WRIT PETITION (L) NO. 2317 OF 2019

19th December 2019

Petitioner Counsel: Mr. V. Y. Sanglikar Ms. Vaishali Ugale
Respondent Counsel: Mr. Anil Sakhare Rupali Adhate Mr. Milind Sathe Mr. Simil Purohit Mr. Bhushan Deshmukh Ms. Jasmine Rachalia Aryan Srivastava M. Mandhale
Act Name: Constitution of India, 1950 Mumbai Municipal Corporation Act 1888 Maharashtra Regional & Town Planning Act, 1966 Development Control Regulations, 1999

Section :
Section 22 Maharashtra Regional & Town Planning Act, 1966

Cases Cited :
Para 90: Rajendra Thacker And Ors. Vs. Muncicipal Corporation of Greater Mumbai And Ors., 2004 (4) Bom CR 1
Para 91: Ikram Suleman Qureshi Vs. Mumbai Building Repairs and Reconstruction Board And Ors., 2011 (3) All MR 61
Para 92: United India Insurance Company Limited Vs. Orient Treasures Private Limited, (2016) 3 SCC 49
Para 92: Vijay Narayan Thatte And Ors Vs. State of Maharashtra And Ors, (2009) 9 SCC 92
Para 92: Home Secretary, UT Of Chandigarh Vs. Darshjit Singh Grewal And Ors., (1993) 4 SCC 25
Para 93: Associated Provincial Picture Houses Ltd Vs. Wednesbury Corporation, (1948) 1 KB 223

JUDGEMENT

G. S. Patel, J.

1. The present Writ Petition is fled under Article 226 of the Constitution of India. It raises distinct issues pertaining to the development of a large complex on the Andheri-Kurla Road (Sir Mathuradas Vasanji Road) in Andheri (East), Mumbai 400 093.

2. The circumstances in which this Petition came to be fled, listed and fnally disposed of require some mention at the forefront.

3. The same Petitioners has earlier fled Writ Petition No. 1502 of 2013. This was listed on 16th July 2019 along with two Notices of Motion for interim reliefs before the Division Bench of which one of us (SC Dharmadhikari J) was a member. The matter was argued for some time, after which Mr Sanglikar, learned counsel for the Petitioners, said that his clients desired to challenge a recent order of 29th June 2019 passed by the Municipal Commissioner of the Mumbai Municipal Corporation. The Court suggested that a further amendment would only complicate the issue and would burden the record. The Court therefore allowed the Petition to be withdrawn with liberty to fle a fresh Petition challenging the 29th June 2019 order. There was a previous order of 26th June 2013 and a further order of 7th January 2016. We allowed those orders to continue for a period of four weeks and kept all contentions open. The Petitioners then fled the present Petition.

4. The order of 26th June 2013 reads thus:
“Mr Kamdar, the learned counsel appearing on behalf of respondent Nos. 5 and 6 makes a statement that pending admission respondent Nos. 5 and 6 will not put-up any construction on the portion of the property described as “Excavated Road” on the Plan-Exh.G to the Petition. He clarifed that respondent Nos. 5 and 6 propose connecting the commercial buildings on either side of this portion at the 2nd foor level. This construction is not likely to take place in the near future. Hence, the above statements are accepted. Any construction put-up hereafter shall be without claiming any equities.
2. S.O. to 24th July 2013 for admission.”

5. The order of 7th January 2016 says:
“Heard learned Counsel appearing for the petitioners, the learned Senior Counsel appearing for the respondent No. 5 and the learned Counsel appearing for the respondent Nos. 1 to 4. Considering the issues raised in the writ petition, it requires fnal hearing. Accordingly we issued Rule. Concerned Advocates on record waive service. By way of interim relief, we direct that it will be open for the 5th Respondent to carry on further construction at its own risk and subject to fnal outcome of this petition. However, the application which may be made by the respondent No.5 for grant of occupation certifcate shall not be decided by the Municipal Corporation without seeking leave of this Court. It will be also open for the respondent No.5 to apply for similar leave.”

6. The present Petition came to be fled on 6th August 2019. We will turn to its prayers shortly. The matter was listed before us on 19th August 2019 when we adjourned it to 17th September 2019 for admission. We declined to grant any ad-interim reliefs on 19th August 2019. The Petitioners preferred a Special Leave Petition (Civil) No. 2073 of 2019 against that order of 19th August 2019 adjourning the Petition. The Special Leave Petition was disposed of 6th September 2019. The Supreme Court passed the following order:
“This special leave petition is directed against the order dated 19.08.2019 whereby the matter was only adjourned for 17.09.2019. We would normally not entertain any petition against such an order but the prayer is that the occupation certifcate should not be granted till the High Court takes up the matter on merits.
The matter is listed on 17.09.2019 before the High Court and we would not like to express any opinion on the merits of the case. We, therefore, dispose of this petition with the following directions:
(1) That any occupation certifcate already issued shall continue to remain in operation subject to the fnal disposal of the writ petition.
(2) No fresh occupation certifcate shall be granted till 17.09.2019 on which date we request the High Court to pass a reasoned order deciding the prayer for grant of interim relief, on way or the other.
Pending application (s), if any, stands disposed of.”

