SHREE RAM URBAN INFRASTRUCTURE LTD. & ANR. versus STATE OF MAHARASHTRA & ORS. on 24 October 2019

[2019] 16 S.C.R. 993

SHREE RAM URBAN INFRASTRUCTURE LTD. & ANR.

v.

STATE OF MAHARASHTRA & ORS.

(Civil Appeal Nos. 8265-8266 of 2019)

OCTOBER 24, 2019

[ARUN MISHRA AND VINEET SARAN, JJ.]

Urban Development:

Town Planning – Permission to construct residential buildingto appellant-company – Commencement Certificate granted underthe provisions of Maharashtra Regional and Town Planning Act,1966 read with Development Control Regulations for GreaterBombay, 1991 (DCR) – Thereafter incorporation of clause 24 toRegulation 33 of 1991 Regulations providing for permission todevelop multi-storeyed Private Parking Lots (PPL) – On handing-over of the PPL to the Corporation, incentive FSI was to be allowedon the land belonging to the private owners – Appellant-Company’sapplication for construction of PPL approved upto 15 floors –Incentive FSI of the PPL was to be used by the appellant -companyin the main residential building – Though commencement certificatefor PPL was given only for upto plinth level, the appellant-companyconstructed all 15 floors – Appellant-company completed theconstruction of main residential building upto 56 floors, thoughcommencement certificate for that was only upto 43rd floor –Thereafter the Corporation issued a Circular on 22.6.2011restricting the PPL to two basements, ground and four upper floors– Notice u/s. 51 and s.354A of 1966 Act seeking revocation ofcommencement certificate and for stopping the work of PPL beyondplinth level – Suit by the appellant-Company – Civil Court decreedthe suit declaring the stop-work notice as illegal on the ground thatconstruction of PPL above the plinth level was under deemedpermission in terms of Regulation 6(4) of DCR – In appeal, HighCourt set aside the decree holding that construction of PPL aboveplinth level and construction of residential building above 43rd floorwas illegal since they were constructed without obtainingcommencement certificate (s) and the Court directed the appellantto apply for regularisation of these construction – PIL was filed

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Abefore High Court challenging construction of residential buildingand construction of PPL above plinth level – The High Court in thePIL held that construction of PPL was not illegal and that since theFSI granted in respect of refuge area was excessive, Commissionerwas directed to re-examine the issue – On direction of High Courtin PIL, Commissioner passed order dated 12.09.2013 – The orderBdated 12.09.2013 was challenged by the appellant before High Courtand also sought direction to the Commissioner to take over possessionof PPL and to endorse the commencement certificate for residentialbuilding upto 56 floors –The Commissioner passed order dated31.08.2016 deciding the refuge area – Subsequently Notice u/s. 51Cof 1966 Act was withdrawn by the Corporation – Another PIL wasfiled challenging the order dated 10.11.2016 whereby theCorporation had held that since the construction of PPL hadproceeded substantially on the date of notice u/s. 51, the PlanningAuthority cannot revoked or modify the permission – The PILs havebeen transferred to Supreme Court – Held: The construction of theDmain building as well as the PPL were as per the sanctioned plan –The construction of PPL beyond plinth level was under deemedpermission under Regulation 6(4) of 1991 Regulations – The refugearea as determined by the Commissioner by order dated 31.08.2016does not call for interference – Corporation is directed to take overEpossession of PPL and to proceed to decide about the 13 floors(44th to 56th floors) of the residential building – MaharashtraRegional and Town Planning Act, 1966 – ss. 48 and 51 –Development Control Regulations for Greater Bombay, 1991 – Regn.6(4), 5(6) and 33 (24).FPartly allowing the appeal and dismissing the Transferpetitions, the Court

Conclusion

HELD: 1.1 It is provided in the first Proviso to section48 of Maharashtra Regional and Town Planning Act, 1966 thatpermission for development or deemed permission shall remainGin force for a period of 1 year from the date of receipt of suchgrant, and thereafter it shall lapse. It can be extended from yearto year, but such extended period shall in no case exceed threeyears. The second proviso, as inserted by way of amendment ofMRTP Act in 2007, provides that if the development is notHcompleted up to plinth level or where there is no plinth, up to the upper level of basement or stilt, as the case may be, within theperiod of 1 year or extended period, under the first proviso, itshall be necessary for the applicant to make application for freshpermission. The main Section 48 does not deal with the situationwhere construction has been made up to plinth level or wherethere is no plinth, up to the upper level of basement or stilt, asthe case may be, and neither first proviso deals with the situationabove. The interpretation of the second proviso is clear that incase construction has been made up to the plinth level or wherethere is no plinth, up to the upper level of the basement or stilt,within 4 years, it shall not be necessary for the applicant to makeapplication for fresh permission for development in the light ofthe second proviso to Section 48. [Para 40] [1018-D-H]

1.2 Regulation 5(6) of Development Control Regulationsfor Greater Bombay, 1991 (DCR) deals with the commencementof the work. It does not deal with the situation mentioned in thesecond proviso to Section 48 of the Act. Regulation 5(6) providesthat on expiry of one year if the work has not already commencedand such renewal can be done for three consecutive terms of oneyear each. The Regulation has to be interpreted in tune with theprovisions contained in Section 48, as amended. It cannot curtailthe ken of Section 48. Thus in case construction has been doneup to the plinth level within four years from the date ofdevelopment permission, it would not be necessary to obtain itafresh. The finding of the High Court, to the contrary, is set aside.[Para 41] [1019-A-B]

1.3 It is apparent in the present case that in principle theapproval had been granted to raise the Public Parking Lot (PPL).On 18.6.2010 at that time, Regulation 33(24) of DCR there wasno restriction on the floors of PPL that came to be introduced in2014 before that the completion of PPL has taken place. ThePPL has been validly constructed under deemed permission.Additional FSI would be available as soon as the Corporationtakes over the PPL. The High Court had directed the Corporationto decide the fate of 13 floors beyond the 44[th] floor in the impugnedorder concerning which the decision has to be taken as orderedby the High Court to the Corporation. The fact remains thatresidential building, as well as the PPL, have been constructedas per sanctioned plan, and now a final decision has to be taken AB

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Aby the Corporation regarding 44 to 56 floors as ordered by theHigh Court. The High Court rightly held that construction wasnot illegal as the development permission was granted, the planwas sanctioned for PPL as well as for the residential building.[Para 44] [1020-D-F]

B1.4 It is apparent from Regulation 6(4) of DCR that thepurpose of the intimation to be given by licensed surveyor,engineer, structural engineer or supervisor or his architect inthe form of Appendix XVI to the Commissioner on completion ofwork up to plinth level is to enable the Commissioner to inspectto ensure that the work conforms to the sanctioned plans. It isCthe Commissioner’s satisfaction that work conforms to thesanctioned plans, not that of Architect of builder. It is for theCommissioner to satisfy himself, he has to inspect the work jointlywith the licensed technical person or Architect within 15 daysfrom the receipt of such notice, and thereupon he has to form anDopinion whether the work conforms to the sanctioned plans andthereupon he is required to give or refuse permission for furtherconstruction as per the sanctioned plans. It is also provided underRegulation 6(4) of DSR that if within the period of 15 days, thepermission is not refused, it shall be deemed to have been grantedEprovided the work is carried out according to the sanctionedplans. Thus, it is necessary to decide whether to give permissionor to refuse after inspection within 15 days of the notice. However,it is necessary for deemed permission to come into play; workof foundation up to the plinth level had been carried outaccording to the sanctioned plans. [Paras 52 and 53] [1024-F-H;F1025-B]

1.5 When Form XVI and the intimation submitted byappellant’s Architect on 7.5.2011 is compared, it becomes clearthat notice given is rightly addressed to the Executive Engineer.The subject mentioned is the development of PPL as per theGprovisions of Regulation 33(24). The requirement thatconstruction up to plinth/column up to the plinth level has beencompleted, in accordance with the approved plan, fulfils therequirement of the first part of the format Appendix XVImentioned before the word “date.” After the word “date”, theHrequirement in the prescribed format is that “the work has been completed under my supervision” and “in accordance with thesanctioned plan.” The latter portion, in accordance with thesanctioned plan, has been mentioned in so many words. The onlydifference is the format prescribes that the work has been done“under my supervision and in accordance with the sanctionedplan.”. It has been mentioned that “we have complied (sic –completed) work up to plinth as per approved plans.” Thearchitect, by the aforesaid expression, is owning that he hascompleted the work as per the approved plans. He ownsresponsibility upon himself that he has ‘complied with’ or‘completed the work’ up to the plinth level as per approved plans,which would obviously mean that it has been done under hissupervision. [Paras 56 and 57] [1027-B-F]

1.6 In the suit filed by the appellant in the plaint, it hasbeen stated that the plaintiff’s Architect has served notice on7.5.2011 under Regulation 6(4) of DCR. No reply or any rejectionwas received within 15 days from the corporation/defendants. Inwritten statement, the Corporation has nowhere denied that theyreceived the notice dated 7.5.2011, nor it is denied that therewas deemed permission, after the lapse of 15 days of notice underDCR 6(4). Thus, in the civil suit, for want of denial, no issue wasframed on the aspect of deemed permission. Apart from that, thewitness of the Corporation has admitted in the cross-examinationthat the letter issued by the plaintiff to the Corporation forobtaining further commencement certificate for the constructionof public parking building, was received by the Corporation andthat the Corporation did not reply to the said letter. It is not thecase anywhere set up by the Corporation that the constructionup to plinth was not as per the sanctioned plan. Thus, the deemedpermission has come in force under Regulation 6(4), on expiry of15 days from the service of notice dated 7.5.2011.[Paras 58 and 59] [1028-D; 1029-C]

1.7 It was also not the case set up by the Corporation thatthe notice dated 7.5.2011 was illegal, and it did not conform toForm XVI as prescribed under Regulation 6(4). The factum ofthe receipt of the notice has been admitted. The submission raisedin the PIL that notice dated 7.5.2011 is a doubtful document isbelied by the record of the Corporation and the admission madeby the witness of the Corporation. The notice dated 7.5.2011 was ABC

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Aavailable on the file of the Corporation, but it was not replied.The Division Bench of the High Court while deciding the PILcalled for the inward register to verify whether the Corporationreceived the notice. It is apparent that the Division Bench of theHigh Court has seen the inward register also and there is acorresponding entry on 7.5.2011 as regards the acceptance ofBnotice. It seems to have been made in the usual course. In thePIL no such plea was taken that the notice was not in Form XVI,and it was illegal. In First Appeal the Corporation did not challengethe finding of the civil court, nor did it raise the ground that owingto the failure to submit a notice in Form XVI, the letter datedC7.5.2011 cannot be treated as valid intimation and as such deemedpermission did not accrue. The main ground raised in PIL wasabout FSI, and concerning public car parking proposal. In thespecial leave petition preferred against the decision of the HighCourt in PIL, this ground was not raised, nor was it raised beforethe High Court in the PIL. Thus, it was not considered appropriateDby this Court to reopen the matter and reconsider it. Thus, allthe issues were left open. They were only those raised earlier inthe PIL by Janhit Manch. It is also pertinent to mention that incompliance of the order passed by the High Court on 13.5.2013,the Corporation has passed order on 12.9.2013, before filing theEFirst Appeal in the High Court, in which the Commissioner ofthe Corporation has clearly held that in view of notice dated7.5.2011 as per Regulation 6(4), the deemed permission cameinto effect on lapse of 15 days. [Paras 60, 61, 62 and 63] [1029-G-H; 1030-A-F-H; 1032-B-H; 1033-A-B]F1.8 The principle of constructive res judicata bars theCorporation and the petitioner in PIL to take somersault andtake a different stand in the subsequent litigation and all theavailable pleas, which could have been taken in previous civilsuit and PIL, ought to have been raised, otherwise raising of them in subsequent lis. It is not open to the parties to take aGdifferent stand at different stages. In the instant matter, thesequestions cannot be taken up by the petitioner in PIL and theCorporation has not come up in the appeal against the decisiondated 13.5.2013 of the High Court and has complied with theorder bypassing the order dated 12.9.2013. As against theHsubsequent decisions taken by the Corporation according to the

impugned judgment and order, Janhit Manch is before this Court.[Paras 64 and 65] [1033-C-F]

1.9 Thus the finding of the High Court concerning theillegality of the notice dated 7.5.2011 is not sustainable on merits.There was substantial compliance with Form, and the purpose ofgiving notice is only to enable the Commissioner to inspect andensure that the construction raised is as per the sanctioned plan.There is admission made by the witness of the Corporation thatthe entire construction is as per the sanctioned plan and sincethe Commissioner failed to inspect after notice, thus deemedpermission came into being; as such, it was open to the appellantto raise the construction of PPL up to 16[th] floor. There was noillegality in the same. [Para 66] [1033-G-H; 1034-A]

1.10 Absolutely wrong facts had been mentioned in theinventories, which are contradicted by the facts mentioned in thenotice for demolition and also by the minimum time required forconstruction of each floor. Thus, no reliance can be placed on theinventory dated 22.7.2011, and stop work notice dated 16.7.2011.[Para 70] [1036-D-E]

1.11 The present case reflects some severe kind of rivalryand distortion of facts. There was an attempt made to ensure thatthe building is delayed or is demolished by way of filing the PILone after the other, taking different grounds at different stages,many interventions have been filed. The Human Rights Federationhad also attempted to intervene in this Court. Though earlier, aPIL, which was filed by it on 9.5.2014, was dismissed as withdrawnon 7.11.2014 to approach an appropriate forum by way of filingappropriate application/representation. The said intervenor alsofiled an SLP before this Court challenging the impugned judgmentand orders dated 22, 25, 27.1.2016 passed by the High Court.This Court has rejected the prayer, dismissed the SLP filed bythe petitioner to avail of any other remedy. After that, theintervention application has been filed. The intervenor cannotenlarge the scope of PIL. Therefore, the intervention applicationfiled on behalf of the said Federation is rejected. [Para 71] [1036-H; 1037-A-C]

