner of Income Tax, New Delhi (now Rajasthan) v. M/s
East West Import and Export (P) Ltd. (now known as Asian Distributors Ltd.),
Jaipur (1989 (1) SCC 760). It was inter alia observed as follows:
Explanation has reference to the point of time at two places: the first one has
been stated as "at the end of the previous year" and the second,
which is in issue, is "in the course of such previous year". Counsel
for the revenue has emphasised upon the feature that in the same Explanation
reference to time has been expressed differently and if the legislative
intention was not to distinguish and while stating "in the course of such
previous year" it was intended to convey the idea of the last day of the
previous year, there would have been no necessity of expressing the position
There is abundant
authority to support the stand of the counsel for the revenue that when the
situation has been differently expressed the legislature must be taken to have
intended to express a different intention."
is of significance to note that in the writ petitions filed there was no
challenge to Regulation 33(7). Only incentive FSI was challenged. So far as
Regulation 33(7) is concerned, there will be no acquisition in Chapter VIII.
Stress is on spending money out of the funds and of acquisitions. Chapter
VIII-A essentially deals with occupiers. Acquisition and the Board's role is
that of certification. Under Regulation 33(7) the occupier and the landlord are
involved. There is no acquisition and there is no government fund utilized.
There is a Transferable Development Right (in short `TDR') and the concept of
is the case of the appellant that the TDR is utilized to recover the money
spent for subsidizing other constructions.
other aspects also need to be noted.
provisions relating to buildings which have been declared unsafe are
specifically covered by Regulation 33(6) and reconstruction by MHADA is covered
by Regulation 33(9).
When the situation
has been differently expressed in different sections, the legislature must be
taken to have intended to express a different intention.
survey conducted by the Corporation in 1980-81 showed that 30,237 buildings
would have crossed their life span by 1996. The Kerkar Committee report also
recorded that the vast majority of the buildings would have to be
reconstructed. The report on the Development Plan for Greater Bombay showed
that in 1981, 5,82,200 tenements were required to house the natural growth of
1991 nearly 73% of the households occupied one room tenements - vertical slums;
18% occupied two rooms i.e. most of the persons - more than 90% lived in small
Those occupying large
areas constitute 2.7% only. Between 1961 and 1991, the number of households
increased to 20,88,000. Most of the tenements are of 100 to 120 square feet
is thus clear that the policy was to enhance the quality of the lives of those
living in such poor conditions by increasing the living space to nearly double.
This is to be contrasted with the need to give a better lifestyle to those who
can afford it namely those who can afford the time to live a leisurely life. If
such people have to undergo some hardships, the policy cannot be faulted
especially when they constitute a minority.
interpreting a statute, the meaning of particular words is to be found not so
much in a strict etymological propriety of language, nor even in popular use,
as in the subject or occasion on which they are used and object that is
intended to be attained.
writ Petitioners did not challenge the validity of Regulation 33(9) pertaining
to reconstruction by MHADA or Regulation 33(7) in so far as it applies to the
reconstruction by the Government or the Municipal Corporation even though the
FSI is the same. The proviso to Regulation 33(7) allows Government,
MHADA/Corporation to get even more than the FSI specified in Appendix III.
of the buildings constructed prior to 1940 (17,490 buildings) were constructed
prior to 1905. Most of the buildings have outlived the period of their survival
80% were occupying
one-room tenements. [See: Vivian Joseph Ferreira and Anr. v. The Municipal
Corporation of Greater Bombay and Ors. 1972 (1) SCC 70 (paras 9, 10 and 11).
Mahadeolal Kanodia v. The Administrator General of West Bengal (1960 (3) SCR
578), it was held that rules of grammar require that an adjectival phrase
qualifies the proximate substance. [pages 584-585]. Applying that rule, the
term "which attracts the provisions of MHADA Act, 1976" could only
qualify the proximate substance "cessed building of A category in Island
city" and nothing more.
would be seen that with respect to reconstruction of buildings both Chapters
VIII and VIIIA require the building to be acquired by the Board for the
reconstruction in terms of Sections 92 and 103B (3). This is not the case with
Regulation 33 (7).
III casts several duties on the Board for the working of Regulation 33 (7) as
(a) Clause 3 requires
certification of the occupiers and irrevocable consent to be certified by the
(b) Clause 4 requires
that the tenements have to be allotted to the occupiers as per the list
certified by the Board;
(c) Clause 11
requires the FSI as in Regulation 33 (7) should be allowed only after the Board
is satisfied that the redevelopment proposal satisfies all the conditions to be
eligible for the benefits under the Regulations.
challenge to the restriction of five feet open space (1.5 metres) is hopelessly
delayed and barred by time as inter alia:
(i) the requirement
of limiting the open space to five feet has been in existence since 1984 and
was also a part of Development Control Regulation of 1991.
the Board reconstructs a building it covers almost the entire land save for
five feet open space. The Sukthankar Committee also recommended that the open
space should be 5 feet. The challenge to the restriction of five feet open
space has been made on the basis that the open spaces are already too low and
that the DC Regulations made it even less. This is a contention which was
rejected by this Court in Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay
Environmental Action Group and Ors. (2006) 3 SCC 434) at paras 297 & 298.
State and MHADA filed affidavits in CA 2970 of 2006 supporting the appeals. In
the affidavit dated 12th March filed by the State, it was set out that :
(i) The Tour Planning
Act does not define category A cessed buildings and the reference to the
provisions of Development Act were only to explain what the term "category
A cessed buildings" meant.
(ii) By and large the
old buildings constructed prior to 1940 were built when there was no concept of
FSI and the open spaces were at times only 2 to 3 feet.
(iii) The width of
most of the plots was about 30 feet and requiring a 12 feet open space to be
left would mean that there would be no scope to redevelop the building.
(iv) Where a building
was in the set back area as per the development plan, the land covered by the
set back area had to be given to the authorities and the road was widened.
the affidavit dated 17th March 2007 filed by MHADA, it was set out that:
(i) Reference to
Development Act is with reference to the definition of cessed buildings which
is not found under the Town Planning Act or the DC Regulations and is found
only in the Development Act.
(ii) A perusal of
Regulation 33 (7) shows that the emphasis is on pre 1940 buildings and nothing
Regulation 33 (7) to only the private buildings and not the Government
buildings would make the Regulation arbitrary.
(iv) Under Regulation
33 (10) the open space is 5 feet and to insist on 12 feet as per the High Court
judgment it would make the same unreasonable and prevent even buildings which
are on the verge of collapse from being redeveloped.
being the position, the inevitable conclusion is that the High Court was not
justified in reading additional requirements into Regulation 33(7) after
holding the same to be valid. The appeals are allowed but in the circumstances
with no order as to costs.
view of the order passed in Civil Appeal No.2970/2006 and other connected
appeals, no order is necessary to be passed in contempt petition.
(Dr. ARIJIT PASAYAT)
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