7. The matter was then listed on 17th September 2019, when we made the following order:
“1. When this writ petition was placed before us today and our attention was invited to the order passed by the Hon’ble Supreme Court in Special Leave to Appeal (C) No. 20273 of 2019 dated 6th September, 2019 directing that the writ petition should be placed for hearing both sides on interim relief, we requested both sides to give their consent so that the writ petition itself can be disposed of fnally by avoiding repetition of the same arguments.
2. We also requested both sides that they shall not place any afdavit or any document on record in addition to the afdavit-in-reply of the contesting respondents as also the afdavit-in-rejoinder of the petitioners tendered today.
3. After taking instructions from the petitioners’ representative present in Court, Mr Sanglikar says that the petitioners are agreeable to the course suggested by this Court. They are agreeable to have this writ petition itself disposed of fnally by the order that we will pass after hearing both sides. He also agreed, after taking instructions, to the other course suggested, namely, not to fle any further afdavit in addition to what is already on record. Therefore, neither parties shall fle any further or detailed afdavits or tender compilations on record.
4. The writ petition will be disposed of with the available material on record and with the consent of both sides, fnally.
5. Stand over to 20th September, 2019.
6. The ad-interim arrangement, in terms of the Hon’ble Supreme Court’s order, to continue till then.”

8. Then the matter was listed on 20th September 2019, 26th September 2019 and 27th September 2019. On the last date we stood it over to 7th October 2019. Arguments commenced and these concluded on 10th October 2019 when we reserved judgment.

9. The prayers in the Writ Petition are these:
(a) that this Hon’ble Court be pleased to issue a Writ of Certiorari of any other appropriate Writ, order of direction calling for the records relating to proposal and sanction under no. CHE/7075/WS/AK for proposal building No.1 on Plot bearing CTS No. 484, 484/1 to 7 of Village Chakala at Andheri Kurla Road, Andheri East, Mumbai, commencement certifcate dated 20.2.2013 and 20.3.2013 at Ex. “U” and Ex. “U-1” and sanctioned plan and the letter dated 29.4.2013 (Ex. “W-7”) written by the Respondent No.4 a copy of which is annexed at Ex. “W” and after examining the legality, correctness and validity of the said approval and commencement certifcate dated 20.2.2013 and 20.3.2013 the letter dated 29.1.2013 and the order of the Municipal Commissioner dated 26.6.2019 (Ex. “F”) this Hon’ble Court be pleased to quash and set aside the sanctioned plans and the commencement certifcate and the Municipal Commissioner’s order dated 29.6.2019;
(b) that this Hon’ble Court be pleased to issue a Writ of Mandamus of any other appropriate Writ, order or direction to Respondent No. 1-4 to forthwith revoke sanctioned plans and commencement certifcate dated 20.2.2013 and 20.3.2013, and the plans sanctioned on 22.9.2016 u/no.CE/7075/WS/AK the same being illegal and in violation of the provisions of D.C. Regulations, 1991 and direct the Respondent No.1 to demolish illegal construction of commercial bldg which is in violation of DCRs;
(c) that this Hon’ble Court be pleased to hold that the sanction of plans granted to the proposal submitted under no. CHE/7075/WS/AK is illegal, arbitrary, contrary to law, null and void;
(d) that the Respondent Nos. 1 to 4 be ordered and directed to examine the structural stability of the commercial construction;”

10. The property in question is a substantial tract of land of over 13000 sq mtrs. There are four distinct buildings on this plot. The plot itself stands to the South of Sir Mathuradas Vasanji Road or Andheri-Kurla Road and actually abuts it. Building No.1, closest to Andheri-Kurla Road is a commercial building. Then there are separate buildings comprising “A”, “B”, “C”, “D” and “E” wings spread over the constructed Building Nos. 2 and 3. Finally, wings “G” and “H” are in Building No.4. These two wings of Building No.4 have formed their own society and have not joined the Petitioners who claim to represent the residence of residential wings “A” to “E” in Building Nos. 2 and 3. The commercial Building No. 1 itself has two wings 1 and 2.

11. A short background to the development is necessary. To fully appreciate this we must turn frst to an description of the array of parties. The 1st Petitioner is a society, of as we said, the residents of Building Nos. 2 and 3 comprising wings “A”, “B”, “C”, “D” and “E”. The 2nd Petitioner is the Honorary Chairman of 1st Petitioner and 3rd Petitioner is its Honorary Secretary. The 1st Respondent is Mumbai Corporation of Greater Mumbai (“MCGM”), a body corporate constituted under the Mumbai Municipal Corporation Act 1888 (“the MMC Act”). The MCGM is also the planning authority under the Maharashtra Regional & Town Planning Act, 1966 (“the MRTP Act”)and exercises powers and performs duties under the Development Control Regulations, 1999 (“DCRs”), as periodically amended, and framed under the MRTP Act. The 2nd Respondent is the MCGM’s Municipal Commissioner. The 3rd Respondent is the Deputy Chief Engineer (Building Proposals), Western Suburbs, H and K wards of the MCGM. The 4th Respondent is Executive Engineer (Building Proposals), Western Suburbs, H and K ward o the MCGM. The 5th Respondent is a private limited company which is the developer and of which the 6th Respondent is the managing director. The 7th Respondent is the State of Maharashtra.

12. For convenience we will, to the extent possible refer to the parties by their names. Thus, the 1st Petitioner is referred to as “the society”. The 1st Respondent is referred to as “MCGM”. Respondents Nos. 2, 3 and 4 are identifed by their ofcial designations. The 5th Respondent will be referred to as “Credence Property Developers”, “the Developer” or simply “Credence”.

13. A brief history of the development runs like this. In 2002, Credence Property Developers acquired the development rights to CTS No. 484/1-7, of Village Chakala at Andheri (East), Mumbai 400 093 from the original owners. The proposal, according to the Developer, was always to construct residential buildings “A” to “H” and one commercial building on the property. Credence Property Developers received its frst Intimation of Disapproval and frst Commencement Certifcate for Buildings “A” and “B” on 10th December 2001 and 4th February 2002. It began construction in 2002. Credence Property Developers also received at about same time an IOD and CC for constructing Buildings “C” to “E”.