1.12 The provisions of Regulation 33(24) containing norestriction on the number of floors of PPL, came into force on A

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A20.10.2008. The development permission had been granted tothe appellant in the year 2010, when Regulation 33(24) of DCRwas in vogue. Development permission has been granted on18.6.2010 after 1 year 10 months and thereafter commencementcertificate had also been granted on 1.10.2010 with respect toPPL and notice under which deemed permission accrued underBDCR 6(4) had been served on 7.5.2011 by the Architect. Oncedeemed permission accrued to the appellant on lapse of 15 days,the construction had been completed in 2012 before theamendment was made in the Regulations in 2014. The order ofregularisation was not necessary because of deemed permission.CThus, the High Court has rightly held that the decision of theCorporation applying the Circular dated 22.6.2011 wasimpermissible as it did not have the force of law, and it stoodquashed by the High Court in other cases. It could not be saidthat the Circular of 2011 was supplementary to Regulation 33(24)of DCR. It was clearly in derogation to it and could not haveDprevailed over a statutory provision. [Paras 74 and 75] [1038-B-E]

1.13 The provisions of Section 337 do not restrict the ambitand scope of Regulation 6(5) of DCR. Initial permission had beenobtained for development, and during construction, furtherEvariation could have been made. The provision of Section 346 isof no help as, at no point in time, the development plan had beendisapproved. The question of modifying disapproval is notgermane. [Para 78] [1039-E-F]

Kohinoor CTNL Infrastructure Co, Pvt. Ltd. & Anr. v.FThe MCGM & Ors. (2013) 3 BCR 410; Suresh EstatesPvt. Ltd. & Ors. v. Municipal Corporation of GreaterMumbai & Ors. (2007) 14 SCC 439 : [2007] 13 SCR882 – referred to.

2.1 The determination of the refuge area was done by theGCFO, who is the competent and technical authority. The decisionof the CFO has been revisited by 3 successive Commissionersand has been confirmed while approving the sanctioned planmerely because some apprehension was raised about possiblemisuse of the refuge area. It is impermissible to revisit the saiddecision. Based on possible misuse, the planning permissionHcannot be questioned nor can be revoked. [Para 81] [1042-B-D]

Indore Municipal Corporation & Anr. v. Dr. Hemalata & Ors. (2010) 4 SCC 435 – relied on.

2.2 In the order that has been passed by the MunicipalCommissioner pursuant to the impugned judgment passed by theHigh Court, re-determining the refuge area, it has been reducedto 23% only. The CFO has considered the higher requirement ofbuilding and providing a separate refuge area for each of the flatthat is to say that four refuge areas on each floor, one attached toeach flat, has been approved by the CFO and the Corporation.The permission was granted way back in the year 2006 and theinspection note dated 11.11.2011 indicates that the constructionof the residential building had been carried out up to a height of180 meters i.e., 36[th] floor, the permission was granted in 2006and commencement certificate had also been issued from timeto time. The construction of the residential building had beenraised to the 36[th] floor in 2011, and Janhit Manch awakened firsttime to file PIL No. 43/2012 in the High Court. Thus, it was abelated petition. For fire safety, with respect to the refuge area,the view of the Fire Safety Officer has to prevail not ipse dixitwhether it would be appropriate to have more area or the lessercannot be said to be acceptable which appears to be a hang-over,the objection appears to be more the outcome of some grudgeharboured by unknown hands behind Janhit Manch.[Para 83] [1043-C-F]

2.3 The objections have been raised on behalf of JanhitManch concerning the height of service floor and elevationfeatures like flower beds, ornamental projection, servant toilets,and structural columns concerning which the Commissioner,Municipal Corporation had given in extensive details the reasonsfor the decision rendered by it. This Court is not an expert in thefield of determination of refuge area and therefore, whenCorporation and Chief Fire Officer had granted permission, itcannot be said that any tremendous public purpose is going to beserved by entertaining the belated objections which appear to bethe outcome of some business rivalry between warring groups.The order passed by the Municipal Commissioner dated31.8.2016 with respect to refuge area cannot be said to be illegalor arbitrary in any manner in the facts and circumstances of the A

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Acase, mainly due to the fact that permission had been granted bythe CFO as well as the corporation which has been questionedbelatedly. [Para 84] [1043-G-H; 1044-A-B]

T. Vijayalakshmi & Ors. v. Town Planning Member &Anr. (2006) 8 SCC 502 : [2006] 7 Suppl. SCR 534;BPune Municipal Corporation & Anr. v. Promoters &Builders Association & Anr.(2004) 10 SCC 796 :[2004] 2 Suppl. SCR 207 ; Godrej and BoyceManufacturing Co. Ltd. v. State of Maharashtra & Ors.(2009) 5 SCC 24 : [2009] 1 SCR 1016 – referred to.C3. There was deemed permission for PPL under Regulation6(4) as per notice of Architect dated 7.5.2011. Therefore, it cannotbe said that the order passed by the Additional MunicipalCommissioner dated 10.11.2016, deciding the show-cause noticedated 29.11.2011 and holding that the construction of the PPLDhad substantially progressed, and as such, the entire PPL can beregularised, is contrary to law. Moreover, it is not necessary togo into the question of whether the notice dated 29.11.2011survives or not for the decision, as it has been held that therewas deemed permission. Thus, there was no question ofEregularisation of the PPL.[Paras 85 and 86] [1044-F-H]

Muni Suvrat-Swami Jain S.M.P. Sangh v. ArunNathuram Gaikwad & Ors. (2006) 8 SCC 590 : [2006]7 Suppl. SCR 118 – referred to.

4. The order of the High Court is set aside in part and theFfinding recorded by the High Court that no deeming permissionaccrued under Regulation 6(4) of Development ControlRegulations, 1991 are also set aside. Deemed permissionaccrued, and concerning the determination of refuge area as perorder dated 31.8.2016 passed by the Municipal Commissioner,Gno interference is called for. Order dated 31.8.2016 passed bythe Municipal Commissioner regarding the refuge area is upheld.Petitions filed by Janhit Manch deserve dismissal. TheCorporation is directed to take over PPL and to proceed furtherdo decide concerning 13 floors, i.e. 44 to 56 floors of theHresidential building. [Paras 89 and 90] [1045-C-E]

SHREE RAM URBAN INFRASTRUCTURE LTD. & ANR. v.STATE OF MAHARASHTRA & ORS.

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CIVIL ORIGINAL/APPELLATE JURISDICTION : CivilAppeal Nos.8265-8266 of 2019.

From the Judgment and Order dated 22/25/27.01.2016 of the HighCourt of Judicature at Bombay in First Appeal No. 884 of 2015 and WritPetition No. 2223 of 2013.

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Civil Appeal Nos. 8267-8272 of 2019,

Transferred Case (Civil) No.271 of 2017 and Transferred Case(Civil) No.6 of 2018.

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Atmaram N.S. Nadkarni, ASG, R. P. Bhatt, Shekhar Naphade,Huzefa Ahmadi, C.U. Singh, Arvind Nayar, Neeraj Kishan Kaul, PinakiMishra, Sr. Advs., Mrs. Priti Purandare, S. Sukumaran, Anand Sukumar,Bhupesh Kumar Pathak, Ms. Meera Mathur, Ms. Garima Prashad, LalitKataria, R. N. Karanjawala, Ms. Ruby Singh Ahuja, Ms. Deepti Sarin,Shravan Sahny, Sanjeet Ranjan, Utkarsh Maria, Mrs. Manik KaranjawalaF(for M/s. Karanjawala & Co.), Ms. Anuradha Dutt, Ms. B. VijayalakshmiMenon, Ms. Fereshte D. Sethna, Ms. Ekta Kapil, Anirudh Bakhru,N. Nihal Rao, Nishant Ramakantrao Katneshwarkar, Devashish Bharuka,Kunal Verma, Ms. Sarvshree, C. S. Mishra, Sushil A., Mithum Shashank,Vikas Mehta, Bijoy Kumar Jain, Advs. for the appearing parties.

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The Judgment of the Court was delivered by ARUN MISHRA, J.

1. Shree Ram Urban Infrastructure Ltd. has filed the appealschallenging the judgment and order dated 22/25/27.1.2016 passed by theDivision Bench of the High Court of Bombay in W.P. [C] No.2223 of H

A2013 and First Appeal No.884/2015. Janhit Manch has also filed anappeal. Ithas also filed two Public Interest Litigations (PILs.) in theHigh Court, which have been transferred to this Court and registered asT.C. (C) No.271/2017 and T.C. [C] No. 6/2018, challenging the orderdated 31.8.2016 (in T.C.(C) No.271/2017) passed by the MunicipalCorporation of Greater Mumbai (MCGM), (for short ‘the Corporation’)Band order dated 10.11.2016 in (T.C. (C) No.6/2018) passed by theAdditional Municipal Commissioner and also order dated 30.1.2017 and14.3.2017 passed by the Corporation.

2. The matter relates to the building at Plot No. 5B+6, admeasuring28,409.50 sq.mt. Shree Ram Urban Infrastructure Ltd. applied for grantCof permission to construct and build on the said plots. The commencementcertificate was granted by Planning Authority on 24.2.2005, under theprovisions of the Maharashtra Regional and Town Planning Act, 1966(for short, “the MRTP Act”) read with Development Control Regulationsfor Greater Bombay, 1991 (for short “DCR”). The modification in theDbuilding plan was made on 8.2.2011 under which the Corporationapproved construction of a residential building for two basements, ground,entrance level, eight parking levels, amenity levels, service floor, andother areas plus 13[th] to 54[th] floors having a height of 294.84 meters.

3. After the issuance of commencement certificate dated E24.2.2005 amendment was made in the DCR by incorporating clause 24in Regulation 33, w.e.f. 20.10.2008. The amendment provided that withthe previous approval of the Government, the development of multi-storeyed parking lots abutting the roads to be permitted. On parkingarea being constructed and handed over to the Corporation, free of cost,FSI, as specified therein, shall be allowed on the land belonging to theFprivate owners, which is not reserved for any public purpose. ShreeRam Urban Infrastructure Ltd. (for short, ‘SRUIL’) applied for theconstruction of public parking lot (PPL). The plans were approved forthe construction of three basements, ground floor, and 15 upper floors.The commencement certificate was accordingly endorsed up to the plinthGlevel of the PPL, including three basements.

4. SRUIL has completed the construction of the main residentialbuilding of 56 floors. Though the Corporation had issued thecommencement certificate up to the 43[rd] floor, 13 upper floors up to 56have been constructed by SRUIL. The PPL has been constructed entirely.HThough the commencement certificate granted by the Corporation is up to the plinth level, including the basements, so far as commencementcertificate for the upper floors of the PPL is concerned, SRUIL hasrelied upon deemed permission.

5. On 7.5.2011, SRUIL wrote a letter to the Municipal Corporationfor seeking commencement certificate for construction above the plinthlevel of the PPL under Regulation 6(4) of the DCR. In clause 24 ofregulation 33, there was no upper limit for seeking incentive FSI.

6. The Corporation issued a circular on 22.6.2011, which restrictedPPL to two basements, ground, and four upper floors. The premiumwas also enhanced. A stop-work notice was issued on 16.7.2011 in respectof the construction by the Corporation under section 354 of the MumbaiMunicipal Corporation Act, 1888 (“MMC Act”). The said notice waswithdrawn on 11.11.2011.

7. On 29.11.2011, the Corporation issued a notice under section51 of the MRTP Act calling upon SRUIL to show cause as to why thecommencement certificate concerning PPL may not be revoked, thiswas followed by a notice under section 354A of the MMC Act callingupon SRUIL to stop the work of PPL beyond plinth level as there wasno commencement certificate issued above the plinth level. SRUIL fileda representation. After that, they filed Civil Suit No.2942 of 2011 in CityCivil Court at Mumbai, wherein the challenge was confined to the stop-work notice dated 14.12.2011. The interim injunction was grantedrestraining the Corporation from taking any action based on the saidnotice. The order remained operative till the disposal of the said suit.Under the deemed permission, upper floors above the plinth level of thePPL have been constructed by SRUIL.

8. On 16.5.2013, the city civil court decreed Civil Suit No.2942/2011 by holding that the stop-work notice dated 14.12.2011 was illegal.It was found by the civil court that further commencement certificate toconstruct the 15 floors above the plinth of the PPL shall be deemed tohave been granted in terms of Regulation 6(4) of DCR. Therefore, thestop-work notice was declared illegal against which the first appeal wasfiled. The same has been decided by the impugned judgment and orderpassed by the High Court at Mumbai.

9. PIL No. 43 of 2012 was filed by Janhit Manch, challenging theconstruction of PPL above the plinth level. There was also a challengeto the construction of the residential building. It was decided on 13.5.2013

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Aby the High Court. The directions were issued to Corporation to decideas to PPL given findings recorded. Special leave petition was filed in thisCourt by Janhit Manch, challenging the judgment and order mentionedabove.

