21st December, 2011

Petitioner Counsel: Mr. P.K. SAMDHANI, Mr. B.K. GALA, Mr. R.A. KAPADIA, Mr. N.H. SHUKLA, Mr. V.A. THORAT, Mr. N.V. DEVASHRAYEE
Respondent Counsel: Mr. K.K. SINGHAVI, BENNET D'COMA, Ms. V.S. GHARPURE, Ms. P.A. PURANDARE, Mr. VIBHAV KRISHNA

Cases Cited:
Nahalchand Laloochand Private Ltd. Vs. Panchali Cooperative Housing Society Ltd., 2010(6) ALL MR 430 (S.C.) =(2010) 9 SCC 536 [Para 13,23]
M.I. Builders Pvt. Ltd. Vs. Radhey Shyam Sahu and Ors., AIR 1999 SC 2468 [Para 13,15,19,23]
Province of Bombay Vs. Khushaldas S.Advani, AIR (87) 1950 SC 222 [Para 18,20]
Kham Chand Vs. Union of India, 242 SC Reports (1963) [Para 18]
Patel Narshi Thakershi and Ors.Vs. Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273 [Para 20]
Smt. Hansa Dattatraya Moodaliar & others Vs.The Pune Municipal Corporation & others, 1997(4) ALL MR 481=1998(2) Bom.C.R.647 [Para 20]
State of Bihar Vs. D.N. Ganguly and ors., AIR 1958 SC 1018 [Para 21]
G.J.Kanga,Adm.of Municipal Corporation Vs. S.S.Basha, 1992 Mh.L.J.1573 [Para 21]
State of M.P. Vs. Ajay Singh and Ors., AIR 1993 SC 825 [Para 21]
Ashok Kumar Sahu Vs. Union of India & Ors., (2006) 6 SCC 704 [Para 23]
Roshan Deen Vs. Preeti Lal, (2002) 1 SCC 100 [Para 23]
Paygonda Surgonda Patil Vs. Jingoda Surgonda Patil, 1967 BLR 579 [Para 23]
Gandhinagar Motor Transport Society Vs. State of Bombay, 1953 BLR 922 [Para 23]
K.R.Shenoy Vs. Udipi Municipality, AIR 1974 SC 2177 [Para 23]
Bhawarlal Bhandari Vs. Universal Heavy Mechanical Lifting Enterprises, AIR 1999 SC 246 [Para 23]
Manaklal Vs. Dr.Prem Chand Singhvi & Ors.(S), AIR 1957 SC 425 [Para 23]
Des Raj Vs. Union of India & Anr., 2005(5) ALL MR 103 (S.C.)=(2004)7 SCC 753 [Para 23]
M.C.Mehta Vs. Union of India, 2005(5) ALL MR 353 (S.C.)= (2004) 6 SCC 588 [Para 23]
Mysore Urban Development Authority Vs. Veer Kumar Jain & Ors., 2010 ALL SCR 1402= (2010) 5 SCC 791 [Para 23]
State of U.P. Vs. District Judge, Unnao & Ors., (1984) 2 SCC 673 [Para 23]
State of Bombay Vs. Morarji Cooverji, 1958 BLR 318 [Para 23]
Jaswant Sugar Mills Ltd.Meerut Vs. Lakshmichand & Ors., 242 SCR (1963) SUPP [Para 23]

JUDGMENT

MRS. MRIDULA BHATKAR, J. :- The above petitions were heard finally by consent at the admission stage since common point is involved in these petitions, with the consent of the Advocates, the petitions are heard together and are disposed of by this judgment. Formal order of rule is passed and the service is waived by the respective Advocates.

2.In so far as Writ Petition No.1884 of 2011 is concerned, the same is filed by the Developer namely Shravan Developers, by which the petitioners have challenged the order passed by the Municipal Commissioner dated 30-07-2011. By the impugned order, the Municipal Commissioner gave directions regarding demolishing certain constructions carried out by the developers i.e. Lily ponds and adjacent deck areas, while giving an option that in lieu of demolition, it will be open to the developers to have equal floors of upper floors be demolished, if Lily ponds and Deck areas are to be retained by the owner by working out the revised FSI computation accordingly. The owner is directed to exercise its option within a period of six weeks. It is further directed that if the 11th floor can be constructed within the permissible FSI, the same may be regularized by charging premium/penalty as per policy. Else the same also to be demolished. The Municipal Commissioner further directed that the extended portion of toilets beyond approved plan should be demolished. Regarding deck parking and maneuvering areas based on the stamp duty ready reckoner rates of developed land, the Commissioner directed that as a deterrent against possible misuse in future, the developers shall pay security deposit for the areas under deck parking. It is ordered that no occupation permission or water connection will be granted unless such deposit is paid to the Corporation. It is the aforesaid order of the Municipal Commissioner which is impugned at the instance of the petitioners' developers by way of this petition. The operative part of the order passed by the Municipal Commissioner is reproduced for better understanding as follows.

1 "Lily ponds and adjacent deck areas should be demolished or equivalent area of upper floors be demolished, if these are to be retained by the owner, by working out the revised FSI computation accordingly. Owner shall exercise this option within a period of six weeks.

2 If the 11th floor can be constructed within the permissible FSI, the same may be regularized by charging premium/penalty as per policy. Else the same shall be demolished.

3 Extended portion of toilets beyond approved plan shall be demolished.

4 Respondent developer shall pay security deposit for the areas under deck parking and manoeuvring areas based on the stamp duty ready reckoner rates of developed land, as a deterrent against possible misuse in future. No occupation permission or water connection shall be granted to the building unless the said deposit is paid to the Corporation."

3.So far as the Writ Petition Nos.1806 of 2011 and 1807 of 2011 are concerned, the same are filed by the respective flat purchasers of the building in question. The said order of the Commissioner is also subject matter of challenge in both these petitions on various grounds, one of the grounds taken by the flat purchasers is that the order in question affects their rights, the said order could not have been passed without hearing the concerned purchasers.