14. On 17th December 2002 some of the original owners brought Suit No. 4007 of 2002 in this Court against other owners and against Credence including a challenge to the Developer’s development rights and title. Meanwhile on 1st October 2003 and 20th November 2003, Credence completed the construction of wings “A” to “E” spread over to Buildings 2 and 3. It delivered possession to purchasers (some of the members of the society ) between September 2003 and 2004. By then Credence had began construction of wings “G” and “H” in Building 4. On 5th April 2004, Credence obtained an IOD for the commercial building on the property. On 2nd June 2004 it obtained a commencement certifcate. On 6th May 2004 this Court made an order in the property owners’ suit inter alia appointing a receiver to monitor and supervise construction and preventing Credence from doing any further construction on the property. This delayed construction of the commercial building and the completion of certain amenities. Credence appealed against the order of 6th May 2004. The Appellate Court on 21st October 2004 opined that it would not be proper now to stop the construction but asked the Court Receiver to act as a commissioner and submit a report about the status of site. Credence was allowed to complete the construction of “G” and “H” wings but was not permitted to create any third party rights nor to carry out any further construction on the commercial building. Credence thus completed construction of the basement and upper foors of “G” and “H” wings.

15. In 2004, the plaintifs in the Civil Suit No. 4007 of 2002 moved an application for impleadment seeking to join 250 persons, all fat purchasers in Building “A” to “E”, as parties to that Suit. This was allowed by an order of 12th April 2005.

16. In 2009 the Appeal Court by his order of 17th January 2009 set aside the Single Judge’s order of 6th May 2004 and remitted the Motion for consideration afresh in view of subsequent developments. Both this Motion and associate Motions were disposed of by a common order of 5th May 2010. The receiver was continued until the fnal decision of the Suit but only to supervise the development and construction as a commissioner, and the Court Receiver was directed to deliver possession of the fats in wings “G” and “H” and to have the necessary agency agreement executed. Credence was required to take the approval of the High Court if it wished to develop the remaining commercial building and one residential building “F”.

17. Credence Property Developers and others fled Appeal against this order. All these appeals were disposed of on 9th September 2010. Credence Property Developers was to deposit a sum of Rs. 1.2 crores within four weeks in Court and on that deposit being made the Receiver would stand discharged and there would be no injunction against the Developer. The Court specifcally permitted construction of the commercial building and said that it should be completed in three and half years. It also directed that on Credence depositing a sum of Rs. 5 crores in Court all interim orders against it would cease to operate. On 7th October 2010, Credence deposited these amounts. This resulted, according to the Developer represented by Mr Sathe, in a vacating of all previous interim orders and injunctions. What survived was the direction to Credence to complete the commercial building in three and half years. Importantly, the Society and its members were all present before the Court throughout.

18. It is not necessary to examine in great detail the correspondence between the society and Credence Property Developers that ensued. It is enough to note that in August 2011 the Society and some of its members fled a consumer complaint before the State Consumer Disputes Redressal Forum inter alia for an injunction against the construction (or completion) of the commercial building and for other reliefs. While this was pending, Credence Property Developers obtained development permission for the commercial building in accordance with the amendments to the Development Control Regulations of 2013. It was granted and IOD dated 20th February 2013 and a Commencement Certifcate dated 20th March 2013. There was then some issue of a temporary closure of the main access and of the Society seeking compensation for the inconvenience, but that again is not a matter that we are called on to decide.

19. On 20th March 2013, Credence Property Developers began construction of the commercial building. Once again there seem to have been some conficts between the Society and Credence Property Developers. The latter fled a police complaint. Again for our present purposes this is not material. The Society had not obtained any interim reliefs in its consumer complaint. Further disruptions then occurred. The Society made another application to the Consumer Court in March-April 2018. This also was not granted. Credence Property Developers fled Suit No. 1177 of 2013 and an accompanying Notice of Motion for interim reliefs in the City Civil Court at Dindoshi against the society inter alia for an injunction restraining it for obstructing the construction. On 29th April 2013, that Court granted such an injunction. Importantly, later that month on 9th and 15th April 2013 the residents of “G” and “H” wing, who had formed their own society, wrote to Credence Property Developers saying that they had no objection to the temporary access that the Credence was compelled to provide while construction on the commercial building was going on. On 29th April 2013, the Dindoshi City Civil Court passed an order of restraint against the Society and its members from obstructing the construction work.

20. It was then that the society fled the previous Writ Petition No. 1502 of 2013 to which we have earlier made reference. The two relevant previous orders we have already extracted above and at this stage we only need to note that on 4th December 2014, the MCGM issued a revised IOD to Credence Property Developers in respect of the commercial building. Further revised IODs were obtained by Credence Property Developers on 26th September 2016 and 7th July 2018. It has completed construction up to seven upper foors and the commercial building itself is registered as a project with the Real Estate Regulation Authority or RERA. On 21st July 2018, the Developer sought a part Occupation Certifcate for the commercial building. This was held up for want of permission of this Court and was ultimately rejected on 25th July 2018. This is why on 31st July 2018 the developer fled a Notice of Motion No. 331 of 2018 in the Society’s previous Writ Petition No. 1502 of 2018 for leave of the Court to apply for a part Occupation Certifcate. On 24th April 2019 this Court, by a consent order, directed the Municipal Commissioner to decide whether the construction of the ground plus seven foors commercial building was legal and whether it was entitled to an Occupation Certifcate. The Municipal Commissioner was not to express any opinion on the private disputes between the society and the Developer. The Municipal Commissioner heard both sides and on 11th June 2019 the society and the Developer fled written submissions. On 7th June 2019, the Municipal Commissioner passed the impugned order essentially holding that the approvals and sanctions that the Developer had obtained for the commercial building were lawful, in accordance with the provisions of the DCRs and applicable Government Notifcations. He held that, consequently, the commercial building deserved an Occupation Certifcate.