10. In P.I.L. No.43 of 2012, a direction was issued to theBCorporation to pass an order on various aspects after hearing the parties.The Municipal Commissioner has passed an order dated 12.9.2013, whichwas impugned in the High Court by SRUIL and a prayer was made forquashing and setting aside the order dated 12.9.2013 passed by theCommissioner of the corporation. A prayer was also made for issuingmandamus enjoining upon the Corporation to take over possession ofCthe PPL consisting of basement, ground plus 15 upper floors and forthwithendorse the said commencement certificate for residential building up tothe full height of 56 floors. Unless incentive FSI in respect of the PPL ismade available, 13 upper floors of the main building would be illegal asthe FSI of PPL was to be used for the upper 13 floors.D11. In the writ petition, which was filed by the Janhit Manch, PILNo.43/2012, it was contended that permission granted to erect floorNos.44 to 56 of the residential building was dependent upon the availabilityof the incentive FSI on account of PPL. SRUIL illegally erected allfloors above the 43[rd] floor. Secondly, the construction of PPL consistingEof basements plus ground plus 15 floors was illegal as there was nocommencement certificate issued to proceed with the construction abovethe plinth level. Next, it was contended that the refuge area in theresidential building, which is free of FSI, is excessive, and such excessiverefuge area could not have been permitted, which constitutes to theextent of 72% of the total habitable built-up area of the residential building.FSRUIL were not entitled to FSI on account of the setback area of 705.45sq.m. as they had already received compensation for the said area. Thequestion as to the height of the habitable floors about the consumption ofFSI was also raised. Besides, it was contended that the passage at manorlevel and entrance, swimming pool, area over deck, and refuge area ofthe residential building ought to have been computed in the FSI of theGresidential building. The height of the service floor of the building is 8.40meters; the height above 4.5 meters could not have been granted free ofFSI. FSI relating to service floors, amenity floor, and FSI of duplex floorsought to have been counted. Besides, FSI about service toilets, structuralcolumns, toilets at the duplex level, and the floor bed ought to have beenHcounted.

12. The High Court in PIL No. 43 of 2012 held that constructionof PPL could not be held as illegal, SRUIL cannot be deprived of claimingincentive FSI for the residential building. Other aspects to be consideredby the Commissioner/Corporation at the time of issuance of an occupationcertificate. The FSI granted in respect of the refuge area is excessive,so the Commissioner was directed to re-examine the issue and re-workthe FSI accordingly and whether FSI could be claimed in lieu of thesetback area. The Commissioner was directed to reconsider FSI grantedat manor level, swimming pool, the area over deck and refuge area atentrance level, FSI concerning structural columns along with refuge area,etc. The decision of the Commissioner to permit the height of servicefloors at 8.40 meters was upheld. SRUIL to be heard before theCommissioner takes a final decision.

13. After that, parties were heard by the Municipal Commissioner,and an order was passed on 12.9.2013. The Commissioner has held thatPPL shall be as per the MCGM Circular dated 22.6.2011 and StateGovernment directives dated 19.3.2012 issued under section 37(1) ofthe MRTP Act, the Municipal Commissioner observed:

“(i) As regards the Public Parking Lot (PPL), it shall be asper the MCGM Circular dated 22.06.2011 and as perState Govt. directives dated 19.03.2012 issued undersection 37(1) of MRTP Act, which is in accordance withthe law. Hence, MCGM will accept PPL comprisingof 3 basements + Ground + 4 upper floors, which onlywill be eligible for grant of incentive FSI towards theconstruction of PPL, on payment of requisite premiumas per policy.

(ii) Refuge areas shall be provided free of FSI only to theextent of 4% of the built-up area it serves. Refugeareas in excess of the aforesaid requirements shall becounted in FSI in accordance with clause 4.12.3 ofNational Building Code.

(iii) There is no provision in the DCR for the exclusion ofthe structural columns from FSI computations. Hence,the structural columns need to be counted in FSI.

(iv) As regards the set back area admeasuring 705.45 sq.mt.,FSI advantage in lieu of handing over of the same cannot A

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be granted at this stage, in absence of conclusivedocumentary evidence.

(v) The passages at manor level and entrances, swimmingpool, area over deck, and refuge area at the entrancelevel, which were earlier permitted free of FSI, shall becounted in FSI in accordance with law.

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(vi) The request of SRUIL to pay the security deposit underDCR 5(3)(xi) and to levy the premium as per section22(m) of MRTP Act, 1966, is rejected.

(vii) Since there are many interlinked revised FSIcomputations as aforesaid, the Project Proponent(SRUIL) is directed to submit modified plans inaccordance with the regulations.”

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14. The High Court in the impugned judgment and order hasDquashed and set aside the judgment and decree passed by the civil courton 16.5.2013, and the suit has been dismissed. In the writ petition, theorder of the Commissioner dated 12.9.2013 as far as clauses (v), (vi)and (vii) of the directions are concerned, has been confirmed. Thedirection contained in clause (ii) has been set aside. The direction inclause (iii) of the Commissioner’s order dated 12.9.2013 has been setEaside. The Commissioner has been directed to consider, exclusion ofstructural columns from the computation of FSI and the issue of refugearea. Clause (iv) of the Commissioner’s order has been set aside, holdingthat there was no reason to disturb the grant of FSI of the set-back areaadmeasuring 705.45 sq.m. Clause (i) of the Commissioner’s order datedF12.9.2013 has become inoperative because of the findings recorded bythe High Court while deciding the first appeal. The Corporation hasbeen directed to hear the parties and to decide as to the reasonablerefuge area considering various factors in light of the observations andthe discussion made in the judgment and order. The Commissioner wasdirected to pass the order within four months.

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15. The High Court held that the construction of the PPL abovethe plinth level and the construction of the floors above the 43[rd] floor ofthe main building is illegal as the same has been constructed withoutobtaining the commencement certificate(s). SRUIL may apply forregularisation of the construction made of the PPL above the plinth andHthe construction of the upper floors of the main building. A fresh proposal for grant of commencement certificate and the development permissionshall be submitted. In case no regularisation is made by the Corporation,steps shall be taken for demolition after the expiry of the period of 8months. SRUIL to submit a modified plan to the Commissioner ofCorporation while applying for regularisation. After an appropriate orderis passed, SRUIL to apply for a grant of occupation certificate in respectof the residential building up to the 43[rd] floor.

16. According to the direction issued by the High Court, theCommissioner on 31.8.2016 concerning refuge area has passed thefollowing order:

“ORDER

“(1) The area provided on the external peripheral face of the flat,which are marked hatched on the accompanying plan, shall beallowed as refuge area. This order should be mentioned in allSale Deeds and/or in Supplementary Sale Deeds to ensure that itis not sold as a habitable area. Further, the building wouldprominently display the access route to these refuge areas. Theserefuge areas will be kept open and accessible to all Occupants ofthe Building at all times.

(2) The refuge areas at the inside of the building at the entranceof flats shall not be considered as refuge areas.

(3) The four full floors shown as refuge will not be taken as refuge.

(4) The structural columns falling in the refuge areas stated inPoint (1) above can be allowed free of FSI. Areas of remainingstructural columns shall be counted in FSI.

(Ajoy Mehta)

Date : 31 August, 2016

Municipal Commissioner”

17. The Corporation has also passed order dated 10.11.2016 inwhich it has held that under section 51 of the MRTP Act, the PlanningAuthority can revoke or modify the permission provided that theconstruction of PPL has not sufficiently progressed or completed. InPPL, the total construction cost incurred is about Rs.165 crores, out ofwhich Rs.70.28 crores were incurred on the construction of PPL up to A

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Aplinth. The construction has proceeded substantially as on the date ofthe notice under section 51. There was no stay to the interim orderdated 24.12.2011 of the city civil Court. A subsequent Circular andNotification cannot be given retrospective effect, and the prevailingregulations on the date of the approval have to be considered. The decisionin Kohinoor CTNL Infrastructure Co, Pvt. Ltd. & Anr. v. The MCGMB& Ors. reported in (2013) 3 BCR 410 has been referred to by theAdditional Municipal Corporation Commissioner, and it has been heldthat construction of public parking lot carried out on the spot underreference constituted sufficient progress. Bypassing the order dated30.1.2017, notice under section 51 of the MRTP Act was ordered to beCwithdrawn. The premium was directed to be levied as per modified DCR33(24).18. In T.C. No.6/2018 filed by Janhit Manch, the order dated10.11.2016 has been questioned.

19. SRUIL submits that the Government of Maharashtra hasDgranted in-principle approval for multi-storey parking lot to SRUIL atMumbai on 20.8.2010 comprising 3 basements plus stilt on ground plus15 upper floors, accommodating 900 car parking spaces with sufficientcar lifts and passenger lifts. The construction was completed in September2012 on the privately-owned land of the petitioners. The total built-upEarea of the PPL is 62,005.91 sq.m. and has spent about Rs.165 croresfor construction of PPL, apart from the value of the land. The PPL is tobe handed over free of cost to the Corporation to be used by the generalpublic. It is lying completed but unused since 2012, which is against thepublic interest. Thus, the cause espoused by Janhit Manch is not in theinterest of the public.F

20. Mr. C.U. Singh, learned senior counsel appearing on behalf ofSRUIL, further submitted that the civil suit, which questioned the noticeunder section 354A of the MMC Act, was decreed by the civil courtholding that there was deemed grant of further commencement certificatein accordance with DCR 6(4) as the application submitted by the ArchitectGon 7.5.2011 for further commencement certificate beyond plinth levelwas not refused by the Corporation as such the civil court held thatconstruction is with permission and in accordance with the sanctionedplan and there is no deviation from it. The view taken earlier by theCorporation in order dated 12.9.2013 was that the construction of PPL,H3 basements and plinth and 15 upper floors were legal and valid being based upon the deemed commencement certificate under DCR 6(4),nevertheless, it was observed that the construction of PPL above the 4[th]upper floor was not legal as it was contrary to Government circulardated 22.6.2011.

21. SRUIL submits that in W.P. [C] No.2223 of 2013 filed byJanhit Manch, the challenge was limited to incentive FSI arising out ofthe PPL above the fourth floor. The High Court in the impugned judgmenthas held that the findings of the Commissioner based on Circular dated22.6.2011 cannot be sustained, as the Circular, as well as the consequentialdirectives, had been struck down by the High Court in several cases. Itwas also the stand taken by the Corporation in various matters thatCircular dated 22.6.2011, and the directives would not be enforcedbecause of statutory regulation, which has to prevail. The facts mentionedabove have not been disputed before us and that the Circular dated22.6.2011 has been struck down by the High Court.

22. SRUIL submits that the Corporation had filed the first appealin the High Court belatedly for challenging the civil court’s judgment anddecree. The High Court has erroneously held that the application dated7.5.2011 made by the architect for further commencement certificatewas not in the prescribed form since it is not stated that the work hasbeen completed “under my supervision” instead, the architect hasmentioned, “we have completed the work.”

23. It is further urged that permission under DCR was a centralissue in the civil suit filed by SRUIL against the Corporation. TheCorporation in the first appeal did not challenge the finding of the CityCivil Court nor pleaded in a written statement that there was a failure toapply prescribed form Appendix XVI, and as such, there was no deemedpermission. It was not the Corporation’s case that the letter received on7.5.2011 was not in the prescribed form as per Appendix XVI and northat deemed permission was unavailable for this reason. No issue wasframed, and no evidence was adduced as to the invalidity of the letterdated 7.5.2011, and that deemed permission did not accrue. On thecontrary, the Corporation’s witness admitted receipt of the letter dated7.5.2011 and its failure to reply to the same. Thus, the findings recordedby the High Court about the irregular construction of 1 to 15 floors of thePPL are neither proper nor sustainable.

24. It is further submitted that the finding recorded in the impugnedjudgment that the commencement certificate is valid for 4 years in A

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Aaggregate and that the commencement certificate was lastly endorsedon 18.11.2011, and therefore, it has lapsed, is contrary to Regulation 5(6)and section 48 of the MRTP Act. Regulation 5(6) stipulates that theconstruction up to the plinth level has to commence within 4 years. Incase it is not commenced, then only the commencement certificate lapsesand new development permission has to be obtained. Thirdly, the mandateBunder section 48 of the MRTP Act is that the new permission would berequired if the construction work up to plinth is not completed within 4years. Admittedly, in the present case, the construction of the PPL wascomplete in the year 2012 itself. Hence, there was no requirement fornew development permission. The finding of the High Court is belied byCsection 51of the MRTP Act, which protects the landowner against anyrevocation or modification in the building permissions or the plans oncethe construction has substantially progressed.

25. It is submitted that PIL No. 43 of 2012 was filed belatedly byJanhit Manch on 1.3.2012 after three basements, and 9-10 upper floorsDof a PPL were already constructed and by that date, India’s tallestresidential building had already been constructed up to 56 floors. Thestage mentioned above of construction was admitted to in the PIL. Thereis an unexplained delay amounting to laches by Janhit Manch; on thisground alone, the appeal and the Transfer Cases deserve dismissal.

E26. It is further submitted on behalf of SRUIL that it was neitherpleaded nor argued by Janhit Manch in the PIL that the letter dated7.5.2011 submitted by the Architect of SRUIL to the Corporation wasnot in the prescribed form, i.e. Appendix XVI, nor that the permission bydeeming fiction under DCR 6(4) did not accrue for the said defect. InSLP [C] No.20279/2013 only those contentions which were raised thereinFwere left open by this Court as no such contentions/grounds were raisedin the previous special leave petition, as such the contentions which werenot raised in the special leave petition are not open to being agitated nowat a subsequent stage. The High Court also had kept open only thosegrounds that were raised and left to be decided by Corporation.GSubmission of Janhit Manch that construction of PPL above plinth levelis illegal as the same was carried out during the stop-work notice dated16.7.2011, is erroneous. The said notice did not relate to PPL as hasbeen made clear by the Corporation in their affidavit dated 4.5.2012.