4.The said building is located on a plot bearing CTS No.6B, Village Vile Parle at Gulmohar Road, J.V.P.D.Scheme, Vile Parle (W), Mumbai. The developers have carried out construction upto the 10th floor. The respondent No.3 of Writ Petition No.1884 of 2011 filed a Public Interest Litigation i.e. Writ Petition (L) No.2442 of 2010 before this Court alleging that the part of the construction carried out by the developers is contrary to the DC Rules and that it is illegal and the same is required to be quashed and set aside. The said petition was opposed by the Corporation. However, at the time of hearing of the petition, the learned counsel for the respondent No.3, who is the original petitioner, requested that the averments made in the petition may be treated as a representation to the Corporation. The said petitioner was permitted to make appropriate representation annexing a copy of the writ petition to the appropriate authority and the appropriate authority of the Corporation was directed to dispose of the same within the stipulated time and in accordance with law. This Court clarified in the order that the Court has not expressed any opinion on merits of the matter. The said petition was accordingly disposed of on the aforesaid lines.

5.Subsequent to the said order, the Municipal Commissioner after hearing the petitioner-developers as well as the respondent No.3 herein, passed the impugned order. On behalf of the petitioner-developers, a stand was taken before the Commissioner that the construction is carried out as per the approved plan and as per DC Rules and the plans were sanctioned by the Corporation earlier and in view of the same, the representation made by the respondent No.3 is required to be rejected. In so far as the construction of 11th floor is concerned, a stand was taken by the petitioners that the Corporation has approved the plan of 11th floor subject to furnishing NOC from Civil Aviation Authority. Application for seeking NOC from Civil Aviation authority was made by the petitioner about six months back and the Civil Aviation authority (Delhi Office) gave NOC on 17-05-2011 and by Mumbai Office on 07-06-2011. However, notice for demolition is already given regarding the 11th floor and the developers undertook to demolish the same in February 2011 and demolished roof slab at many places. On behalf of the developers, a prayer was made that as per Circular dated 04-02-2011, the 11th floor may be regularized, since the NOC from Civil Aviation Authority is received.

6.The Municipal Commissioner gave hearing to the petitioners in W.P.1884/2011 as well as to the respondent No.3, who has filed the Writ Petition against the aforesaid constructions. The Commissioner has given his findings which starts from para 4.1 onwards in his order. So far as Lily Ponds and Deck areas are concerned, the Municipal Commissioner has considered DC Regulation No.30(ii)(a), which permits permissible features in open space as per the said DC Regulation. As per the order of the Commissioner, the features mentioned in the said rules, should only on the ground floor, beyond the required open spaces and they should be uncovered. The Commissioner found that there is no mention of Deck area in the D.C.Regulation 30 or 35(2). It is held by the Commissioner that as per the DC rules, it is clear that deck/part terraces provided near habitable rooms should be a common area, which shall be accessible from the common staircase. It is found that this is not a case in which deck is provided to each flat for exclusive use near the lily pond and the same is not permitted in the DC regulation as the lily ponds and the deck areas are also duly covered and are not open to sky. It is also found that as per the intent and spirit of the DC regulations, lily ponds area on every floor is not permissible, except on the ground floor. The Commissioner accordingly found that the covered deck areas at upper floors, exclusively attached to flat, cannot be allowed free of FSI to individual flats owners. He relied upon Regulation 6(1) of DCR, which provides that the construction to be in conformity with Regulations and neither the grant of permission nor approval of the drawing and specifications nor inspection by the Commissioner during erection of the building, shall in any way relieve the owner of such building from full responsibility for carrying out the work in accordance with these regulations. The Municipal Commissioner found that since there is no provision under DC Regulations to allow these areas free of FSI, these are required to be counted in FSI. Accordingly, Lily ponds and deck areas are permitted to be counted in FSI. On that basis, it is directed by the Commissioner that these areas should be demolished or equal areas of upper floors be demolished and if these areas are to be retained by the owners, working out the revised FSI computation accordingly.

7.Since the issue regarding 11th floor is not in dispute at this stage, it is not required to be dealt with. The Municipal Commissioner also held that the extended portion of the toilets beyond approved plan should be demolished. So far as the car parking at every floor level which is considered as deck parking is concerned, the Commissioner held that 196 car parkings have been provided, as against the required parking spaces of 145. Out of these 196 parkings, 99 parkings are proposed on habitable floor levels and 9 parkings are proposed at every fllor level, adjacent to the habitable areas. The Commissioner held that as per DC Regulation 36(5) (a), the parking spaces can be provided "underneath the building in basement, within its stilted portion or on upper floors. Though these areas are permissible free of FSI, the intent and spirit of the DC Regulation is clear and as per the same, parkings on upper floors should be exclusively parking floors and not in combination with the habitable area with a view to avoid any likely misuse by merging of such areas into habitable areas. It is held that parking on the habitable floor is not specifically prohibited under Regulation 36(5)(a), in the instant case, there are likelihood of misuse of the said area. On the basis of the said findings, the Commissioner directed that since there is a possibility of misuse of the said deck parking area in future and considering the fact that third party rights are already created, the Commissioner decided to levy security deposit for the areas under deck parkings and manoeuvring areas, based on the ready reckoner rates of developed land to act as a deterrent against possible misuse in future. Accordingly, no occupation certificate and water connection shall be granted unless the said deposit is paid by the developers. Regarding the recreation ground, it is found that the same is in consonance with the DC regulations. The Commissioner passed the order in connection with lily ponds and deck areas, demolition of the 11th floor, regarding the removal of extended portion of toilets beyond the approved plan, and charging of security deposit so far as the deck parkings area is concerned. It is the aforesaid order passed by the Commissioner which is impugned by the developers as well as by the individual flat owners, who has agreed to purchase the respective flats.