21. We have already, at the forefront of this Judgment set out the events that subsequently transpired i.e. the fling of the second Writ Petition and its posting for hearing.

22. We have heard Mr Sanglikar for the Petitioners at length and considered his detailed submissions. We have also heard Mr Sakhare learned Senior Counsel for the MCGM and its officers and Mr Sathe learned Senior Counsel for Credence Property Developers. We have considered the material on record and the relevant statutory and regulatory provisions. We have concluded that the Petitioner Society has failed to make out any case warranting our interference under Article 226 of the Constitution of India. For the reasons that, follow we are unable to accept Mr Sanglikar’s submissions that any part of the commercial building construction is illegal or unlawful. We have not expressed any opinion on the private claims made by the society or the private disputes between the Society and the Developer. In a Writ Petition under Article 226 of the Constitution of India invoking a public law remedy, those private disputes cannot be our concern. Any such dispute is essentially a dispute on facts incapable of being resolved in our limited writ jurisdiction. We are also not concerned with some of the submissions that Mr Sanglikar attempted such as collapse of the foundation or a cutting of an access to the basement. These again fall within the realm of private disputes and do not touch upon the illegality alleged by Mr Sanglikar. Our approach has been to examine whether the Society is able to demonstrate a violation or transgression of the law and whether the impugned decision of the Municipal Commissioner sufers from any legal infrmity.

23. Mr Sanglikar’s challenge to the Municipal Commissioner’s impugned order dated 29th June 2019 is covered by the arguments that he places before us in an attempt to demonstrate that the construction of the commercial building of ground plus seven foors is illegal.

24. Mr Sanglikar places six distinct points for consideration:
(i) illegal loading of transferable development rights (“TDR”) for the commercial building;
(ii) construction of an amenity on an accommodation reservation;
(iii) construction of an electricity substation illegally in a basement;
(iv) illegal condoning of a defciency in a marginal open space;
(v) illegal condoning of a defciency in segregating distance and;
(vi) an illegal construction in regard to a ramp.

25. Mr Sanglikar’s case is that the whole of the commercial building is illegal and that the Petitioners have objected to it from the very beginning. We will take each of these submissions one by one.

26. There is an additional ground that the plot is within the funnel area of the Airport and any proposal as approved by the Municipal Authorities of a ground plus nine structure would violate air safety norms. The existing approval from the Director General of Civil Aviation is only for a ground and seven foor structure. This is easily dispatched with Mr Sathe’s assurance that the Civil Aviation rules and the DGCA norms will be followed. We accept that statement as an undertaking.

27. First, a brief background to the complex.

28. Mathuradas Vasanji Road runs in a roughly east-west direction from Kurla on the east to Andheri on the west. This is also known as the Andheri-Kurla link road. The plot in question lies to the south of this Road. Several plots were amalgamated to make this into a single plot. It does not seem to be disputed that before the development began, the entire area fell within the I-3 or Special Industrial Zone. It was converted into a C-1 or Commercial 1 zone with a conditional approval.

Re: UTILISATION OF TDR:

29. This is been the primary focus of Mr Sanglikar’s attack. Shortly stated, he submits that on a correct reading of the relevant DCRs because the plot abuts on Mathuradas Vasanji Road, and because of its zoning, it is incapable of receiving any incoming Transferable Development Rights or TDR. There is no dispute that the conversion from the I-3 Zone to the local commercial zone (C-I) was permitted by an order of 22nd February 1996 under DCR 57. There is no challenge to that conversion. There cannot be.

30. Transferable Development Rights or Transfer of Development Rights relate directly to Floor Space Index or FSI. Broadly stated, FSI is a ratio of the built up area to the plot area. It restricts how much can be constructed. The extent of permissible built up construction is a factor of the size of the plot. FSI and parallel concepts such as Floor Area Ratio or FAR are well known in various development control statutes and regulations around the country. The concept of TDR is slightly diferent. Where development of any particular plot is further limited i.e. so that the plot cannot achieve its full development potential, for example because of other supervening regulations such as, say, heritage, safety, civil aviation norms and so on, the concept of TDR comes into play. The unutilised FSI, or that much of it as cannot be utilised is permitted to be monetised and sold by the plot owner in an open market. This take the form of a DRC or Development Rights Certifcate. Essentially, the unused TDR is shifted from the FSIrestricted or source plot to another plot specially designated or located within a zone which can receive incoming FSI in the form of TDR. The receiving plot has its own inherent FSI. On top of this comes to be loaded the incoming TDR received from another plot. Thus, while the source plot will have a reduced FSI consumption, the receiving plot gets an extended beneft of additional TDR FSI over and above its inherent plot-dependant FSI.

31. Mr Sanglikar’s submission is that the loading of TDR on this particular plot was entirely unnecessary and wholly illegal. It makes no diference, he submits, that some of that TDR was used in the construction of the Society buildings. For, he argues, those buildings could well have been constructed without any such TDR. The primary purpose of bringing in TDR was only to construct the commercial building and to make profts.