27. Alternatively, it is urged on behalf of SRUIL that the groundHraised by Janhit Manch that the High Court could not have issued the direction for regularisation deserves to be rejected in the light of thisCourt’s decision in Muni Suvrat-Swami Jain S.M.P. Sangh v. ArunNathuram Gaikwad & Ors. (2006) 8 SCC 590. The challenge by JanhitManch that regularisation ought to be rejected and could not have beenordered by the High Court is contrary to the decision in Muni Suvrat(supra). It is for the Corporation to take a decision, and Janhit Manchhas not questioned the vires of the statutory provisions which allowregularisation. Thus, the ground raised by Janhit Manch ought to besummarily rejected. The construction of 15 upper floors of the PPLcannot be said to be illegal. Even otherwise, in the absence of endorsementon the commencement certificate is a procedural irregularity, and thesame can be regularised under section 53(3) read with section 44 of theMRTP Act, as the construction falls in the categories as specified insection 52. The Municipal Corporation has itself issued Circulars in theexercise of its powers under the provisions of section 53 read with section44 of the MRTP Act on 4.2.2011, which prescribes various modes ofregularisation.

28. It is further submitted in the alternative that in case deemedcommencement certificate for further construction beyond plinth isincorrect, and that there was no deemed commencement permission forconstruction above the plinth. The Commissioner has directedregularisation of 15 upper floors of PPL in terms of the order of the HighCourt upon payment of Rs.44,80,15,781 as a penalty for building beyondthe plinth and Rs.117,81,10,640 as premium under the amended DCRNo.33(24) which came into force in 2014.

29. SRUIL also submitted that the challenge raised by Janhit Manchto the order of regularisation on the ground of DCR 33(24) as amendedin 2014, to the effect that only two basements plus ground plus 4 floorscan be regularised on payment of premium as on the date on whichorder is passed. It is contrary to the settled position of law that theexisting provisions as on the date of permission and construction wouldbe applicable and not the subsequently amended law, as observed inSuresh Estates Pvt. Ltd. & Ors. v. Municipal Corporation of GreaterMumbai & Ors. (2007) 14 SCC 439, and T. Vijayalakshmi & Ors. v.Town Planning Member & Anr. (2006) 8 SCC 502. It is submitted thatthe High Court’s finding on lack of deemed permission for PPL deservesto be set aside, and alternatively, the Corporation be directed to acceptthe PPL upon payment by the petitioner of the amount on receiving theamounts of premium and penalty. The application of the petitioner for A

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Athe regularisation of Floors 44 to 56 may be directed to be consideredand decided on its own merits by the Corporation.

30. It is further submitted concerning Floors 44 to 56 of theresidential building that the construction has been raised following thesanctioned plans. It is nobody’s case that the construction of theBresidential building is in violation or the deviation of the sanctioned plans.The plans have been approved and amended from time to time. Lastsuch amendment being on 8.2.2011 for the entire 56 floors of the building.The commencement certificate was lastly endorsed up to the 43[rd] floorfor the height of 238.50 meters on 18.11.2011. Floors 44 to 56, as per thelast sanction plan, are approved utilising 12344.63 sq. mts. of additionalC31002.5 square mts. of incentive FSI of the PPL. The commencementcertificate for the said floors was to be endorsed on handing over thePPL to the Corporation, which releases an additional 31,002.51 sq. mts.of incentive FSI. The non-endorsement of commencement certificatefrom 44 to 56 floors is merely an irregularity and not a breach ofDevelopment Control Regulation or statute.D

31. Concerning the refuge areas for floor safety, it is submittedthat Janhit Manch seeks to challenge the exclusion of certain refugeareas from the calculation of FSI. The rules provide for refuge areas.There is no challenge to DCR 2(13), 2(42), 35, 37, 43, and 44, especiallyDCR 44(7). Fire escape in multi-storeyed buildings is necessary, and theEChief Fire Officer has to approve the plans. The refuge area, asrecommended by the CFO in his report and as sanctioned by theCorporation, cannot be said to be excessive and contrary to DCRRegulations.

32. Regarding section 51 of the MRTP Act, it is submitted thatFonce the Planning Authority has sanctioned the plans, the power to modifyor revoke is under section 51, which can be exercised only in case of thecontingencies provided in the provisions of the said section.

33. SRUIL lastly submits that Janhit Manch has no right tochallenge the judgment. They were aware of the civil suit and interimGorder granted therein. They have filed the order in PIL No. 43/2012.Janhit Manch has filed IA No.2/2013 and has withdrawn it. After that,they sought impleadment in W.P. No. 2223/2013 in the High Court andafter that, again withdrew the Chamber Summons. In the circumstances,Janhit Manch should not be permitted to approbate and reprobate, andthe petition filed by it be dismissed as well as the Transfer Cases. TheHpetition is not filed to subserve any public interest.

34. Mr. Ahmadi, learned senior counsel appearing on behalf ofJanhit Manch has submitted that the development permission issued undersection 45 of the MRTP Act is valid for a maximum period of 4 years inaggregate and lapses under section 48 upon expiry of the said period.He has further submitted that the additional amended plans of SRUILdated 8.2.2011 are illegal and contrary to DCR 33(24) as the incentiveFSI did not accrue without handing over of the PPL. The constructionof PPL beyond the plinth area was illegal, as the deemed permissionunder DCR 6(4) did not accrue in favour of SRUIL. The construction ofthe PPL was done in violation of the stop-work notice issued by theCorporation. The Corporation rightly limited the construction of the PPLto ground plus 4 upper floors and two basements in terms of Circular.The sanction of the PPL building by way of an endorsement of thecommencement certificate of the residential building is wholly illegal.The order dated 31.8.2016 passed by the Municipal Commissionerregarding the refuge area is illegal, being contrary to the judgment of theHigh Court and provisions of NBC. The order of the Additional MunicipalCommissioner dated 10.11.2016 purportedly adjudicating the notice undersection 51 of the Act is also illegal. Janhit Manch has filed a writ applicationand the Transfer Cases in the public interest and has also attracted theattention of this Court to the inconsistent stand taken by the Corporationat various stages.

35. Shri A.N.S. Nadkarni learned Additional Solicitor General,submitted on behalf of the Corporation that pursuant to the order passedby the High Court, the Commissioner has already passed an ordercompounding the PPL and construction of PPL is in the public interestas 900 cars can be parked in the same. It has been constructed byspending a massive amount of Rs.165 crores; in addition, fine and penaltyhave been imposed by the corporation, which is a substantial one, amountof which is also going to be used for a public purpose. Thus no case forinterference is made out. Due to the order passed by the Commissionerimposing fine and penalty, the matter is given a quietus, and no publicinterest is going to be served by entertaining the petitions filed by JanhitManch.

In re. : development permission issued under section 45of the MRTP Act :

36. First, we take up a question for consideration whether thepermission for development issued under section 45 has lapsed? It issubmitted on behalf of Janhit Manch that permission granted under section A

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A45 of the MRTP Act is valid for a maximum period of 4 years in aggregateand lapses under section 48 of the Act on expiry of the said period. It issubmitted that intimation of disapproval (IOD) under section 346 of theMMC Act was given to SRUIL in respect of a proposed commercialbuilding. It was necessary to obtain a commencement certificate as perthe conditions of IOD couched in negative form. On 24.2.2005 firstBcommencement certificate was issued. As per condition Nos. 5 and 9 ofthe commencement certificate, it is renewable every year and can beextended for 3 years. After that, fresh permission under section 44 ofthe MRTP Act has to be obtained. The commencement certificate wasextended up to the 43[rd] floor on 8.2.2011. The commencement certificatewas endorsed on 12.9.2006. Earlier commencement certificate was forCdifferent plans of commercial building and lapsed on 23.2.2006. Thus,the plans dated 12.7.2005 could not have been approved as themodification was substantial; hence, a fresh IOD and commencementcertificate was required as per Regulation 6(5) of DCR 1991. On24.1.2008, a commencement certificate was endorsed concerning aDresidential building as per the amended, approved plan dated 7.11.2007.Earlier commencement certificate was for a different plan which lapsedon 11.9.2007. The plan of 7.11.2007 could not have been approved asthe modification was substantial, which involved basements. Thecommencement certificate concerning the residential building lapsed on9.7.2010. It was endorsed on 11.8.2009 up to 34 floors. On 1.10.2010,Ethe commencement certificate concerning PPL was endorsed up to theplinth level only. On 18.11.2011, it was extended from time to timeconcerning the residential building. It is also submitted that under section48 of the MRTP Act, commencement certificate shall remain in forcefor one year from the date of receipt of such grant, failing which it willFlapse. The endorsement made concerning the residential building wasinvalid. The endorsement on the commencement certificate dated24.1.2008 was also illegal.

37. Learned senior counsel further submitted that under section44 of the MRTP Act, application for permission for development has toGbe filed. It can be granted or refused under section 45. In case it isgranted, it shall be contained in the commencement certificate in theprescribed form. Section 48 has been relied upon, which provides thatevery permission shall be valid for 1 year and renewable for the next 3years. The MRTP Act has been amended by Maharashtra Act 17 of2007 amended section 48 by substituting the second proviso. It is providedHthat if the development is not completed up to the plinth level within 1

year or the extended period, it shall be necessary for the applicant tomake an application for new permission, the second proviso cannot beinterpreted to nullify the effect of the main provision. Thus, developmentpermission lapses upon expiry of the aggregate period of four years.Regulation 5(6) of DCR 1991 has also been relied upon by Janhit Manch.Similar was the condition mentioned in the commencement certificatedated 24.2.2005.

38. On the other hand, on behalf of SRUIL, it is submitted that thefinding of the High Court that commencement certificate is valid for 4years in aggregate, is contrary to Regulation 5(6) of DCR 1991 andsection 48 of the MRTP Act, as amended. In case construction work upto the plinth level is not completed within 4 years, it is necessary toobtain fresh permission and not otherwise.

39. Regulation 5 contains the procedure for obtainingcommencement certificate, Regulation 5(6) provides as tocommencement of work. Regulation 5(6) is extracted hereunder:

“5. Procedure for obtaining Development Permission andCommencement Certificate:-

(6) Commencement of work:— A commencement certificate/development permission shall remain valid for four years in theaggregate but shall have to be renewed before the expiry of oneyear from the date of its issue. The application for renewal shallbe made before expiry of one year if the work has not alreadycommenced. Such renewal can be done for three consecutiveterms of one year each, after which proposals shall have to besubmitted to obtain development permission afresh.

For the purpose of this Regulation, ‘Commencement’ shall meanas under:–

(a) For a building work including Up to plinth level additions and alterations:-(b)or bridges and overhead Foundation and construction work up to the base tanks; floor (c) For underground works: Foundation and construction work up to floor of underground floor (d)For lay-out, subdivision, and Final demarcation and provisions of infrastructure amalgamation proposals: and services up to the following stages — (i) Roads: Water bound macadam complete. (ii) Sewerage, drainage, and water supply excavation and base concreting complete.”

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A 40. Section 48 of the MRTP Act, as amended in 2007, is relevant.Same is extracted hereunder:

“48. Every permission for development granted or deemed to begranted under section 45 or granted under section 47 shall remainin force for a period of one year from the date of receipt of suchgrant, and thereafter it shall lapse :

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Provided that, the Planning Authority may, on application made toit extend such period from year to year; but such extended periodshall in no case exceed three years:

Provided further that, if the development is not completed up toplinth level or where there is no plinth, up to upper level of basementor stilt, as the case may be, within the period of one year orextended period, under the first proviso, it shall be necessary for”the applicant to make application for fresh permission.

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It is provided in section 48 that permission for development ordeemed permission shall remain in force for a period of 1 year from thedate of receipt of such grant, and thereafter it shall lapse. It can beextended from year to year, but such extended period shall in no caseEexceed three years. The second proviso as inserted by way of amendmentin 2007 provides that if the development is not completed up to plinthlevel or where there is no plinth, up to the upper level of basement orstilt, as the case may be, within the period of 1 year or extended period,under the first proviso, it shall be necessary for the applicant to makeapplication for fresh permission. Thus, it is apparent from the secondFproviso that in case construction has not been made up to plinth level orwhere there is no plinth, up to the upper level of the basement or stilt,within one year or the extended period, it is necessary to make anapplication for new permission. Since the main section 48 does not dealwith the situation where construction has been made up to plinth level orwhere there is no plinth, up to the upper level of basement or stilt, as theGcase may be, and neither first proviso deals with the situation above.The interpretation of the second proviso is clear that in case constructionhas been made up to the plinth level or where there is no plinth, up to theupper level of the basement or stilt, within 4 years, it shall not be necessaryfor the applicant to make application for fresh permission for developmentHin the light of the second proviso to section 48.

41. Regulation 5(6) deals with the commencement of the work. Itdoes not deal with the situation mentioned in the second proviso to section48 of the Act. Regulation 5(6) provides that on expiry of one year if thework has not already commenced and such renewal can be done forthree consecutive terms of one year each. The Regulation has to beinterpreted in tune with the provisions contained in section 48, as amended.It cannot curtail the ken of section 48. Thus we hold that in caseconstruction has been done up to the plinth level within four years fromthe date of development permission, it would not be necessary to obtainit afresh. The finding of the High Court, to the contrary, is set aside.