8.So far as Writ Petition No.1884 is concerned, the learned counsel Mr.Samdhani for the petitioners vehemently submitted that the construction of lily ponds as well as the adjacent deck areas is in consonance with the DC regulations and as per the sanctioned plan. It is submitted that since the Corporation had already granted such permission, subsequently, such decision/permission cannot be reviewed or recalled by the subsequent Commissioner as he has no power under the Mumbai Municipal Corporation Act or under the Development Control rules to review and set aside the order already passed by the earlier Commissioner. It is submitted by the learned counsel for the petitioners that the construction of the lily ponds cannot be counted in the total FSI as it is merely an architectural feature, which is permitted in Regulation 35(2) of the DC rules, for which the special permission was granted by the Corporation earlier under Regulation 64(b). It is submitted that when the respondent No.3 filed the Writ Petition, on behalf of the respondent Corporation, a reply was filed by Mr.Pramod Bhangale, wherein a stand was taken that the construction carried out by the petitioners is in consonance with the DC rules and there is no illegality. The learned counsel for the petitioner submits that the construction in question is as per approved plan and when the construction is carried out as per the sanctioned plan, no fault can be found with the construction in question carried out by the developers. It is the contention of the petitioners that hearing was assumed to be on the basis of respondent no.3's writ petition wherein the Corporation has filed the reply supporting the claim of the petitioners and confirmed that the plans were sanctioned as per the Development Control Regulation and the construction was as per the approved plan. Therefore, according to the petitioners there was no issue for the petitioners to answer.

9.The learned counsel for the petitioner submitted that the Commissioner himself found that the deck parking is not in variation of the sanctioned plan and against the Rules and in that view of the matter, he has no jurisdiction to pass any order to security deposit on an apprehension that the same area is likely to be misused in future.He submits that the said order of the Commissioner is therefore, without any jurisdiction and is liable to be set aside. He has relied upon the provisions of Section 53(1) of the M.R.T.P.Act. It is submitted that such order could not have been passed after the construction is completed and merely on the ground of apprehension of misuse of the said deck parking area. He submits that in any case, such deposit can never be treated as a premium for any other purpose. In a given case, even if it is presumed that the deposit can be recovered, there cannot any direction of deposit of the amount, as it is to be refunded after a particular time limit (Section 22(m) of the M.R.T.P.Act. The learned counsel for the petitioners submitted that the order of asking the petitioners to give security deposit, on the face of it, is without any jurisdiction and is required to be set aside. It is further submitted that in view of the requirement under Regulation 5(3) wherein the procedure for obtaining development permission and commencement certificate are postulated and they have to be followed at the time of sanctioning the plan and such security deposit is required to be returned back as per the time limit prescribed under the Rules. It is submitted by th learned Counsel for the petitioners that Regulation 5 of the DC Rules, is applicable only at the time of giving development permission and such power cannot be exercised subsequently. Regarding lily ponds, it is submitted that the same is in sanctioned plan and sanctioned plan provides the dimension and depth. It is submitted that the depth of the lily pond is only four feet and therefore, it is impossible to believe that it is a swimming pool. It is submitted that it is nothing but an architectural feature and projection.

10.Submissions of the learned counsel for the petitioners in WP No.1806 of 2011 Mr.Kapadia, the learned counsel for the petitioners in WP No.1806 of 2011, supported the arguments of Mr.Samdhani. He submitted that the flat purchasers have invested considerable amount after taking loans from the various banks and when the Commissioner was aware of the said fact, as he has mentioned about third party interest, he was required to give hearing to the petitioners especially when he is exercising quasi judicial powers by cancelling the plan sanctioned by the earlier Commissioner. The learned counsel for the petitioners submits that the order of the Commissioner is against the principles of natural justice. It is submitted that the order in question is not under Section 51 of the M.R.T.P.Act, and it is under DC Regulation 6. It is submitted that the construction of the lily ponds can never be treated as a swimming pool simply because some water is stored in it. He argued that even otherwise, the Corporation is estopped from taking contrary stand than what it has taken in the earlier petition. The learned counsel for the petitioner submits that the the flat purchasers have already availed considerable loan and a prudent purchaser taking into account the fact that the plan of the building to be constructed is already sanctioned by the Corporation, they invested large amount . There is no good ground to cancel the earlier permission granted by the predecessor of the Commissioner. Alternatively, it is submitted that since the petitioners have invested huge amount and considering the fact that 11th floor is still under construction, even if FSI is required to be adjusted, the same required to be adjusted from the 11th floor. He submits that the Commissioner has no residuary power in reviewing the order as per law.

11.Submissions of the learned counsel for the petitioners in WP No.1807 of 2011 Mr.Thorat, the learned counsel appearing for the petitioners submitted that the Commissioner had no jurisdiction to pass such an exemplary order while disposing the representation in question. He submits that the directions given by the Commissioner in this behalf, are therefore, contrary to law and without any authority of law. According to him, at the most, the Commissioner could have said that in his opinion, the construction in question is not in conformity with the DC Rules and he cannot give further directions in this behalf, as he has no authority to pass any order on the said representation. He relied upon the provisions of Section 51 of the M.R.T.P.Act. Mr.Thorat further submitted that the Commissioner should have also issued notices to the respective flat owners and in the notices, it should have been specifically mentioned as to on what basis the construction in question is offending by giving particulars. He further submitted that under Section 51 of the M.R.T.P.Act, the Commissioner is expected to pass a speaking order dealing with the point whether the development permission can be cancelled or revoked when substantial construction is carried out. He submitted that the Commissioner has no power to review earlier order which can be said to be quasijudicial order and unless such powers are available, the Commissioner has no authority to revoke the earlier order.