32. In itself this argument would not have carried Mr Sanglikar to his destination and therefore his attempt to demonstrate that the entire loading of TDR is illegal in law. His starting point for this is a reference to DCR 34 which deals with TDR.
“34. Transfer of Development Rights
In certain circumstances, the development potential of a plot of land may be separated from the land itself and may be made available to the owner of the land in the form of Transferable Development Rights (TDR). These Right may be made available and be subject to the Regulations in Appendix VII hereto.
(i) Provision for Proposed Nalla/Nalla Widening/Training and appurtenant service roads thereto shall be considered to be “reservation” in the Development Plan and if the FSI of such land is not possible to be consumed on the remaining land as envisaged under Regulation 35, with prior approval of the Government, the owner shall be eligible for grant of TDR on handing over the land free of cost for such purpose as in Appendix-VII. However, as per the provision of regulation 15 of Appendix VII, the owner shall be insisted to pay pro-rata charges for cost of construction of compound wall instead of retaining wall:
Provided that when Proposed Nalla/Nalla Widening/Training and appurtenant service road thereto is passing through the lands afected by any other reservation of the Development Plan, then TDR of the land can be granted only once either for D.P. reservation or deemed reservation mentioned above for nalla etc. Eforts shall be made to cover/to train the nalla suitably so that the said land can be used for its intended purpose as proposed in the Development Plan. However, if such covering nalla is not feasible/viable then the nalla and appurtenant service road shall be developed as per requirement and the said other reservation of the Development Plan afecting the said land shall be deemed to be deleted/modifed to that extent.”

33. He submits that this must be read with Regulation 52.
52. Residential Zone with Shop Line (R-2 zone)
(1) The residential zone with shop line (R-2 Zone) in which shopping will be permissible as indicated herein, will comprise:
(a) Plots in a residential zone along roads on which the shop line is marked on the development plan.
(b) Plots in a residential zone along roads having existing or prescribed width of and between 18.3 m and 31 m in the suburbs and extended suburbs.
(c) Plots in a residential zone along roads having existing or prescribed width of and between 24 m and 31 m in the Island City.
Provided that the restrictions of road width given in this clause to determine plots in R-2 zone in the Island City are not applicable to die plots within Dharavi Notifed Area. For the plots within Dharavi Notifed Area, R-2 zone shall be determined as the ‘plots’ along roads having existing or prescribed width of and between 18.30 mt and 45 mt.
However no commercial users permitted in R-2 Zone shall front directly on the arterial roads above 36 mt. Passing through Dharavi Notifed Area, on such roads punctures at specifc intervals shall be provided as as to have access from such arterial roads.
(2) No new shops will, however, be permitted on plots in the residential zone with a shop line (R-2 Zone) which abut and are along the following roads, even if a shop line is marked on such roads in the development plan except what is permitted by way of convenience shopping.
(a) Western Corridor.- From Regal Cinema junction to Vithalbhai Patel Road, Khar covering Madam Cama Road, Netaji Subhash Road, Dr. N.A. Purandare marg, Babulnath Road, Justice Patkar Marg, Bhulabhai Desai Road, Lala Lajpatrai Road, Dr. Annie Besant Road, Veer Savarkar Marg, Mahim Causeway, Vithalbhai Road upto its junction with Chitrakar Dhurandhar Marg, Khar.
(b)(i) Mahim Causeway from General Arun Kumar Vaidya Marg upto its junction with Swami Vivekanand Road and further upto the latter road’s junction with Chitrakar Dhurandhar Marg.
(ii) Juhu Tara Road, Shri Mathuradas Vasanji Marg, (Kurla Andheri Road) and Jai Prakash Road.
(c) Central Corridor.- From Regal Cinema junction to V.N. Purav Marg, Trombay covering Mahatma Gandhi Road, Dadabhai Navroji Road, Lokmanya Tilak Road, Mohamed Ali Road, Ibrahim Rahimtulla Road, Jamsetji Jeejeebhoy Road, Dr. B. Ambedkar Marg, Sion Road, Tatya Tope Road, V.N. Purav Marg upto Anushakti Nagar.
(d) Other roads viz. Shahid Bhagatsing Road, Lokmanya Tilak Road, L Jagmohandas Road (Nepean Sea Road), Bhulabhai Desai Road (Warden Road), August Kranti Marg, Walkeshwar Road, S.K. Barodawala Marg (Alatmount Road), Dahanukar Marg (Carmichael Road), Nepean Sea Road, Manav Mandir Road.
(e) All Express Highways/Freeways:
Provided that where the above-mentioned roads intersect other roads, shopping will be permissible on plots on the latter roads in the residential zone with a shop line (R-2 zone) only on the side of the building facing such roads and with access only on-such roads:
Provided further that the above restrictions on shopping will not apply to areas falling in the Local Commercial Zone (C-I zone) and in the case of reconstruction or redevelopment of an existing building having existing shopping users.
(3) Notwithstanding anything contained in this Regulation, for reasons of congestion, trafc or nuisance, new shopping or convenience shopping, even if otherwise permissible, the Commissioner may not, for reasons to be recorded in writing, permit such shopping.
(4) Uses permitted in tile Residential Zone with Shop line (R-2 zone).- The following uses shall be permitted in buildings, premises or plots in a residential zone with shopline:-
(i) All uses permitted in the purely residential zone (R-1 zone).
(ii) Stores or shops for conduct of retail business including department stores. There will, however, be no storage or sale of combustible materials except with the Commissioners special permission.”
(Emphasis added)