In re: additional amended plans of SRUIL up to 56 floors:

42. It is submitted on behalf of Janhit Manch that additionalamended plans submitted by SRUIL up to the 56[th] floor are illegal andcontrary to DCR 33(24). DCR 33(24) was introduced vide a Notificationby which a car parking scheme was brought into effect from 2008thereunder for a public parking lot (PPL) constructed on a plot of landand handed over free of cost to the corporation. A plot owner/developerwas entitled to receive incentive FSI, inter alia to the extent of 50% ofthe area of the PPL handed over by him, to be used on the said plotitself. DCR 33(24) allowed unrestricted construction of PPLs of unlimitedfloors without having any logical or scientific basis for their need in specificareas and/or localities. The provision was subjected to misuse. On18.6.2010, the proposal for the construction of PPL received the approvalof the Urban Development Department of the Government ofMaharashtra in respect of the PPL proposed by SRUIL. Condition Nos.2,5, and 8 of the said approval made it clear that the additional FSI in lieuof development of PPLs shall be granted after parking is created andhanded over to the corporation free of cost. The Corporation has nottaken over the PPL so far; as such, there is no additional FSI available toSRUIL. The IOD could not have been granted beyond the 44[th] floor upto 56 floors. Thus, the sanction granted to SRUIL for construction of aPalais Royale having 56 floors was void ab initio.

43. It is further submitted that as per condition Nos.13, 18 and 24,it is after conditions under DCR 33(24) are complied with, and actualhanding over of the PPL, commencement certificate for the additionalFSI shall be granted and not before that. On 20.8.2010, the Corporationissued a letter approving the amended plan for the PPL proposing 3basements plus lower ground plus stilt plus 15 floors. On 1.10.2010, AB

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Acommencement certificate for the PPL was granted up to the plinthlevel, only including the basement. On 8.2.2011, the plans for the residentialPalais Royale building were sanctioned up to 56 floors for a total FSI of54,715.19 sq. meters. It is submitted that the sanction was illegal. Onrealizing the disastrous consequences of DCR 33(24), a circular wasissued on 22.6.2011, directing that all proposals of PPL may be consideredBsubject to the height of PPL being limited to ground plus four upperfloors and two basements. SRUIL did not challenge circular in the court.The State Government proposed the modification of DCR 33(24) on19.3.2012. On 14.9.2012, SRUIL requested the Corporation to take overthe PPL. The State Government issued a notification amending DCRC33(24) on 6.8.2014 by inter alia limiting PPL as provided in said Circular,i.e., three basements plus ground plus four upper floors.

44. It is apparent that in principle the approval had been grantedto raise the PPL. On 18.6.2010 at that time, DCR 33(24), there was norestriction on the floors of PPL that came to be introduced in 2014 beforeDthat the completion of PPL has taken place. The PPL has been validlyconstructed under deemed permission. Additional FSI would be availableas soon as the Corporation takes over the PPL. The High Court hasdirected the Corporation to decide the fate of 13 floors beyond the 44[th]floor in the impugned order concerning which the decision has to betaken as ordered by the High Court to the Corporation. FSI no doubtEwould be available once possession of PPL is handed over. The factremains that residential building, as well as the PPL, have beenconstructed as per sanctioned plan, and now a final decision has to betaken by the Corporation regarding 44 to 56 floors as ordered by theHigh Court. We find ourselves in unison with the decision of the HighFCourt that construction was not illegal as the development permissionwas granted, the plan was sanctioned for PPL as well as for the residentialbuilding. Thus, we find no force in the submission raised by Mr. Ahmadi.However, the Corporation to take a decision concerning 13 floors of theresidential building as ordered by the High Court within 1 month.

GIn Re: deemed permission under Regulation 6(4) of DCR1991:

45. SRUIL submits as to PPL that on the basis of application forinspection submitted on 7.5.2011 by the Architect who was looking afterthe project under Regulation 6(4), intimation was given for inspectionHunder DCR 6(4) and there was no inspection made by the Commissioner jointly with the licensed technical personnel or Architect within 15 daysfrom the date of receipt of the notice. It was incumbent upon theCommissioner either to refuse or to give permission for furtherconstruction as per the sanctioned plan in the form in Appendix XVI. Asthe permission had not been declined, the permission shall be deemed tohave been given. It is submitted on behalf of SRUIL that though theapplication for inspection was not given in the prescribed format,nonetheless, the same fulfilled the requisites as provided in the prescribedform XVI. It is submitted that the Government of Maharashtra grantedin-principle approval for construction of multi-storeyed parking lot toSRUIL on its land at Worli, Mumbai on 18.6.2010. The need for PPLhad been examined. All the approvals, as contemplated by DCR 33(24),starting with the Government approval, were in place before commencingthe construction of PPL. The total built-up area of the public parking lotis 62,005.91 sq.mtrs. It is submitted that in the construction of PPL,Rs.165 crores has been spent apart from the value of the land. The PPLis to be handed over free of cost to the Corporation. In the civil suit, itwas held that there was deemed permission under DCR 6(4). Thejudgment of the High Court dated 13.5.2013 in PIL No.43/2012 and thedecree of the city civil court in Suit No.2942 of 2013 was at that stage,accepted by the Corporation and the Municipal Commissioner proceededin September 2013 to determine the issues which were to be decided byhim as per the decision of the High Court dated 13.5.2013.

46. It was held by the Commissioner that though the constructionabove the plinth level was legal and valid, the construction of the PPLabove the 4[th] floor, i.e., floors 5 to 15 was against the Government circulardated 22.6.2011 by which restrictions have been imposed in the city ofMumbai to a maximum of 4 upper floors. In W.P. [C] No.2223/2013, thechallenge was limited to the incentive FSI arising out of the PPL abovethe fourth floor. In the writ petition filed by SRUIL, the challenge waslimited to incentive FSI arising out of PPL above the fourth floor, whichthe Commissioner held will not be granted as it was not in accordancewith the Circular dated 22.6.2011.

47. The High Court in the impugned judgment has held that Circulardated 22.6.2011 has been struck down by the High Court in severalcases. In the High Court, in many cases, the Corporation has taken thestand that Circular dated 22.6.2011 and consequential directives wouldnot be enforced in view of statutory provisions of DCR 33(24).

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A48. It is also submitted on behalf of SRUIL that after passing theorder dated 12.9.2013 in which it was held that there was deemedpermission, the Corporation belatedly filed First Appeal No.884 of 2015on 20.11.2013 to challenge the City Civil Court’s judgment and decree.Filing of the belated appeal after accepting the verdict of the trial courtand that of the High Court and in view of the order dated 12.9.2013, itBwas not open to the Corporation to file the appeal. It is further submittedon behalf of SRUIL that the High Court has erroneously held that theapplication dated 7.5.2011 filed by the Architect for furthercommencement certificate above plinth level was not in the prescribedformat as it does not state “under my supervision” instead, the ArchitectCsays “we have completed the work.”

49. It is further submitted on behalf of SRUIL that it was not theCorporation’s case in the written statement filed in the civil suit that theletter received on 7.5.2011 was not in the prescribed format, nor it wassubmitted that deemed permission did not accrue for the aforesaid reason.DAs such, no issue was framed on the aforesaid aspect. No evidencewas adduced. At a subsequent stage, the plea could not have been raisedby the Corporation. The witness examined on behalf of the Corporationadmitted the receipt of the letter dated 7.5.2011 and failure to send thereply that without raising the issue before the civil court, it was orallyEargued at the time of final argument which was rejected by the civilcourt. However, the Corporation in First Appeal No. 884/2015 did notchallenge the said finding of the city civil court. It was not the case suchset up that failure to follow the Appendix XVI format vitiated the deemedpermission. Thus, deemed permission accrued under DCR 6(4).F50. SRUIL further submits that Janhit Manch filed PIL on 1.3.2012

F50. SRUIL further submits that Janhit Manch filed PIL on 1.3.2012after 3 basement levels, and 9-10 upper floors of a public parking lot hadbeen constructed. There was a delay in filing the PIL as constructionhas substantially progressed. On this ground, the special leave petitionof Janhit Manch and Transfer cases are liable to be dismissed. In PILNo. 43/2012, it was not the case set up by Janhit Manch that the letterGdated 7.5.2011 was not in prescribed format Appendix XVI nor that thedeeming fiction under DCR 6(4) was not available. The High Court inthe previous round had rejected all the submissions which were raisedtherein vide judgment and order dated 13.5.2013 in paragraph 28(m) to(o). It is further submitted that in SLP [C] No.20279/2013, Janhit ManchHchallenged only those findings of the High Court, which were against it, and they did not raise any plea beyond what was argued and decided inPIL. It was not the case set up in the special leave petition that the letterreceived by the Corporation on 7.5.2011 was not in the prescribed form.This Court closed the special leave petition on 15.1.2018 with the disposalof IA No.6. The contentions raised therein were left open as no suchground was ever raised in the said petition. Hence, the same cannot beraised now in the instant matter, which was not left open and taken inthe previous round. The stop-work notice dated 16.7.2011 did not relateto PPL. The Corporation expressly asserts this fact in their affidavitdated 4.5.2012.

51. On the other hand, it was submitted on behalf of Janhit Manchthat Regulation 6(4) mandates that an application should be filed in theprescribed form Appendix XVI. The form contains a mandatoryrequirement of the statement of the Architect that the work up to theplinth has been done under his supervision. The same is not an emptyformality as the statement to that effect binds the Architect in respect ofany defect or calamity, which may occur in the future. Letter dated7.5.2011 did not fulfil the aforesaid mandatory requirement. It is alsosubmitted that the letter was undated. The provision is mandatory. JanhitManch further submits that stop-work notice was issued to SRUIL forthe entire plot. An inventory was prepared on 22.7.2011, which recordsthat “The work of PPL tower is in progress up to plinth which is as percommencement certificate granted.” Therefore, the construction of theplinth was not complete even on 22.7.2011. The sine qua non for makingan application under Rule 6(4) is that the work up to the plinth must becompleted. Because of inventory dated 22.7.2011, it was submitted thatthe plinth was not completed up to that date. As such, no legal fiction iscreated under DCR 6(4). For deeming fiction of permission to take effect,the condition precedent must have strictly complied. There is no scopefor a liberal interpretation of such condition, and unless there is strictcompliance of the provisions, a deeming fiction cannot take effect. TheHigh Court has rightly held that unless the application is submitted in theformat, it will lead to chaos as lower-level officials would be saddledwith the burden of deciding whether the applicant complies with therequirement of DCR 6(4). Even if the form is not mandatory, when thelaw prescribes a mode of doing a thing, it can be done in that manneronly and not in any other mode. In any event, deemed permission underDCR 6(4) cannot go beyond 1 year. Therefore, the construction is donebeyond the period of 1 year, that is, after 22.5.2012, is patently illegal.The construction was ready only on 14.9.2012.

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A52. Before we appreciate the rival submissions, it is necessary toconsider the provisions contained in DCR 6(4). DCR 6 deals with theprocedure during construction. DCR 6(1) provides construction toconform to regulations. Under DCR 6(2), the owner shall give notice tothe Commissioner of his intention to start work in the form given inBAppendix XV. DCR 6(3) provides that results of the test of any materialshall be kept available for inspection during the construction of the buildingand such period after that, as may be prescribed. DCR 6(4) contains aprovision for checking plinth columns up to the plinth level by theCommissioner. Regulation 6(4) with which we are concerned is extractedhereunder:C

“6. Procedure during construction:-

(4) Checking of plinth columns up to plinth level:—The ownerthrough his licensed surveyor, engineer, structural engineer orsupervisor or his architect shall give notice in the form of AppendixDXVI to the Commissioner on completion of work up to plinth levelto enable the Commissioner to ensure that the work conforms tothe sanctioned plans. The Commissioner may inspect the workjointly with the licensed technical personal or architect withinfifteen days from the receipt of such notice and either give orrefuse permission for further construction as per the sanctionedEplans in the form in Appendix XVII. If within this period, thepermission is not refused, it shall be deemed to have been givenprovided the work is carried out according to the sanctioned plans.”

It is apparent from DCR 6(4) that the purpose of the intimation toFbe given by licensed surveyor, engineer, structural engineer or supervisoror his architect in the form of Appendix XVI to the Commissioner oncompletion of work up to plinth level is to enable the Commissioner toinspect to ensure that the work conforms to the sanctioned plans. It isthe Commissioner’s satisfaction that work conforms to the sanctionedplans, not that of Architect of builder. It is for the Commissioner to satisfyGhimself, he has to inspect the work jointly with the licensed technicalperson or Architect within 15 days from the receipt of such notice, andthereupon he has to form an opinion whether the work conforms to thesanctioned plans and thereupon he is required to give or refuse permissionfor further construction as per the sanctioned plans. Further permissionHhas to be issued in Form Appendix XVII.

53. It is also provided under DSR 6(4) that if within the period of15 days, the permission is not refused, it shall be deemed to have beengranted provided the work is carried out according to the sanctionedplans. Thus, it is necessary to decide whether to give permission or torefuse after inspection within 15 days of the notice. In case it is not sodone within 15 days, the permission shall be deemed to have been granted.However, it is necessary for deemed permission to come into play; workof foundation up to the plinth level had been carried out according to thesanctioned plans.

54. In DCR 6(4), the prescribed Form XVI is extracted hereunder:

“APPENDIX XVI

[Regulations No.6(4)]

Form of intimation of Completion of Work up to Plinth Level To The Executive Engineer (Building Proposal) ................Ward, Municipal Corporation of Greater Mumbai.

Sir,

The construction up to plinth/column up to plinth level hasbeen completed in Building No..........on/in Plot No./C.S. No./C.T.S.No.................Division/Village/Town PlanningScheme No.........................Road/Street.................Ward.......................................in accordancewith your permission No.................dated……...............under mysupervision and in accordance with the sanctioned plan.

Please check the completed work and permit me to proceedwith the rest of the work.

Yours faithfully,

Signature of Licensed Surveyor/ Engineer/Structural Engineer/Supervisor or Architect A

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SUPREME COURT REPORTS

[2019] 16 S.C.R.

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Name ………………………………………

(in block letters)

Address…………..………………………….

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Date : .........................................”