Submissions on behalf of the respondent-Corporation :-

12.Mr.Singhavi, in his turn, has argued that the Commissioner has the powers under Section 21 of the General Clauses Act, to pass appropriate order by which the Commissioner can review the earlier order. He submitted that the earlier order of sanctioning the plan can be said to be an administrative decision, which can be changed or revoked at any stage if it is found that the construction in question is not carried out as per the sanctioned plan. He submits that in any case, when the High Court gave directions to the Commissioner to take appropriate decision on the representation of the respondent No.3 and when the Commissioner on that basis, ultimately came to the conclusion that the construction in question is illegal, he is duty bound to pass consequential order of demolition, otherwise, it may amount to continue the illegal action in perpetuity. He further submits that earlier petition which was in the nature of PIL, the Court directed the Commissioner to take decision, the Commissioner was duty bound to take decision as per the record of the case.He submitted that the power of the Commissioner to take appropriate decision in accordance with law was not challenged by the either side in the writ petition at the when the Court passed an order. He further submitted that the point of maintainability should have been raised at the earliest and not at the subsequent stage, as it may amount to approbate and reprobate as the petitioners took chance by appearing before the Commissioner and since the decision is against it, they are raising the point of jurisdiction of the Commissioner. He submitted that in any case, in view of the order of the High Court to decide the representation, the Commissioner has no other alternative but to decide the same in accordance with law. He relied upon the Halsbury's principle of 'reasonableness'.He further submitted that the inference of the Commissioner that the deck parkings area are likely to be misused, is a proper apprehension especially when the builders are in the habit of violating the rules, as can be seen that the toilet portion was extended beyond the approved plan. He submits that the Commissioner has passed balanced order after keeping the equity. He submitted that as per DC rule 35(2), certain area is excluded from the FSI, such as architectural features. Whether it is an architectural feature or not, is the question which is required to be decided by the Commissioner and it is not open for the Court to decide the same and therefore, it is free from FSI. It is submitted that the earlier Commissioner passed an order under Regulation 35(2) granting special permission on 08-07-2009. The said order of the Commissioner is contrary to the law. He submitted that the order passed by the earlier Commissioner was administrative in nature. He further submits that then also, it should be in conformity with the principles of natural justice and therefore, the developer was heard and after perusal of the record, the impugned order is passed. He submitted that since the decision of the earlier Commissioner is wrong, the present Commissioner has passed the impugned order setting aside the earlier decision. He relied upon Rule 6 of the DCR.

13.In so far as the affidavit-in-reply filed by the Corporation in an earlier petition is concerned, the learned counsel for the respondentCorporation submitted that it was merely filed to oppose the petition and therefore, it cannot be said that the Commissioner has taken contrary stand to the said affidavit. Regarding the deck parkings area are concerned, he has relied upon Regulation 2(47) DC Rules. He also relied upon the provisions of the Maharashtra Ownership Flat Act, 1963, in order to point out the meaning of the word 'Garage'. He submitted that the garage is a part of a building which is a parking place. He submitted that in any case, the Commissioner has passed the balanced order regarding giving option to the builder regarding additional FSI from 11th floor which is under consideration. He relied upon Regulation 2(47) of the DC Rules and relied upon the Judgment of the Supreme Court in the case of Nahalchand Laloochand Private Ltd. V/s. Panchali Cooperative Housing Society Ltd. (2010) 9 SCC 536 : [2010(6) ALL MR 430 (S.C.)], which is in connection with the Maharashtra Ownership of Flats Act. He submitted that in view of the said judgment, the garage is a portion of flat and so it cannot be included in FSI. He submitted that so far as the order of security deposit is concerned, it is permissible as per Section 27 of the M.R.T.P.Act and according to him premium and deposit are the same. He relied upon the decision of the Supreme Court in M.I.Builders Pvt. Ltd. V/s.Radhey Shyam Sahu and Ors. AIR 1999 SC 2468 He submits that in any case, since the builder has committed violation of the DC Rules, this Court cannot exercise its extra ordinary jurisdiction and may relegate the petitioners to file appropriate civil proceedings if they so desired, as this Court is not bound to exercise powers under Article 226 of the Constitution of India, considering the conduct of the party do not justify exercising such powers. He submitted that in view of increasing density of population, construction contrary to FSI provisions is not to be permitted.

14.Mr.Vaibhav Krishna, learned counsel appearing for the respondent No.3, submitted that the lily ponds cannot be said to be an amenity and an architectural design or feature, as it is in the nature of swimming pool and the Commissioner has rightly passed the impugned order and even otherwise, it will create bad precedent so far as other building is concerned. He submitted that the respondent No.3 has locus standi to submit before this Court in the present petition, as the Commissioner has taken decision on the basis of the representation of the respondent No.3, though he admits that the individual rights of the respondent No.3 have not been violated and he has no personal interest in the matter, but he has right to audience in view of the fact that the Commissioner has passed the order on the basis of his representation. He relied upon the relevant provisions of the DC rules to substantiate his arguments.

15.Mr.Samdhani, the learned counsel appearing for the petitioners in rejoinder, submitted that the deposit in question can be said to be a premium and deposit is not provided under Section 22(m) of M.R.T.P.Act. The learned counsel also argued that the Commissioner had no power to set aside or review the earlier order passed by the earlier Commissioner, especially when he is exercising quasi judicial powers and unless there is expressed provision to review such order, he could not have passed the impugned order merely because the respondent No.3 has some grievance regarding the construction in question. It is submitted that the respondent No.3 is unnecessarily harassing the petitioners from the beginning. He submitted that the order of the Commissioner cannot be said to be an administrative order and it is quasi judicial order as the civil rights of the parties are determined. He therefore, submitted that the order is to be considered as a quasi judicial order and Section 21 of the General Clauses Act, cannot be invoked. Regarding the decision of the M.I.Builders Pvt. Ltd. V/s. Radhey Shyam Sahu and Ors. AIR 1999 SC 2468, it is submitted that in the said case, the entire building was found to be illegal and the facts of the instant case are totally different. Regarding the decision of this Court delivered by Justice Wadhva, it is argued by Mr.Samdhani that in a case where a party suppressing the fact, the Court may not entertain the petition under Article 226 of the Constitution of India. He submitted that in the instant case, there is no suppression as the petitioner has pointed out all the facts before this Court and has challenged the order passed by the Commissioner and since the Commissioner has passed order contrary to the law, the petitioner can invoke Article 226 of the Constitution of India, especially when the earlier petition was filed by the respondent No. 3 wherein he was permitted to withdraw the petition with a view to make representation and since the Commissioner has passed the order in view of the said order, the present petition is maintainable and there is no suppression of material and all facts have been disclosed as per the record.

16.In rejoinder, Mr.Kapadia, the learned counsel for the petitioners in WP No.1806 of 2011 argued that the order of the Commissioner is not an administrative order. Corporation has filed the reply supporting the claim of the petitioners and confirmed that the plans were sanctioned as per the Development Control Regulation and the construction was as per the approved plan. Therefore, according to the petitioners there was no issue for the petitioners to answer whether order passed by the earlier Commissioner can be reviewed by the subsequent Commissioner. He relied upon a ruling of the Supreme Court reported in Province of Bombay Vs.Khushaldas S.Advani,reported in AIR (87) 1950 Supreme Court,222.