34. This regulation according to Mr Sanglikar has to be read with ‘Appendix VII’ to these DCR. Now there is a difculty with the various reference texts that are being used. Appendix VII and these DC Regulations have been amended so that we now have an Appendix VIIA and Appendix VII-A. To avoid all controversy, we have used for the purposes of the relevant Appendix the most authentic source that we could fnd, namely an up-to-date compilation provided by Ms Adhate, learned Advocate appearing for the MCGM with Mr Sakhare. This is complete in every respect. It shows all the amendments. Although we are concerned with only a portion of this we will reproduce the whole of it. We note that Appendix VIIA relates to Regulation 67, which is not applicable, and it is Appendix VII-A which applied to DCR 34. Appendix VII-A was introduced by a later amendment.
“APPENDIX VII – A
(Regulations 34)
Regulations for the grant of Transferable Development Rights (TDRs) to owners/developers and conditions for grant of such Rights.
1. The owner (or lessee) of a plot of land which is reserved for a public purpose in the development plan and for additional amenities deemed to be reservations provided in accordance with these Regulations, excepting in the case of an existing or retention user or any required compulsory or recreational open space, shall be eligible for the ward of Transferable Development Rights (TDRs) in the form of Floor Space Index (FSI) to the extent and on the conditions set out below. Such award will entitle the owner of the land to FSI in the form of Development Rights Certifcate (DRC) which he may use himself or transfer to any other person.
2. Subject to the Regulations I above, where a plot of land is reserved for any purpose specifed in section 22 of Maharashtra Regional and Town Planning Act, 1966, the owner will be eligible for Development Rights (DR’s) to the extent stipulated in Regulations 5 and 6 in this Appendix had the land been not so reserved, after the said land is surrendered free of cost as stipulated in Regulations 5 in this Appendix, and after completion of the development or construction as in Regulation in this Appendix if he undertakes the same.
3. Development Rights (DRs) will be granted to an owner or a lessee only for reserved lands which are retainable/non-retainable under the Urban Land (Ceiling and Regulations) Act, 1976, and in respect of all other reserved lands to which the provisions of the aforesaid Act do not apply, and on production of a certifcate to this efect from the Competent Authority under that Act before a Development Right is granted. In the case of non-retainable lands, the grant of Development Rights shall be to such extent and subject to such conditions as Government may specify. Development Right (DRs) are available only in cases where development of a reservation has not been implemented i.e. TDRs will be available only for prospective development of reservations.
4. Development Rights Certifcate (DRCs) will be issued by the Commissioner himself. They will state, in fgures and in words, the FSI credit in square meters of the built-up area to which the owner or lessee of the said reserved plot is entitled, the place and user zone in which the DRs are earned and the areas in which such credit may be utilised.
5. The built-up area for the purpose of FSI credit in the form of a DRC shall be equal to the gross area of the reserved plot to be surrendered and will proportionately increase or decrease according to the permissible FSI or the zone where from the TDR has originated.
[Provided that in specifc cases considering the merits, where Development Plan Roads/ reservations are propose in No Development zone, the Commissioner with prior approval of the Government shall grant FSI for such road land/reserved land equivalent to that of the adjoining zone.]
6. When an owner or lessee also develops or constructs the amenity on the surrendered plot at his cost subject to such stipulations as may be prescribed by the Commissioner or the appropriate authority, as the case may be and to their satisfaction and hand over the said developed/constructed amenity to the Commissioner/appropriate authority, free of cost, he may be granted by the Commissioner a further DR in the form of FSI equivalent to the area of the construction/development done by him, utilisation of which etc. will be subject to the Regulations contained in this Appendix.
7. A DRC will be issued only on the satisfactory compliance with the conditions prescribed in this Appendix.
8. If a holder of a DRC intends to transfer it to any other person, he will submit the DRC to the Commissioner with an appropriate application for an endorsement of the new holder’s name, i.e. transferee on the said Certifcate. Without such an endorsement by the Commissioner himself, the transfer shall not be valid and the Certifcate will be available for use only by the earlier original holder.
9. A holder of a DRC who desires to use the FSI credit certifed therein on a particular plot of land shall attach to his application for development permission valid DRCs to the extent required.
10. Irrespective of the location of the land in which they originate, DRCs shall not be used in the Island City. They may be used-
(a) on any plot in the same ward as that in which they have originated (neither ward being in the Island city), or
(b) on any plot lying to the north (wholly or partiality) of the plot in which they have originated (but not in the Island city).
11. A DRC shall not be valid for use on receivable plots in the areas listed below:-
(a) Between the tracks of the Western Railway and the Swami Vivekanand Road;
(b) Between the tracks of the Western Railway and the Western Express Highway;
(c) Between the tracks of the Central Railway (Main line) and the Lal Bahadur Shastri Road;
(d) On plots falling within 50 m. on roads on which no new shops are permitted as specifed in sub-regulation (20 of Regulation 52.
(e) Coastal areas and areas in No Development Zones, Tourism Development Zones, the areas for which the Mumbai Metropolitan Region Development Authority or Maharashtra Housing and Area Development Authority is the Special Planning Authority;
[On plots for housing schemes of slum dwellers for which additional FSI is permissible under subregulation (10) of Regulation 33. However, in cases where nonslum plot is amalgamated with the slum plot for the purpose of better planning etc. then DRC will be receivable on the non-slum plot. In such cases utilisation of DCR shall be governed as per procedure and provisions stipulated in Appendix VII-A and Appendix VII-B of DCR 1991.]
(g) Areas where the permissible FSI is less than 1.0
(h) [on plot stipulated in eMi Ward except TDR generated from eMi Ward and slum TDR generated elsewhere.]
12. The user that will be permitted for utilisation of the DRCs on account of transfer of development rights will be as under:-

TABLE
Zone in which designated / reserved plot is situated User to be permitted in receiving areas
(1) Residential Only residential users and in Residential Zones only.
(2) Commercial (C-2).. Commercial (C-2) users if the plot where the FSI is to be utilised is situated in C-2 Zone. Commercial (C-1) if the plot where the FSI is to be utilised is situated in C-1 Zone. Residential in Residential Zones.
(3) Commercial (C-1) Commercial (C-1) if the plot where the FSI is to be utilised is situated in C-1 Zone. Residential in Residential Zones.
(4) Industrial (I-1), (I-2), (1-3) Residential only in Residential Zones.