55. The notice dated 7.5.2011, which has been served by theArchitect of SRUIL under Regulation 6(4), is extracted hereunder:

“TALATI & TALATI & PANTHAKYCASSOCIATES PVT. LTD.EST, 1964

ARCHITECTURE & INTERIOR DESIGN

CHAIRMAN NOSHIR TALATI

M.DIRECTOR NOZER PANTHAKY

DDIRECTORS – NOUSHIR DEVITRE – PHIROZE PANTHAKI –ZAHIR CASSUM –

SHAROOKH MEHTA – XERXES TALATI

To,

The Executive Engineer (B.P.) City – 1,

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‘E’ Ward MCGM Office,

Byculla, Mumbai – 400008

Dear Sir,

Sub: Development of Public Parking Lot on plot bearingFC.S.No.288, 289, 310, 1/1540, 3/1540, 1547, 1548, 1549, 1/1539& 1550 of Lower division belonging to Shree Ram Mill Ltd. atGanpatrao Kadam Marg, Mumbai – as per the provisions of D.C.Regn. 33 (24).

Ref: File U/No. EB/987/GS/A.

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With reference to the above subject. The amended plan submittedby us has been approved by your office. Further, we have compliedall the condition of I.O.D. as well as amended plan, and we havecomplied work up to plinth as per approved plans. You are thereforerequested to kindly check the plinth and grant us further C.C. atthe earliest.

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Thanking you,Yours faithfully,For Talati & Panthaky Associated Pvt. Ltd.Sd/-Authorised Signature”

56. When we compare the aforesaid Form XVI and the intimationsubmitted by SRUIL’s Architect on 7.5.2011, it becomes clear that noticegiven is rightly addressed to the Executive Engineer. The subjectmentioned is the development of PPL as per the provisions of DCR33(24). The requirement that construction up to plinth/column up to theplinth level has been completed, in accordance with the approved plan,fulfils the requirement of the first part of the format Appendix XVImentioned before the word “date.” After the word “date”, the requirementin the prescribed format is that “the work has been completed under mysupervision” and “in accordance with the sanctioned plan.” The latterportion, in accordance with the sanctioned plan, has been mentioned inso many words. The only difference is the format prescribes that thework has been done “under my supervision and in accordance with thesanctioned plan.”. It has been mentioned that “we have complied (sic –completed) work up to plinth as per approved plans.”

57. The architect, by the aforesaid expression, is owning that hehas completed the work as per the approved plans. He owns responsibilityupon himself that he has ‘complied with’ or ‘completed the work’ up tothe plinth level as per approved plans, which would obviously mean thatit has been done under his supervision. When the Architect is saying thatwe have completed the work, he owns the responsibility of theconstruction that has been made. When he owns that construction is onhis part as per plan, that would mean under his supervision. Apart fromthat, the basic idea of DCR 6(4) is not to ensure the satisfaction of theArchitect, some licensed surveyor, engineer, structural engineer,supervisor or Architect but it is for the Commissioner to ascertain thatthe work up to plinth level has been done as per sanctioned plan. A merestatement by the Architect that the work has been done under hissupervision is not going to satisfy the main requirement of DCR 6(4) ofsatisfaction of the Commissioner. The intendment of DCR 6(4) is thatthe work conforms to the sanctioned plan, which is as per the satisfactionof the Commissioner. The purpose of the notice is to enable the A

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ACommissioner to inspect and reach the satisfaction that the work doneconforms to sanctioned plan. Then he has to act further based on hissatisfaction, in case of construction as per the sanctioned plan, he has togive permission for further construction within 15 days or refuse it. Incase he fails to do so, permission is deemed to have been granted forfurther construction.B

58. In the instant matter, the receipt of the letter dated 7.5.2011has not been denied on behalf of the Corporation in the written statementfiled in the civil suit, instead this fact has been admitted by the witnessexamined on behalf of the Corporation in the civil suit, in the city civilCcourt, that the communication dated 7.5.2011 had been received and noreply to it was sent. It is not the case anywhere set up by the Corporationthat the construction up to plinth was not as per the sanctioned plan.Thus, the deemed permission has come in force under DCR 6(4), onexpiry of 15 days from the service of notice dated 7.5.2011. In C.S. No.2942/2011 filed by SRUIL in the plaint, it has been stated that the plaintiff’sDArchitect has served notice on 7.5.2011 under DCR 6(4). No reply orany rejection was received within 15 days from the corporation/defendants. Thus, the deemed permission came into play. Followingaverments have been made in the plaint:

E“18. As per the LOI dated 6[th] August 2010, the Plaintiffs wererequired to complete and handover to the MCGM the said PublicParking Lots within 24 months of issue of the LOI, i.e., by 6[th]August 2012. The Plaintiffs state that the construction of theplinth was completed in May 2011 following the CC. The Plaintiffs,Fafter that, gave notice as required under DCR 6(4) for inspectionof the plinth and grant of further CC on 7[th] May 2011. Since thePlaintiffs received no reply nor any rejection to the same within15 days, the construction of the Public Parking Lot was continuedby the Plaintiffs as per the sanctioned plans, in accordance withthe law. Hereto annexed and marked Exhibit “I” is a copy of theGPlaintiffs Architect’s letter dated 7[th] May 2011. The Plaintiffssay and submit that as no reply/rejection was received within 15days from the Defendants as required under law and hence asper DCR 6(4), it is a deemed provision permitting the plaintiffs tocarry out further work as requested in their letter dated 7[th] MayH2011.”

59. We have gone through the entire written statement filed bythe corporation. They have nowhere denied that they received the noticedated 7.5.2011, nor it is denied that there was deemed permission, afterthe lapse of 15 days of notice under DCR 6(4). Averments made in para18 have not been replied. In para 5, there is a reply to paras 1 to 4. Inpara 6, there is a reply to paras 5 to 8 of the plaint. Then in reply to para7, there is a reply to paras 9 to 20. Even otherwise, we have gone throughpara 7 and the special pleas and the entire written statement. We find noreply to the averments described above made in the plaint. Thus, in thecivil suit, for want of denial, no issue was framed on the aspect of deemedpermission. Apart from that, the witness of the corporation namely AjaySadanand Chawan has admitted in para 2 of the cross-examination thatthe letter issued by the plaintiff to the Corporation for obtaining furthercommencement certificate for the construction of public parking building,was received by the Corporation and that the Corporation did not replyto the said letter. Para 2 of cross-examination is extracted hereunder:

“2. On perusal of the file in my custody, I had seen that there isone letter issued by plaintiff to the corporation for obtaining furthercommencement certificate for the construction of public parkingbuilding. The letter at Exh.14 now shown to me was received byour corporation. The corporation did not reply to the said lettereither or allowing of the said letter or of refusing the said letter tillthe 31[st] May 2011. After the 31[st] May 2011, the corporation didnot reply to the said letter copy at Exh.14. Public Parking Buildingis of RCC. So far as completion of the RCC Slab at each floor,there should be interval of two to three weeks’ time. In order tocomplete the RCC Slabs up to the 7[th] floor, reasonable time of 3to 4 months is required. The corporation had received a replyissued by the plaintiff to the notice dt/29/011/2011 copy at Exh.25.It is true that our corporation had received the reply to the noticedt. 19/12/2011 copy at Exh.24.”

60. In para 1 of the cross-examination, the witness has admittedthat the said work in respect of 14 floors of the PPL building was followingthe approved and sanctioned plan of the Corporation. It was not thecase set up by the Corporation that the notice dated 7.5.2011 was illegal,and it did not conform to Form XVI as prescribed under DCR 6(4). Thefactum of the receipt of the notice has been admitted. The submissionraised on behalf of Janhit Manch that notice dated 7.5.2011 is a doubtfuldocument is belied by the record of the Corporation and the admission A

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Amade by the witness of the Corporation. The notice dated 7.5.2011 wasavailable on the file of the Corporation, but it was not replied. The DivisionBench of the High Court while deciding PIL No. 43/2012 filed by JanhitManch vide order dated 13.5.2013, has called for the inward register toverify whether the Corporation received the notice and the High CourtBhad made following observations:

“(l) The Respondent no.5 has contended that it had submitted aletter on 7[th] May 2011 under DCR 6(4) for further commencementcertificate and the application having not been refused, deemedto have been granted. The Petitioners have laid heavy emphasison the fact that the said letter purported to be of 7[th] May 2011 isCundated, and therefore there is no question of deemed permission.It is true that the said letter is undated, but there is a receipt by theCorporation of having received the application on 7[th] May 2011.During the course of the hearing, the learned counsel for theCorporation produced the original inward register. We perusedDthe said inward register and found nothing suspicious or out of theordinary. There is an entry of 7thMay 2011 as regards receipt ofthe application of the Respondent No.5, which seems to be madein the usual course. Admittedly this application is not decided bythe Corporation. In the circumstances, we do not find that thesubmission made by the Respondent no.5 that it had deemedEpermission is without any substance. The Respondent no.5 hasfiled a Civil suit taking this contention in which there is an interimorder passed in favour of Respondent no.5.”

F61. It is apparent that the Division Bench of the High Court hasseen the inward register also and there is a corresponding entry on7.5.2011 as regards the acceptance of notice. It seems to have beenmade in the usual course. In PIL No. 43 of 2012 filed by Janhit Manch,no such plea was taken that the notice was not in Form XVI, and it wasillegal. In First Appeal No.884/2015, the Corporation did not challengeGthe finding of the civil court, nor did it raise the ground that owing to thefailure to submit a notice in Form XV, the letter dated 7.5.2011 cannot betreated as valid intimation and as such deemed permission did not accrue.The main ground raised in PPL was about FSI, and concerning publiccar parking proposal, pleadings were made in para 23 of the writ petition.HIn para 25 it was pleaded that commencement certificate dated 1.10.2010, permitted construction only up to the plinth level for public parking lotvide undated letter of Architect of respondent no.5 received by theBuilding Proposal Department of the Corporation on 7.5.2011, respondentNo.5 through its Architect informed that the amended plan has beenapproved by their office, and have completed the work as per the approvedplans, and sought further commencement certificate at the earliest. Inpara 26, it was pleaded that the Corporation did not respond to the letter.Paras 25 and 26 of the petition are extracted hereunder:

“25. Since the C.C. dated October 1, 2010, permitted constructiononly up to the plinth level for Public Parking Lot, a furtherCommencement Certificate was required for the ground + upperfloors above the plinth. By an undated letter of the Architects ofRespondent No.5 received by the Building Proposal Departmentof the MCGM on 7thMay 2011, Respondent No.5, through itsArchitect, informed that “The amended plan submitted by us hasbeen approved by your office. Further, we have complied all theconditions of I.O.D. as well as amended plan, and we havecomplied work up to plinth as per the approved plans. You aretherefore requested to kindly check the plinth and grant us furtherC.C. at the earliest. This letter significantly is undated, and asmore particularly set out hereafter, it is evident that work on theplinth was completed. This was clearly a false contention as setout hereafter. Hereto annexed and marked as Exhibit “O” is acopy of the undated letter addressed by the Architect ofRespondent No.5 to the Executive Engineer (B.P.) City – I.

26. The MCGM apparently did not respond to this letter. Basedupon the alleged lack of response, though no inspection was carriedout, Respondent No.5 now contends that it carried out constructionabove plinth level pursuant to Regulation 6(4). Significantly, onthe date of this letter of its Architect, there was no revised MOEFpermission for this Public Parking Lot, and Respondent No.5 wasnot entitled to construct without prior permission of the MOEFunder the Environment Impact Assessment Notification, 1994.This EIA Permission was only subsequently obtained on June 8,2011.”

62. It was not the case set up by Janhit Manch in the previouswrit petition (PIL) that the notice was not in Form XVI, and the letter A

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Adated 7.5.2011 did not fulfill the requirement of Form XVI. Instead, itwas admitted that it was received by the Corporation and was not repliedto and that the Architect intervened to have the work completed as perthe approved plan. In the special leave petition preferred in this Courtagainst the decision of the High Court in PIL No. 43/2012, this groundBwas not raised, nor was it raised before the High Court in the PIL. InSLP [C] No.20279/2013 as against order dated 13.5.2013 which wasdecided on 11.3.2016, the following order was passed by this Court:

“Permission to file additional documents is granted.

Having heard the learned counsels for the parties, we are of theCview that there is no live issue for adjudication in the presentSpecial Leave Petition. The Special Leave Petition is disposed ofaccordingly. However, we make it clear that in the event it becomesso necessary, after receipt of the order passed by the BombayHigh Court, it will be open for the petitioners to make a mentionfor recall of the present order.”D63. On 15.1.2018, IA No.6 was filed in SLP mentioned above,and the following order was passed:

“I.A. No.6 IN SLP (C) NO.20279/2013

Upon hearing Shri Shekhar Naphade, learned Senior CounselEappearing for the applicants we are of the opinion that in view ofsubsequent developments and subsequent challenges which arepending before this Court it is not necessary to reopen andreconsider the present I.A. Therefore, the present I.A. (No.6)shall stand closed.

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Special Leave Petition (Civil) No.10704-10705 of 2016, SpecialLeave Petition (Civil) No….. CC No.13523-13528 of 2016 andTransferred Case (Civil) No.271 of 2017 shall, consequently, bede-tagged and be listed before the appropriate Bench. All issuesare kept open.

GOffice to post Special Leave Petition (Civil) No.10704-10705 of2016, Special Leave Petition (Civil) No….. CC No.13523-13528of 2016 and Transferred Case (Civil) No.271 of 2017 before theappropriate Bench on 22[nd] January 2018.”