17.Mr.Thorat, in the rejoinder, has argued that the Commissioner had three options (i) to reject the application made by the respondent No.3 (ii) to issue notice to the individual flat owners and to the petitioners before taking any coercive action (iii) by giving appropriate notice in which it should have been clearly pointed out that in the notice as to which rules are violated by the developers. Mr.Thorat further submitted that no specific grounds are mentioned as to on what basis the impugned order is passed for taking such action and the Commissioner has passed the impugned order on the basis of general averments made by the respondent No.3 in his representation and on the said ground, the impugned order should be set aside as it is illegal and can be said to be in violation of principles of natural justice, as the petitioners may not know as to on what ground, he is required to defend the case. He submitted that the Commissioner should not have made further observation about the demolition, except recording the finding regarding the alleged construction, as it is not open for the Commissioner to pass any consequential order in this behalf and the Commissioner cannot pass any executable order in this behalf. He submitted that since there is appropriate provisions in Section 51 of the M.R.T.P.Act, the provisions of Section 21 of the General Clauses Act, is not applicable.

18.Lastly, Mr.Singhavi, submitted that the provisions of Section 44 and 45 are in connection with the application for permission for development and the grant or refusal of permission. Section 47 of the Act, deals with the provisions of appeal and since appeal is provided, it is an administrative order regarding sanctioning or refusal of the plan. He relied upon the decision of the Supreme Court in the case of Kham Chand V/s. Union of India, 242 SC Reports (1963).

19.We have heard the concerned Advocates appearing in the matter at great length and have gone through the voluminous documents forming part of the compilation and have also considered the relevant case laws cited before us by the learned counsel for the respective parties. It is required to be noted that the Commissioner has ultimately passed the order on the basis of the representation of the respondent No.3 and in view of the earlier order dt.9/2/2011 of this Court in W.P.2442/2010, the Commissioner after considering the rules and regulations passed the impugned order in question. As per the directions of this Court the Commissioner was required to take decision according to law. Meaning thereby that the Commissioner was required to take fresh decision as to whether the Construction is as per the Development Control Regulations and as per the Act. The Commissioner, therefore, was required to go to the root of the matter and take such decision in view of the directions given by this Court. In our view since the Commissioner was required to take decision in view of the order passed by this Court in earlier Writ Petition, whether the first decision regarding sanctioned plan could be said to be an administrative order or quasi judicial order is not of much consequence as ultimately the Commissioner was required to take fresh decision in view of the directions given by this Court. In a given case in public interest, the Court can direct the Commissioner to take fresh decision or may even direct the Commissioner to demolish the illegal structure and in compliance the Commissioner is required to take decision and to find out whether the construction in question was as per the Development Control Regulations and in accordance with law. In a given case, When the Court directs to authority to take a decision, it is the bounden duty of the said authority to take decision in accordance with law and as per the record of the case. In accordance with law means within his powers and he has to state specifically if any illegality or irregularity is occurred at any stage of the process of the development which includes the proposal, approval and construction. So far as the ruling of the Supreme Court in the case of M.I. Builders Pvt. Ltd. V/s. Radhey Shyam Sahu and Ors. AIR 1999 SC 2468, the Supreme Court had given the said directions regarding demolition of the building. Considering the said aspect, it is not possible for us to accept the say of the learned counsel for the respondents that the Commissioner has no power to review the earlier order and that the Commissioner has no independent jurisdiction to review and set aside the order passed by the earlier Commissioner. There are cases that in Public Interest Litigation, this Court gives directions to the Public authority to act in a particular manner and to take decision. Considering the said aspect of the matter, though it is true that normally when the change of Commissioner, the subsequent Commissioner should not normally review earlier orders if there is no specific provision in this behalf. However, in view of the fact that the Commissioner acted as per the directions of the Court by way of representation of the respondent No.3, it cannot be said that he has no power to pass consequential order in case he comes to the conclusion that the construction in question is illegal. It is therefore, not possible to accept the say of the learned counsel for the petitioners that the Commissioner cannot reconsider the order passed by the earlier Commissioner, especially in view of the directions given in an earlier writ petition. It is required to be noted that even before the Commissioner, no point was raised regarding the jurisdiction of the Commissioner to pass such consequential order. On the contrary, the petitionerdeveloper submitted to the jurisdiction of the Commissioner by giving detailed reply and has also submitted his say before the Commissioner. Considering the said aspect, it is not necessary to examine the point in detail as to whether earlier order passed by the Commissioner is a quasijudicial order or administrative order and whether the Commissioner could have subsequently revoked the said order. In view of what is stated above, it is not necessary to examine applicability of Section 21 of the General Clauses Act. In our view, the Commissioner was required to give fresh look to the entire subject matter in view of the directions given by the High Court and to find out whether the construction carried out is as per the provisions of M.R.T.P.Act and Development Control Regulations.

20.Leaned Sr.Advocate Mr.Rohit Kapadia,appearing for Petitioner in WP 1806/2011 relied on the following judgments.

1 Patel Narshi Thakershi and Ors.Vs. Pradyumansinghji Arjunsinghji, reported in AIR 1970 Supreme Court, 1273

2 Smt. Hansa Dattatraya Moodaliar & others Vs. The Pune Municipal Corporation & others, reported in 1998(2) Bom.C.R. 647 : [1997(4) ALL MR 481].

3 Province of Bombay Vs. Khushaldas S.Advani,reported in AIR (87) 1950 Supreme Court,222

21.Learned Sr.Counsel Mr.Thorat appearing on behalf of the petitioners in W.P.1807/2011 relied on the following judgments.