13. RCs may be used on one or more plots of land whether vacant or already developed or by the erection of additional storeys, or in any other manner consistent with these Regulations, but not so as to exceed in any plot a total built-up FSI higher than that prescribed in Regulation 14 in this Appendix.
14. The FSI of receiving plot shall be allowed to be exceeded by not more than 0.8 earned either by way of a DR in respect plots as in this appendix or by way of land surrendered for road widening or construction of new roads according to subregulation No. (1) of Regulations 33 or by way of both provided that incase the receiving plot is situated in the areas listed in categories specifed in clause (a) to (g) of regulation 11 of Appendix VII of these Regulation, the same shall not be allowed to be further loaded by way of TDR beyond the limit already specifed in these regulations.
However, such FSI on the receiving plots under regulation 56(3) (c)(ii) and 57(4)(c)(ii) shall be allowed on 100% of the net plot area after deducting the required public amenity space.
15. DRs will be granted and DRCs issued only after the reserved land is surrendered to the Corporation, where it is Appropriate Authority, otherwise to the State Government as the case may be, free of cost and free of encumbrances, after the owner or lessee has levelled the land to the surrendering ground level and after he has constructed a 1.5 m high compound wall (or at a height stipulated by the Commissioner) with a gate at the cost of the owner, and to the satisfaction of the Commissioner, or the State Government (where the Corporation/is not the appropriate authority). The cost of any transaction involved shall be borne by the owner or lessee.
16. With an application for development permission, where an owner seeks utilisation of DRs, he shall submit the DRC to the Commissioner who shall endorse thereon the writing in fgures and words, the quantum of the DRC proposed to be utilised, before granting development permission, and when the development is completed, the Commissioner shall endorse on the DRC in writing, in fgures and words, the quantum of DR’s actually utilized and the balance remaining thereafter, if any, before issue of occupation certifcate.
17. A DRC shall be issued by the Commissioner himself as a certifcate printed on bond paper in an appropriate form prescribed by Commissioner. Such a certifcate will be a transferable “negotiable instrument” after due authentication by the Commissioner. The Commissioner shall maintain a register in a form considered appropriate by him of all transactions, etc. relating to grant of utilisation of DRs.
18. The surrendered reserved land for which a DRC is to be issued shall vest in the Corporation or the State Government, if the appropriate authority is other than the Corporation, and such land shall be transferred in the City Survey Records in the name of the Corporation or in the State Government, as the case may be, and shall vest absolutely in the Corporation or the State Government. The surrendered land, so transferred to the State Government in respect of which the Corporation is not the appropriate authority, may, on application, thereafter be allotted by the State Government in favour of the concerned authority which may be a State or Central Government Department authority or organization, or an other public authority or organization on appropriate terms as may be decided by the State Government.
19. The Commissioner/appropriate authority shall draw up in advance and make public from time to time a phased annual programme (allowing a 10 per cent variation to deal with emergency development) for utilisation of TDRs in the form of DRs, prioritizing revised, (draft or sanctioned) development plan reservations to be allowed to be surrendered and indicating the areas for their utilisation on receiving plots. Notwithstanding this, in urgent cases the Commissioner/appropriate authority, may for reasons to be recorded in writing, grant DRs, as and when considered appropriate and necessary.
20. Notwithstanding anything contained in these Regulations, additional FSI upto the extent of 50% permissible as per the provisions under Regulations 33(2) may be allowed to be utilized in the form of TDR (except in the Island City) in case of buildings on independent plots of Medical Institutions of Public Charitable Trusts, Private Medical Institutions or of Medical Institutions run on cooperative basis established for charitable purposes and registered under the Provisions of Income Tax Act or Maharashtra Cooperative Societies Act.
Provided that utilization of TDR will be allowed only after availing of fully the remaining additional FSI of 50% requiring the payment of premium.
21. Notwithstanding anything contained in these Regulations, additional FSI upto the extent of 50% permissible as per the provisions under Regulation 33(2) may be allowed to be utilised in the form of TDR (except in the Island city and non receivable plots for TDR as per clause 11 of Appendix VII of the said Regulations) in case of buildings on independent plots of Educational Buildings of Public Charitable Trust, provided that utilisation of TDR will be allowed only after availing of fully the remaining additional FSI of 50% requiring the payment of premium.”
(Emphasis added)

35. What Mr Sanglikar contends is that DCR 52 mentions Mathuradas Vasanji Road and prevents therefore any new shops on any such road. The commercial building is therefore illegal. Further DCR 34 read with Appendix VII-A and clause 11(d) as also the table in paragraph 12 relating to a commercial C-I zone makes it clear that there can be no TDR received on plots within 50 mtrs of roads on which no shops are permitted under DCR 52(2). This, he says, is a correct reading of clause 11(d) of Appendix VII-A. The argument seems to be that since Mathuradas Vasanji Road is listed in DCR 52(2), it cannot receive TDR if the plot is within 50 mtrs of that road,. DCR 52(2) list the roads on which no new shops are permitted.

36. There is fundamental faw in this argument. DCR 52(2) relates to a residential zone R2 Zone, a residential zone with a shopping line. Mr Sanglikar’s construct assume that the whole of Mathuradas Vasanji Road has a single zone. There is nothing to show that it does. Along the length of that road there may be diferent zones and the restriction to which Mr Sanglikar refers in DCR 52(2) is limited to plots within the residential R-2 zone that fall on Mathuradas Vasanji Road. This is obvious from a plain reading of these regulations and their captions. We do not see how the placement of a regulation can be divorced from its context so thoroughly. Further, there is intrinsic evidence as well. DCR 52(2) has a broad restriction in its opening paragraph saying no new shops will however be permitted on the plots in the residential zone with a shop line. The R-2 zone refers to a residential zone with a shop line. The restriction is on new shops. Many roads are listed, which are to be found in diferent parts of Mumbai. It is obvious that not all these roads, and perhaps none of them, are exclusively in a R-2 zone. There are portions of these roads purely residential with no shop line. Some have portions that are purely in the commercial zone and there are others in the R-2 zone. Thus any stretch of road could have diferent types of zones along its running length. The argument from Mr Sanglikar is a sort of one-size-fts-all approach, which is to say that the restriction in 52(2) applies to the road irrespective of the zone. It is impossible to accept any such argument. He completes his argument by saying that the plot in question after amalgamation actually abuts Mathuradas Vasanji Road.