Thus, it was not considered appropriate by this Court to reopenHthe matter and reconsider it. Thus, all the issues were left open. They

were only those raised earlier in the PIL by Janhit Manch. It is alsopertinent to mention that in compliance of the order passed by the HighCourt on 13.5.2013, the Corporation has passed order on 12.9.2013,before filing the First Appeal in the High Court, in which the Commissionerof the Corporation has clearly held that in view of notice dated 7.5.2011as per DCR 6(4), the deemed permission came into effect on lapse of15 days.

64. Though we have decided the plea on merits, however, it isapparent from the aforesaid discussion that it is not open to the parties,i.e., the principle of constructive res judicata bars the Corporation andJanhit Manch to take somersault and take a different stand in thesubsequent litigation and all the available pleas, which could have beentaken in previous civil suit and PIL, ought to have been raised, otherwiseraising of them in subsequent lis.

65. It passes comprehension how Janhit Manch is raising thequestion now that the notice dated 7.5.2011 was not served upon theCorporation, whereas it has been admitted by it in the previous PIL thatit was served but was not attended to by the Corporation. In the writtenstatement filed by the Corporation before the city civil court, it is notdenied, and its witness has admitted that the notice was received and itwas not replied to by the Corporation. It is not open to the parties to takea different stand at different stages. In the instant matter, these questionscannot be taken up by Janhit Manch, and the Corporation has not comeup in the appeal against the decision dated 13.5.2013 of the High Courtand has complied with the order bypassing the order dated 12.9.2013.The Corporation is not before us in the appeal. It is only Janhit Manchagitating the matter. Janhit Manch has preferred the special leave petitionin this Court as against the impugned judgment and order of the HighCourt deciding the second PIL and SRUIL has come to this Court andnot the Corporation. As against the subsequent decisions taken by theCorporation according to the impugned judgment and order, Janhit Manchis before us.

66. Because of the discussion above, we are of the consideredopinion that firstly, the finding of the High Court concerning the illegalityof the notice dated 7.5.2011 is not sustainable on merits. In our opinion,there was substantial compliance with Form, and the purpose of givingnotice is only to enable the Commissioner to inspect and ensure that theconstruction raised is as per the sanctioned plan. There is admission AB

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67. Coming to the submission that construction up to the plinthlevel had not been completed by 7.5.2011 when the architect gave thenotice. The notice was given about the PPL, which was received by theCorporation. It was, therefore, open to the Commissioner to inspect andto ensure whether the construction work was done up to the plinth level,Cand it was as per the sanctioned plan. After that, to decide within 15days of the notice whether to grant permission for further constructionor to refuse it. Thus, when it was open to making inspection as providedin the notice, it having not been done by the Commissioner, it is not opento the Corporation to contend that the work has not been completed upto the plinth level, as it was open to verify the fact on the spot which wasDnot done. There is nothing to doubt the claim of SRUIL for the reasonsto be mentioned hereafter.

68. It is submitted on behalf of Janhit Manch that on 16.7.2011, anotice was issued to SRUIL, and an inventory prepared on 22.7.2011 inwhich it was mentioned that the work of PPL tower was in progress upEto plinth, as per commencement certificate granted. Therefore, it issubmitted that the construction of the plinth was not complete even on22.7.2011. Our attention has also been drawn on behalf of Janhit Manchto report dated 11.11.2011 in which it has been mentioned that the workof the PPL is found to be carried out up to the plinth level. CorporationFhas issued a notice dated 29.11.2011 to SRUIL concerning the publicparking lot. In the notice dated 29.11.2011, it has been mentioned thatthe construction has not been completed beyond the plinth level as suchwhy the permission should not be revoked, whereas the inventory dated14.12.2011 of the Corporation indicates that the work up to 6[th] floor ofPPL is carried out. On 14.12.2011, the Corporation has issued secondGstop-work notice. On 19.12.2011, notice under the MRTP Act was issued.It was mentioned that the work of construction of PPL tower, 1[st] to 6[th]floor (entire), and 7[th] to 9[th] floors (Part) is beyond CC granted. Thus, itwas mentioned by Corporation that by 19.12.2011, up to 6[th]-floor workwas complete and 7[th] to 9[th] floors were in progress; whereas in theHorder of the court dated 24.12.2011 which is 4 to 5 days after that, the fact is mentioned that the work has been completed up to the 9[th] floor.The Court granted the interim injunction because of the deemedpermission, according to the notice dated 7.5.2011, to complete theremaining work.

69. It is pertinent to mention here that the witness examined onbehalf of the Corporation Mr. Ajay Sadanand Chawan stated in para 2of the examination quoted above that so far as completion of the RCCslab at each floor, there should be an interval of 2 to 3 weeks which is acorrect statement. In order to complete the RCC slabs up to the 7[th]floor, reasonable time of 4 to 5 months is required. It is also pertinent tomention here that an affidavit has been filed on behalf of the Corporationon 4.5.2012. Para 4 of the affidavit filed by the Corporation is as under:

“(v) I submit that another Stop Work Notice dated 16thJuly 2011was issued by these respondents to respondents no.5 for carryingout the work by misrepresenting by way of showing amalgamationof leasehold and freehold plot, but the same was withdrawn on11thNovember 2011as the same was rectified by the Respondentno.5 and has given a registered undertaking. The respondent,no.5, was also directed to deposit a sum of Rs. One Crore withMCGM. The Respondent NO.5 has also agreed to convert theirfreehold land to a leasehold land with the lease of 30 years asagainst the existing lease of the leasehold land of 999 years. Thesaid order is not in respect of the construction of public parkingbuilding, which to subject matter of the present petition.”

70. It has been clearly admitted that show cause notice dated16.7.2011 did not relate to PPL, and it was withdrawn on 11.11.2011,and it related to other parts of the plot of SRUIL. In view of the aforesaidclear admission it is apparent that there is misrepresentation made byJanhit Manch that this show cause notice related to PPL, in fact, sameis not related to PPL, as admitted by the Corporation in its affidavit; andsecondly when it has been mentioned in the notice dated 11.11.2011 thatthe work up to plinth level only was complete, the aforesaid fact waswrongly mentioned as in the notice dated 14.12.2011,issued by theCorporation after few days, it was mentioned that the work up to 7[th]floor had been completed. It passes comprehension when on 14.12.2011,the Corporation mentions that the work had been carried out up to the6[th] floor, and on 19.12.2011, it has also been mentioned that it has been A

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Acompleted up to 6[th] floor, and from 7[th] to 9[th] storey was in progress, howovernight RCC construction of the various floors could have beencompleted without lapse of 2 to 3 weeks for each of storey which is aminimum period, as admitted on behalf of the Corporation by its witnessalso. Thus, obviously, the work up to the plinth level had been carried outBby 7[th] May 2011, the date on which notice was given and deemedpermission came into force on the expiry of 15 days. Otherwise, 7[th] to9[th] floors would not have been constructed by 19.12.2011. After that,the total days available to SRUIL were 210 till 19.12.2011. Thus,construction up to the 9[th] floor is bound to take at least 5 to 6 monthseven if it is done at a fast speed, and it also included the monsoon season,Cwhich also intervened in-between when work is slow or halted. It passescomprehension when on 11.11.2011; it was mentioned that work wasonly up to the plinth level, how within 35 days, a total of 9 floors couldhave been constructed, one floor every 3 days. Thus, there was somethinggrossly amiss about what was happening on the part of the Corporation,and absolutely wrong facts had been mentioned in the inventories, whichDare contradicted by the facts mentioned in the notice for demolition andalso by the minimum time required for construction of each floor. Thus,no reliance can be placed on the inventory dated 22.7.2011, and stopwork notice dated 16.7.2011 was not related to PPL. Thus, it cannot besaid that the work had been carried out in violation of stop-work noticeEdated 16.7.2011 as submitted on behalf of Janhit Manch. The submissionhas no legs to stand, and is hereby rejected.

71. In the inspection report dated 22.7.2011, it has not beenmentioned what is the name of the representative of SRUIL who waspresent on the spot. Nor is it mentioned in the subsequent report ofFNovember 2011. The Corporation has falsely mentioned in the noticedated 29.11.2011 that the work of PPL had not been carried out beyondthe plinth level on 29.11.2011. How within 19 days, construction of 9storeys could be completed, can only be explained by some superpower,and it appears to be a fairy tale. It appears that anyhow or somehow, theCorporation sat over the intimation dated 7.5.2011. The CommissionerGdid not inspect the plinth of PPL thereafter, and concerning the residentialportion, the stop-work notice dated 16.7.2011 had been issued. Noticewas withdrawn on 11.11.2011. After that, the notice was issued concerningPPL by mentioning patently wrong facts on 29.11.2011 for reasons bestknown to the Corporation. We are constrained to observe that the caseHreflects some severe kind of rivalry and distortion of facts. There was an attempt made to ensure that the building is delayed or is demolishedby way of filing the PIL one after the other, taking different grounds atdifferent stages, many interventions have been filed. The Human RightsFederation had also attempted to intervene in this Court. Though earlier,a PIL, which was filed by it on 9.5.2014, was dismissed as withdrawnon 7.11.2014 to approach an appropriate forum by way of filingappropriate application/representation. The said intervenor also filed anSLP before this Court challenging the impugned judgment and ordersdated 22,25,27.1.2016 passed by the High Court. This Court has rejectedthe prayer, dismissed the SLP filed by the petitioner to avail of any otherremedy. After that, the intervention application has been filed. Theintervenor cannot enlarge the scope of PIL. We have no hesitation inrejecting the intervention application filed on behalf of the said Federation.

In re: whether construction of PPL is limited up to 4 upperfloors because of Circular dated 22.6.2011?

72. It is submitted on behalf of Janhit Manch that as per DCR33(24) introduced w.e.f. 20.10.2008, “public car parking lot scheme”was brought into effect. Thereunder for a PPL constructed on a plot ofland and handed over free of cost to the Corporation, the plot owner/developer was entitled to receive incentive FSI inter alia to the extentof 50% of the area of the PPL handed over by him. The unrestrictedconstruction of PPL followed under the said Regulations.

73. It was submitted on behalf of Janhit Manch that the Governmenthad issued a Circular on 22.6.2011 to limit the PPLs to ground plus fourupper floors plus two basements. Thus, in the light of the Circularmentioned above, notice has been issued by the Corporation for thedemolition of floors and why commencement certificate should not bemodified or revoked. Notice was issued on 29.11.2011. The counsel hassubmitted that the notice dated 16.7.2011 was also issued. The Corporationpursuant to a direction issued in PIL No. 43/2012 passed an order on12.9.2013 relying upon the Circular that construction from 5[th] to 15[th]floors of the PPL was not in consonance with the Circular of 2011. Mr.Ahmadi also submitted that the draft amendment was proposed to amendRegulation 33(24) on 19.3.2012. SRUIL had not submitted any modifiedplan despite the direction of the Corporation. Later on, an amendmenthad been incorporated on 6.8.2014 in DCR 33(24), restricting the heightas mentioned in the Circular. As such, construction is illegal, and itsregularisation could not have been ordered.

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A74. The submission is untenable. We have gone through the variousorders passed by the High Court in which aforesaid circular of 2011 hasbeen quashed as the Development Control Regulations, 1991 arestatutory in nature and it was not open to issue any direction which isexecutive in nature, either by the State Government or the Corporationin derogation to the statutory provisions. When Regulation 33(24) was inBvogue, development permission had been granted to SRUIL in the year2010. The provisions of DCR 33(24) containing no restriction on thenumber of floors of PPL, came into force on 20.10.2008. Developmentpermission has been granted on 18.6.2010 after 1 year 10 months andthereafter commencement certificate had also been granted on 1.10.2010Cwith respect to PPL and notice under which deemed permission accruedunder DCR 6(4) had been served on 7.5.2011 by the Architect. Oncedeemed permission accrued to SRUIL on lapse of 15 days, theconstruction had been completed in 2012 before the amendment wasmade in the Regulations in 2014. The order of regularisation was notnecessary because of deemed permission. Thus, in our opinion, the HighDCourt has rightly held that the decision of the Corporation applying thesaid Circular was impermissible as it did not have the force of law, andit stood quashed by the High Court in other cases. Thus, the submissionmade by Mr. Ahmadi stands repelled.

75. It could not be said that the Circular of 2011 was supplementaryEto DCR 33(24). It was clearly in derogation to it and could not haveprevailed over a statutory provision. It was not necessary to question itin the present petition by SRUIL as it has no force of law and has beenrightly quashed by the High Court in other cases.

In re: whether the sanction of the PPL building by way ofFan endorsement of commencement certificate is illegal?

76. Mr. Ahmadi also submitted that initially, IOD was granted on24.1.2005. After that, there was an amendment to the residential buildingon 12.7.2005, and again, there was an amendment of the plan forconstruction of a residential building on 7.11.2007, 2.2.2009, andG11.8.2009. SRUIL amended the plans from time to time for a residentialbuilding in question. On 8.2.2011, the plan for residential building wassanctioned for 56 floors. Because of the aforesaid, it is submitted onbehalf of Janhit Manch that it is a case of departure of substantial naturefrom the initially sanctioned plan, DCR 6(5) governs the deviation duringHconstruction. Even if the deviation is within the ambit of Regulation 6(5), the sanction is necessary under sections 337 and 346 of the CorporationAct.

77. When we examine the submission, it is apparent that thedevelopment permission has been granted. The residential building planhas been approved. The commencement certificate was endorsed fromtime to time. Amendment was made on 8.2.2011, and commencementcertificate was again endorsed on 8.2.2011 under DCR 33(24). ThePPL policy came into force in 2008, and its development plan wassanctioned in 2010, and commencement certificate had been granted on1.10.2010. The reliance has been placed on Regulation 6(5), the same isextracted hereunder:

“6. Procedure during construction:-

(5) Deviation during constructions:—If during the construction ofa building, any departure of a substantial nature from the sanctionedplans is intended by way of internal or external additions, sanctionof the Commissioner shall be necessary. A revised plan showingthe deviations shall be submitted, and the procedure laid down forthe original plans heretofore shall apply to all such amended plans.Any work done in contravention of the sanctioned plans, withoutprior approval of the Commissioner, shall be deemed asunauthorised.”