1] State of Bihar Vs.D.N.Ganguly and ors., AIR 1958 Supreme Court, 1018

(On Section 21 of General Clauses Act)

2]G.J. Kanga, Adm. of Municipal Corporation Vs. S.S. Basha, 1992 Mh.L.J.1573

3] State of M.P.Vs.Ajay Singh and Ors.,reported in AIR 1993 Supreme Court, 825

22.Learned counsel on the point whether the order passed by the Authority is quasi judicial or administrative in nature, relied on number of rulings. After going through these rulings overall ratios can be culled out as the power of review is not inherent power, but it must be conferred by law either specifically or by necessary implication, if the order is quasi judicial. It was held that administrative function is called quasi judicial when there is an obligation to adopt the judicial approach and to comply with the basic requirement of justice. Where there is no such obligation the decision is called purely an administrative. On the basis of these rulings, learned counsel for the petitioners advanced their submissions that the power to rescind any notice conferred generally in Section 21 of the General Clauses Act is clearly inapplicable when the order is quasi judicial. We have gone through the case laws cited by the learned counsel appearing for the petitioners, however, these rulings are not helpful to the petitioners in the present matter as the decision given by the Commissioner is distinguishable on the facts. The decision given by the Commissioner is pursuant to the directions given by this Court in the Writ Petitions and the first order of the Commissioner about sanctioning of the plan is an administrative one.

23.Learned counsel Mr.Singhvi on behalf of the Corporation has relied on the following rulings.

1 Ashok Kumar Sahu V.Union of India & Ors. (2006) 6 SCC 704.

2Roshan Deen V. Preeti Lal (2002) 1 SCC 100.

3 Paygonda Surgonda Patil V. Jingoda Surgonda Patil, 1967 BLR 579.

4 Gandhinagar Motor Transport Society Vs. State of Bombay, 1953 BLR 922.

5 K.R. Shenoy V. Udipi Municipality, AIR 1974 SC 2177

6 Bhawarlal Bhandari V. Universal Heavy Mechanical Lifting Enterprises, AIR 1999 SC 246.

7 Manaklal V. Dr. Prem Chand Singhvi & Ors. (S)AIR 1957 SC 425

8 Des Raj V. Union of India & Anr. (2004)7 Supreme Court Cases 753 : [2005(5) ALL MR 103 (S.C.)]

9 M.C. Mehta V. Union of India (2004) 6 SCC 588 : [2005(5) ALL MR 353 (S.C.)]

10 Mysore Urban Development Authority V. Veer Kumar Jain & Ors. (2010) 5 SCC 791 : [2010 ALL SCR 1402]

11 State of U.P. V. District Judge, Unnao & Ors. (1984) 2 SCC 673

12 State of Bombay V. Morarji Cooverji, 1958 BLR 318

13 M.I. Builders Pvt. Ltd.Vs. Radhey Shyam Sahu and Ors. AIR 1999 Supreme Court, 2468

14 He relied on Nahalchand Laloochand Private limited Vs. Panchali Cooperative Housing Society Limited (2010) 9 Supreme Court Cases 536 : [2010(6) ALL MR 430 (S.C.)] to explain the words and phrases "common area,facility, flat and garrage".

15 Mr.Singhvi relied heavily on Jaswant Sugar Mills Ltd.Meerut V. Lakshmichand & Ors. 242, Supreme Court Reports (1963) SUPP, to point out difference between quasi judicial and administrative order and the criteria which is to be satisfied while taking the judicial decision.

24.As pointed out earlier, in view of the directions given by this court, the Commissioner was required to take decision as to whether the construction was as per the Development Control Regulations or not and, therefore, the Commissioner was entitled to take such decision. If ultimately it is found by the Commissioner that the construction was carried out contrary to the Development Control Regulations and even though plans are sanctioned, the same could not have been sanctioned, he can pass consequential order. If the Commissioner do not give further directions, it may amount to perpetuate the illegality. Therefore, no fault can be found in the impugned order so far as taking fresh decision in connection with the construction in question is concerned. However, it is required to be noted that so far as the subsequent decision of the Commissioner is concerned, he was required to hear the concerned parties and the said order can be said to be quasi judicial. In our view since the Commissioner was conscious of the fact that the agreements to purchase were executed by some of the flat owners, in our view, atleast their say was required to be taken into consideration, especially when it is argued by them that even if the FSI is to be adjusted it should be adjusted from the area which is meant for the eleventh floor. In view of the same, in our view, in order to comply with the provisions of natural justice, show cause notice was also required to be issued to the concerned flat owners as the Commissioner himself has observed in the order that the flats have been purchased by some of the purchasers.

25.In so far as the merits of the case is concerned, it is required to be noted that whether the lily ponds in question can be said to be an amenity or architectural features or not is to be decided by the Commissioner. Since the Commissioner was deciding important rights of the parties and his decision is likely to be affected to the flat purchasers and the developers, in our view, this aspect is required to be dealt with in a little more depth by the Commissioner. This Court is not an expert to give opinion on these aspects when section 35(2) is silent on what is architectural feature? Considering the said aspect, in our view, the matter is required to be sent back to the Commissioner to decide the said questions de novo. The Commissioner may accordingly take fresh decision in this behalf and to find out whether it is an amenity and as per the Development Control Rules and in accordance with law.

26.We would like to point out certain legal provisions in respect of Lily pond, deck parking and computation of FSI which are the issues in dispute.

LILY PONDS -

27.The proposal was for the construction of the Lily Pond admeasuring 1.64 x 3.4 mtrs.. Lily Pond and deck area is constructed attached to the flat and it was shown and marked in the proposal dated 30/6/2009. A letter was addressed by the builder to the Executive Engineer, MCGM, Bandra wherein it was stated that as per the requirement of the client Lily Pond alongwith deck has been proposed for every flat beyond the living room area in staggering location on alternate floors to enhance openness and to create natural environment for each flat. A request was made that the said area is to be approved free of FSI. It is required to be decided whether the Lily Ponds being an architectural feature Lily Pond is to be exempted from the FSI? The term architectural feature is mentioned in Regulation 35(2)(c) of the Development Control Regulations for Greater Mumbai, 1991. Regulation 30 is about the construction permitted in open spaces. Regulation 30(ii) (a) reads as follows-

A rockery, well and well structures, plant nursery, water pool, or fountain swimming pool (if uncovered and only beyond the required open spaces as required under these Regulations), platform around a tree, tank, bench, gate, slide, swing, ramp,