78. It is apparent from the aforesaid Regulation 6(5) that the sameis applicable during the construction of the building, and any departure ofsubstantial nature from the sanctioned plan can be allowed by theCommissioner. The provisions of section 337 do not restrict the ambitand scope of Regulation 6(5). Initial permission had been obtained fordevelopment, and during construction, further variation could have beenmade. The provision of section 346 is of no help as, at no point in time,the development plan had been disapproved. The question of modifyingdisapproval is not germane. The submission raised by Mr. Ahmadi isheld to be devoid of substance and cannot be accepted.

In re: Refuge Area

79. Janhit Manch submitted that the order dated 3.8.2016 passedby the Municipal Commissioner concerning the refuge area is illegal. Itwas further submitted that in the refuge area, occupants could take refugeand also can be rescued by the fire officers. Access to refuge area hasbeen allowed, which is absurd that a disabled person or an older person A

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Awill wait outside the flat, who stay at the 56[th] floor of the building to berescued by the fire officer in case of a fire in the building, access to thearea is difficult. In the case of senior citizens, disabled persons, smallchildren in the building, it defies common sense to provide for refugeareas at such height, which are almost commensurate with the extent ofthe habitable area shown and included in the FSI. It was further submittedBthat the refuge area sanctioned by the Corporation in the order dated31.8.2016 is a whopping 39,000 sq. mtrs against the habitable area of54715.19 sq. mtrs., that is almost 60% of the habitable area. The saidareas have also been sold to flat buyers under the guise of decks/terracesand are, in fact, a device to get the additional habitable area for sale toCflat buyers under the guise of refuge area. This point was agitated inPIL No.43/2012. The High Court has disposed of the said PIL byobserving that the refuge area was excessive. It is urged that theCorporation has now accepted the area was excessive. There was anorm of 4%, and now Corporation has said that it has been now reduced to 23%. Janhit Manch has further submitted that the High Court in theDimpugned judgment observed that the Commissioner should recalculatethe refuge area following the National Building Code (NBC). It is alsosubmitted that in the order dated 31.8.2016, it has been observed thatNBC cannot be applied in toto as the refuge area is already constructed.As the corporation has granted permission, refuge area has now beenEreduced to 23% and structural columns can be allowed free of FSI inthe permissible area which is illegal, and four full refuge areas in onefloor are not necessary and cannot to be taken as refuge area as theycannot be used in case of fire. It is submitted on behalf of Janhit Manchthat the decision of the Commissioner is illegal and entirely contrary toFDCR 44(7), which states that the refuge area over 4% of the habitablearea has to be counted in FSI. Reliance has been placed on DCR 43(1),which provides that Chapter (iv) of NBC, 2005, shall apply unless thematter is otherwise provided. It is submitted that the reasoning employedby the Commissioner is perverse. On each floor, there are 4 flats of 4bedrooms. Therefore, the maximum occupancy per flat can be estimatedGto be about 6-7 persons or at best 10 persons per flat, which for 4 flatswill aggregate to 40 persons. Thus, the occupancy load of 322 personsper floor, to say, is perverse and arbitrary. There is an arithmetical mistakedone while calculating the area. It is further submitted that as refugeareas have been provided for four flats, in case of an emergency like aHfire, the fire brigade will find it impossible to access 144 different areas

at the same point of time. It may not be in the interest of inhabitants. Itis further submitted that the Chief Fire Officer has permitted to provideglass curtain walls on all sides of the building at refuge floors, regardingthe individual refuge floors on the four floors of the building. The CFOhas permitted glass curtain walls in the rest of the building, which makesthe 144 refuge areas inaccessible and unusable as refuge areas. Theareas are shown as refuge areas, and fire escape passages have beensold as decks/terraces to flat purchasers and merged with the flats asusable areas. The purpose is to create a balcony over the terrace. Itwas submitted that merely because construction has been completed,no equities can be claimed.

80. It is submitted on behalf of SRUIL that the vires of DCR2(13), 2(42), and 2(44) have not been questioned. The regulationsdescribed above contain a clear and unambiguous provision which wasin force at the relevant time. It is also submitted that Regulation 44(7) issignificant in this regard. The only requirement is the minimum area of15 sq.mtrs of a specific width. There is no other restriction on the grantof refuge area. Regulations in respect of fire and safety are notexhaustive, and CFO is an expert authority to consider the requirementof high-rise buildings. It is also submitted that Regulation 44(5) makes itmandatory for high-rise and special buildings and exempts them fromFSI calculations under DC Regulation 35(2)(d). It is further submittedthat in the NOC granted by the CFO vide order dated 30.12.2006, it hasbeen directed to provide requisite area as approved in the plan. Therecommendation made by the CFO is the recommendation of an expert,which has expressly been recognised in DSR 5(ii). The Circular dated21.9.1993, which is issued by CFO, provides for the size of the refugearea with the minimum requirement of 4% of the total built-up area andthe size of each refuge area. The built-up area has been defined as thetotal built-up area. The circular is not a statutory circular and does notamend the DC regulations. Regulations are in the form of delegatedlegislation, as observed in Pune Municipal Corporation & Anr. v.Promoters & Builders Association & Anr. (2004) 10 SCC 796.Directions issued by the Urban Development Department dated2.12.1993 required the Municipal Commissioner to withdraw theguidelines issued by the CFO as they were not in conformity with theDC Regulations. It is urged on behalf of SRUIL that DC Regulationscannot be amended except by following the procedure under the TownPlanning Act under section 37. Executive Circulars cannot amend the A

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Aregulations as observed in Godrej and Boyce Manufacturing Co. Ltd.v. State of Maharashtra & Ors., (2009) 5 SCC 24. Thus, relying oncircular, the submission that the refuge area as recommended by theCFO and the corporation is excessive and contrary to DC Regulations iserroneous and incorrect.B81. The determination of the refuge area was done by the CFO, B81. The determination of the refuge area was done by the CFO,who is the competent and technical authority. The decision of the CFOhas been revisited by 3 successive Commissioners and has been confirmedwhile approving the sanctioned plan merely because some apprehensionwas raised about possible misuse of the refuge area. It is impermissibleto revisit the said decision. SRUIL submits that while order datedC31.8.2016 allowed free of FSI of 16262.06 sq.mtrs, that is the area atthe external periphery and has further directed that this should bementioned in and prominently displayed in the building. In IndoreMunicipal Corporation & Anr. v. Dr. Hemalata & Ors., (2010) 4SCC 435, possible misuse of the refuge area had been considered, andDthe court observed that based on possible misuse, the planning permissioncannot be questioned nor can be revoked. This Court has observed:

“14. The fact that the sanction is for a residential-cum-commercialpurpose is not disputed by the respondents. They have neverclaimed that they will use the building contrary to the permissibleEuser. Even before the completion of the construction and obtainingof occupation certificate, without issuing a show-cause noticealleging such misuse, an order has been issued alleging a violationof the permitted user. There is no occasion for the second appellantto assume that the respondent is likely to violate the sanctioneduser. After the issue of occupancy certificate, if there is anyFviolation of sanctioned use, it is always open to the MunicipalCorporation to take appropriate action in accordance with law atthat stage. The finding in the order dated 11.4.2000 that there hasbeen a violation of the Rules in this behalf, is unwarranted and atall events premature.”

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82. It is further submitted on behalf of SRUIL that Maharashtralegislature has passed an Act known as the Maharashtra Fire Prevention& Life Safety Measures Act, 2006, which has received the assent ofthe President on 5.2.2007. Section 3 of which mandates owners to providefor fire prevention and life safety measures and also prescribes a stringentHpenalty for non-observance of such conditions. A Director or Chief Fire Officer has been empowered to prescribe measures for fire preventionand life safety measures. It is further urged that the National BuildingCode is in respect of the fire protection requirement of high-rise buildings(15 meters and above). As per clause C-1.11 provisions contained inclause 4.12.3 shall apply for buildings except for multi-family dwellings,refuge area of not less than 15 sq.m. shall be provided on the externalwalls. Clause 4.12.3 of the National Building Code does not stipulate4% as a requirement of the refuge area. Even if the NBC provides thatanything in excess of requirement is to be counted in FSI and that refugearea in excess of 4% is to be counted in FSI, it is submitted that it wouldrequire amendment of DCRs 35 and 44(7) by following the procedureunder section 37 of the MRTP Act.

83. When we consider the order that has been passed by theMunicipal Commissioner pursuant to the impugned judgment passed bythe High Court, re-determining the refuge area, it has been reduced to23% only. The CFO has considered the higher requirement of buildingand providing a separate refuge area for each of the flat that is to saythat four refuge areas on each floor, one attached to each flat, has beenapproved by the CFO and the corporation. The permission was grantedway back in the year 2006 and the inspection note dated 11.11.2011indicates that the construction of the residential building had been carriedout up to a height of 180 meters i.e., 36[th] floor, the permission was grantedin 2006 and commencement certificate has also been issued from timeto time as mentioned above. The construction of the residential buildinghad been raised to the 36[th] floor in 2011, and Janhit Manch awakenedthe first time to file PIL No. 43/2012 in the High Court. Thus, it was abelated petition. For fire safety, with respect to the refuge area, the viewof the Fire Safety Officer has to prevail not ipse dixit whether it wouldbe appropriate to have more area or the lesser cannot be said to beacceptable which appears to be a hang-over, the objection appears to bemore the outcome of some grudge harboured by unknown hands behindJanhit Manch.

84. The objections have been raised on behalf of Janhit Manchconcerning the height of service floor and elevation features like flowerbeds, ornamental projection, servant toilets, and structural columnsconcerning which the Commissioner, Municipal Corporation has givenin extensive details the reasons for the decision rendered by it. ThisCourt is not an expert in the field of determination of refuge area and in AB

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Aour opinion, when Corporation and Chief Fire Officer had grantedpermission, it cannot be said that any tremendous public purpose is goingto be served by entertaining the belated objections which appear to bethe outcome of some business rivalry between warring groups. We findthe order passed by the Municipal Commissioner dated 31.8.2016 withrespect to refuge area cannot be said to be illegal or arbitrary in anyBmanner in the facts and circumstances of the case, mainly due to thefact that permission had been granted by the CFO as well as thecorporation which has been questioned belatedly. The order dated31.8.2016 is upheld as we are not inclined to interfere on the aforesaidgrounds in the peculiar facts and circumstances of this case.CIn re: order of the Additional Municipal Commissionerdated 10.11.2016 and the notice under section 51 of the Act :

85. It is submitted on behalf of Janhit Manch that show-causenotice dated 29.11.2011 was issued under section 51 of the MRTP Act.A reply was filed on 14.12.2011 in which stand was taken that provisionsDof section 51 are not applicable, and despite the notice, SRUIL did notstop the work as such the notice for demolition was issued on 19.12.2011.Ultimately, pursuant to the direction issued in PIL No. 43/2012, it wasdecided by the Municipal Commissioner on 12.9.2013 that PPL above5[th] to 15[th] floors was not in consonance with the circular of 2011. Thus,no incentive FSI would accrue. It was submitted that the corporationEtook the stand that no decision was pending on show-cause notice dated29.11.2011, as stated in the affidavit dated 26.2.2014. The High Court inthe impugned judgment held that the Commissioner was required to re-work the FSI; hence, SRUIL ought to have submitted the modified plans.As SRUIL submitted no fresh proposal for development permission, theFapplication for regularisation was not in compliance. On 10.11.2016, theAdditional Municipal Commissioner passed an order deciding the show-cause notice dated 29.11.2011 and held that the construction of the PPLhad substantially progressed, and as such, the entire PPL can beregularised, is contrary to law.

G86. We have held there was deemed permission for PPL underDCR 6(4) as per notice of Architect dated 7.5.2011; thus, the submissionsraised cannot be accepted. Moreover, it is not necessary to go into thequestion of whether the notice dated 29.11.2011 survives or not for thedecision, as we have held that there was deemed permission. Thus,there was no question of regularisation of the PPL. The submissions areHdevoid of substance and as a result of this repelled.

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87. We have not accepted the finding of the High Court concerningdeemed permission as to PPL. Thus, the findings recorded in the judgmentand order and the submission raised on that basis by Janhit Manch, cannotbe said to be sustainable. The consequent order of the Corporation inthat regard falls.

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88. We place it on record that we have examined the matter onmerits, notwithstanding that we are not satisfied with the bona fides ofPIL, as the litigation has a chequered history and has several rounds.Hence, we ignore the aforesaid aspect.

89. In the circumstances, we have no hesitation in setting asidethe order of the High Court in part and also set aside the finding recordedCby the High Court that no deeming permission accrued under Regulation6(4) of Development Control Regulations, 1991. In our opinion, deemedpermission accrued, and concerning the determination of refuge area asper order dated 31.8.2016 passed by the Municipal Commissioner, nointerference is called for. Order dated 31.8.2016 passed by the MunicipalDCommissioner regarding the refuge area is upheld. Petitions filed byJanhit Manch – PIL [L] No.133/2015, T.C. No.271/2017 and T.C.No.6/2018 deserve dismissal and are, as a result of this, dismissed.

90. Let the Corporation take over PPL and proceed further todecide concerning 13 floors, i.e., 44 to 56 floors of residential buildingwithin one month from today.

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Kalpana K. Tripathy

Matters disposed of.

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