A swimming pool, fountain, plant nursery, water pool are permitted in open spaces and free of FSI. In the D.C.Regulations, there is no mention of pond. As per the case of the petitioners, this is neither a swimming pool nor a spa pool or relaxation pool, but it is a pond where the water lilies are planted. It is a decorative feature and, therefore, it is to be treated as an architectural feature. Swimming pool, fountain or plant nursery and water pool are permitted in open space as per Regulation 30(ii)(a). Lily pond provided to each flat is not open to sky. They are covered with the roof which forms a floor of the Lily pond of the upper flat. Thus, it cannot be taken under Regulation 30(ii)(a). Under such circumstances whether Lily pond considering its location, area occupied and the adjacent deck can be covered under either Regulation 30(ii)(a) or 35(2)(c) of the Regulations? The petitioners have denied that the Lily pond is an additional amenity but they emphasised it is an architectural feature. However, in the proposal submitted by them on 30/6/2009 in paragraph 12 they have mentioned about the Lily Pond and deck as an additional amenity for the flat purchaser.

28.Learned counsel for the Corporation has produced copy of agreement entered between Sharavan Builders and the flat purchasers. Our attention was drawn to the scheduleIII appearing on internal page 35 of the agreement where under clause (b) additional amenities alongwith the flat are mentioned as follows.

(b) (1) Lily Pond Deck, etc.

(2) Car Parking Deck,etc.

"Amenity" is defined in Regulation 3(7) which reads as follows.

"Amenity" means roads, streets, open space, parks, recreational grounds, play grounds, gardens, water supply, electric supply, street lighting, sewerage, drainage, public works and other utilities, services and conveniences."

29.We have highlighted all contentions and legal provisions to enable the Municipal Commissioner to appreciate and decide on facts whether Lily pond is an amenity,or an architectural feature or a pool so that it can be free of FSI.

CAR DECK PARKING

30.Car parking is excluded from the FSI computation. As per Regulation 36 parking space is a common area. It was submitted that following spaces are allowed under Regulation 36(5)(a), which reads thus-

"Parking Spaces-Where to be accommodated:The Parking spaces may be provided-

a] underneath the building, in basements within its stilted portion, or on upper floors;"

31.Deck parking as submitted by the learned counsel for the petitioner and the Corporation it is recognized and approved by the Corporation as a solution to the scarcity of the space for parking. We do accept the reality that a number of vehicles per family in metro cities has increased more than one. Therefore,it has become obligatory for both the builder and the Planning Authority to find and to recognize new methods/types of parking areas. It is necessary for the builder/developer for optimum use of the space to introduce innovative ideas of space management suitable to the growing population of metro cities and it's changing economic complexion.

32.Be that as it may, it is to be in conformity with the rules and regulations and it should not violate the D.C.Regulations. Parking can be provided (as per Regulation 36(5)(a)) even on the upper floors. The word 'deck parking' is not in the D.C.Regulations. However, such parking is approved by the Corporation for the reason mentioned above. In the present case the deck parking is attached to the flat and also includes manoeuvring area. In the present matter the builder has submitted a proposal for parking spaces for 9 cars. Regulation 36(1)(ii) says about the general space requirement about parking. As per Regulation 36(1)(ii) the type of motor vehicle is given and the minimum size of parking space is given 2.5 mtrs.x 5.5.mtrs.. It is pointed out by the learned counsel appearing for the respondent Welfare Society that the area of flat is 1900 sq.ft.and area of parking and manoeuvring area is more than the flat. So far as the deck parking is concerned, on every floor, flat areas are 198.32 sq.mt., 185.05 sq.mt. And 177.21 sq.mt against the car parking area of 165.55 sq.mt, 268.05 sq.mt and 192.22 sq.mt., respectively including manoeuvring around area and area of lift lobby. In the affidavit filed by Mr.Bhangale, on behalf of the Municipal Corporation in this petition shows that the area of the parking space and manoeuvring space is situated in such a way that there is possibility that it might be misused.

33.We accept the submissions of the petitioners that deck parking was shown in the plans and it was approved by the Corporation i.e. Executive Engineer and finally it was sanctioned by the erstwhile Municipal Commissioner. Thus, the stand taken by the Corporation that the area will be misused in future is not sustainable in law as speculation cannot be a ground for penalty. Similarly apprehension is expressed that the fact that entire parking space and the manoeuvring area is shown in the plan in such a manner that it is likely to be misused. Thus, all the facts ought to have been considered by erstwhile Executive Engineer and the Municipal Commissioner when they sanctioned the plan.

34.It can be said that deck parking is an another type of parking and so it is covered under the definition of parking and then exempted from F.S.I.. computation. Garrage is a place of parking which is attached to a flat and it is exempted from F.S.I.. Garrage is a closed area. Deck parking is also a closed area with four walls and roof. Generally garrage admeasures about 10x15 sq.ft. Or 12 x 20 sq.ft. . Regulation 36 of the Development Control Regulations elaborates the details of a space required for parking . Size of parking for motor vehicles or transport vehicles is also mentioned. In the said regulation specification of deck parking is not given. Thus, generally four cars can be parked in area minimum 400 sq. ft. or maximum 600 sq.ft. It may be demanded that a flat occupant owns 12 cars, so he wants a garrage of 1200/1800 sq.ft.. Whether such parking can be provided at stilt or upper floors? Whether it is to be provided as deck parking and free of FSI? Whether the Commissioner under his discretionary power may grant such area free of FSI? We would like to point out that when there are loopholes, advantage is always taken by the interested parties which may frustrate the object and policy of FSI, and ultimately may affect adversely the civic amenities at large for which the corporation is bound to provide. Though there are certain irregularities, there is a provision in the Corporation Act to regularise such acts. We agree with the petitioner that the Commissioner has not given specific notice and speaking order in respect of the damages which may be caused.

35.The two major factors i.e. location and FSI determine the price of a premises. It is to be noted that ratable value of the flat is fixed on the basis of the location, floor and also FSI, etc.of the flat. Therefore, under the D.C.Regulations a list of the items/structures is specified under relevant provision of the D.C.Regulations which is not to be computed in FSI. Beyond this, under the D.C.Regulations, no area can be exempted from the computation in the FSI. This affects adversely the revenue of the Corporation. We have already mentioned in the beginning that this is not a case where the construction is not as per the sanctioned plan, but this is a case where the construction is as per the plan, but the question involved is, whether the approved plan is inconsistent with the provisions of the D.C.Regulations?

36.In so far as the deck parkings is concerned,it is true as argued by the learned counsel for the petitioners that there is no provision under the DC rules to charge security deposit at a subsequent stage as it is clear that the deposit is to be taken under Section 22(m) of the M.R.T.P.Act, at the initial stage while granting development permission and commencement certificate, especially when the earlier Commissioner has granted special permission under the DC Rules in this behalf.

37.Much is argued about discretionary powers of the Municipal Commissioner under Regulation 64. Scope of Regulation 64 is not unlimited. Regulation 64 vests discretionary powers in the Municipal Commissioner as per Regulation 64(a)(i)(ii)(iii)(iv). Case of giving permission of Lily Ponds or deck parking cannot be covered under Regulation 64(a)(i)(ii)(iii)(iv). As per the submissions discretionary powers are used by the Municipal Commissioner under Regulation 64(a) (i)(ii)(iii)(iv) and 64(b) reads as follows.

Regulation 64-Discretionary powers-(a) In conformity with the intent and spirit of these Regulations, the Commissioner may

[i] decide on matters where it is alleged that there is an error in any order, requirement, decision, determination made by any municipal officer under delegation of powers in Regulation or interpretation in the application of these Regulations;

[ii] interpret the provisions of these Regulations where a street layout actually on the ground varies from the street layout shown on the development plan;

[iii] modify the limit of a zone where the boundary line of the zone divides a plot with the previous approval of Government ; and

[iv] authorise the erection of a building or the use of premises for a public service undertaking for public utility purposes only, where he finds such an authorisation to be reasonably necessary for the public convenience and welfare, even if it is not permitted in any land use classification.

(b) In specific cases where a clearly demonstrable hardship is caused, the Commissioner may for reasons to be recorded in writing, by special permission permit any of the dimensions prescribed by these Regulations to be modified, except those relating to floor space indices unless otherwise, permitted under these Regulations, provided that the relaxation will not affect the health, safety, fire safety, structural safety and public safety of the inhabitants of the building and the neighbourhood.

38.Thus, in order to use the discretionary powers under section 64 (b) it is necessary for the party to show that there is demonstrable hardship to the flat owners or the developer and if it is so, then special permission to modify the dimensions prescribed by the Regulations can be given but that relaxation should not affect health, structural safety of the building and the other flat owners and also public safety of the residents of the neighbourhood. There is another rider besides these two conditions in use of discretionary powers i.e. the dimensions prescribed by these regulation to be modified except those relating to floor space indices unless otherwise permitted under the Regulation. The modifications in respect of FSI is an exception unless otherwise permitted under the Regulation. This rider cannot be read in isolation. The rider is to be read in association with "there should be demonstrable hardship". Thus, if any demonstrable hardship is faced, then only the discretionary power can be used by the Municipal Commissioner. Thus in purport of Regulation 64(b), can the present case in respect of giving permission to Lily Ponds and deck parking be considered as covered under the Regulation? The Municipal Commissioner is required to deal with this aspect while deciding on Lily Ponds and deck parking.

39.So far as the order of the Commissioner regarding the security deposit is concerned, it is required to be noted that if there is any security deposit, naturally it is required to be refunded. If it is to be treated as premium, as argued by Mr.Singhvi, there is no question of returning the same, as there is no provision for refund of premium under the Development Control Regulations. If it is directed to be refunded, such an order can be passed at the stage of granting C.C.or even at the later stage as the question is required to be decided by the Commissioner as per the provisions of the Act and Regulations. What was passing in the mind of the Commissioner cannot be decided by us and the same is to be decided by the Commissioner. The Commissioner is required to take in mind the provisions of the DC Rules in order to find out whether such deposit can be refunded or not. Simply because if construction is contrary to the sanctioned plan, whether the Commissioner can pass such an order that it is likely to be misused in future, is the question which is required to be decided by the Commissioner. This aspect is also required to be decided by the Commissioner de novo.

40.As we have already dealt with, it would be just and proper to direct the Commissioner to have say of the flat owners before he takes fresh decision on the basis of this order. It may be true that the Commissioner may not have knowledge about the contents of such agreement, but atleast he knew that the third party interest is created and ultimately the affected persons are the flat purchasers. No order can be passed which may have civil/evil consequences without hearing to such affected persons. In view of the same, we direct the petitioners to nominate one person on their behalf who may represent the case and on behalf of the flat purchasers and it is not necessary for the Commissioner to give hearing to each and every flat purchaser. Considering the said aspect, the Commissioner is directed to hear one of the representative of the flat owners as well as the respondent No.3 before taking decision as indicated in the order. The parties may initially appear before the Commissioner on 5th January,2012 between 11.00 a.m. to 1.00 p.m. and thereafter, appropriate date can be given for giving hearing and after hearing the concerned parties, the Commissioner may take decision expeditiously and in any case, within a period of four months, as there are voluminous documents on record and in view of the ensuing Municipal Election. The Commissioner is required to take into account various provisions of D.C.Rules and the submissions of both the sides as well as the record of the case.

41.It will be open to the Commissioner to call for any further information from the parties and even for calling necessary agreements and to consider the contents of such agreements entered into by the flat owners with the builders. The Commissioner to pass appropriate order as deemed fit and in accordance with law and the Commissioner is free to take decision as he deemed fit as per law and it should not mean that we have expressed any opinion on the merits of the case and such decision should be strictly in accordance with law, which may include whether the Commissioner has any such power of asking deposit in a subsequent stage and whether it is permissible, as well as the effect of granting special permission under the DC rules and whether the construction of lily ponds can be said to be an architectural features. All these aspects are left for the fresh decision of the Commissioner as per law.

42.In view of what has been stated above, the impugned order of the Commissioner is set aside and the rule is partly made absolute to the aforesaid extent accordingly.

Ordered accordingly.