37. Credence Property Developers argues that the restriction invoked by Mr Sanglikar has no application at all and we are inclined to accept this because we cannot simply ignore the placement of DCR 52(2) in the DCRs. The argument from Mr Sanglikar that the zoning is irrelevant and that Appendix VII-A as he reads it governs everything irrespective of zoning is clearly untenable.

38. In other words, his argument is that because DCR 52(2), a clause that is under the caption of R-2 Zone, prohibits new shops on specifed roads, therefore all new shops on those roads are forbidden even if they do not fall in the R-2 zone. Zoning, he says, is irrelevant.

39. We disagree. His repeated attempts to persuade us that the zoning is irrelevant and that the restriction in DCR 52(2) will apply irrespective of zoning is unpersuasive. We fnd that there is a defnite public purpose behind the restriction. The R-2 zone is, by defnition, a residential zone with a shop line. What the restriction on no new shops in the R2 zone along specifed roads therefore does is to ensure that these residential zones with shop lines and only along these defned roads mentioned in sub clause (2) are not further congested and crowded by allowing new shops by a utilisation of TDR or otherwise. In fact, DCR 52(2) itself makes no mention of TDR at all. It simply prohibits new shops along in the R2 zone along these defned roads. We do not think it is either reasonable or even plausible to argue that this restriction can be unanchored to its context and to the specifc DCR in which it is seated.

40. What regulation 34 read with Appendix VII-A says in sub clause 11 and clause 11(d) is in furtherance of this public policy to prevent congestion. It prohibits the use of TDR for creating new shops. Without this there would be a confict between DCR 34 read with Appendix VII-A and DCR 52(2). Then, conceivably, TDR could be loaded even in such a R-2 zone. The entire purpose is salutary and in the public interest and conforms to one of the essential requirements of Section 22 of the MRTP Act pertaining to the contents of a development plan i.e. to provide for balanced development.

41. We are unable therefore to fnd substance in this argument advanced on behalf of the Petitioners

42. We have also seen the no objection letter dated 2nd May 1995 at page 133 (pages 213 and 217). There is also a note of the MCGM of 13th May 2002. This says that the commercial building was then proposed for a FSI of one. The architect utilised 100% TDR on the net foor area thus bringing the commercial building to ground and fve foors and also adding signifcant built up area benefts to the other building. In Item 3 of that note it is noted that MCGM has claimed that TDR is not permissible on a plot within 50 mtrs from the Andheri Kurla Road and therefore the proposal was to give a TDR setback area — open space of 50 mtrs and utilised general TDR up to 18% of the net plot area. This permitted the utilisation of a total TDR of 7321.38 sq mtrs. This was recommended.

43. Now, as we have seen there is a public policy behind these restrictions on TDR utilisation. If these are fully addressed as we have seen then, there can be no question of holding that the entire utilisation in the commercial building of TDR is unlawful.

44. In response to Mr Sanglikar, Mr Sakhare for the MCGM has clearly contended that the restriction in DCR 52 is only to the R-2 zone. Since the plot does not fall in that zone these provisions cannot be invoked. Mr Sathe points out that on the Andheri Kurla Road is stretch of about 20 kms with difering zones. Even if there is mixed zoning along this route, the restriction can apply only to R-2 zone.

45. Mr Sakhare further points out that the argument is more misconceived because the TDR loaded was a specifc type of TDR i.e. slum TDR emanating from regulation DCR 33 (10). Now slum TDR is governed not by DCR 34 and Appendix VII-A but by DCR 33 (10) read with the Appendix VII-B. Clauses 9, 10 and 11 of Appendix VII-B contain the relevant restrictions which read thus:
“9. Notwithstanding any provisions contained in Appendix VII-A, the DRCs may be used-
(a) On any plot in the same ward in which TDR has originated, the ward not being in the Island City.
(b) On any plot lying to the north wholly or partly of the plot in which TDR originated, the plot not being in the Island City.
10. A DRC shall not be valid for use on receivable plots in the area listed below:
(i) Coastal Regulations Zone-1 and areas in NDZ, TDZ and the areas for which the MMRDA has been appointed as Special Planning Authority.
(ii) On plots where Slum Rehabilitation Projects have been taken up or are possible. However, in cases where a non-slum plot is amalgamated with a slum plot then DRC shall be valid for use on non-slum plot. In such cases utilization of DRC shall be governed as per procedure and provisions stipulated in Appendix VII-A and Appendix VIIB of DCR 1991.
(iii) Areas where the permissible FSI is less than 1.0 FSI except “M” Ward.
(iv) Heritage buildings and precincts notifed under DC Regulation No. 67.
11. Notwithstanding the provisions in Appendix VII-A, sub-regulation 12, the use of DRC on the TDR receiving plot will be subject to the same regulations that are applicable to the TDR receiving plot. There will be no restrictions on which zone TDR can be received, except the provisions in sub-regulation 9 and 10 above.”

46. These clauses have a non obstante clause and exclude the restrictions imposed in Appendix VII-A. The plot in question is not covered by any of the restrictions contained in Appendix VII-B applicable to slum TDR. This is therefore a clear cut misreading of the provisions by the Petitioner Society.

47. Then the argument is that the MCGM has accepted the applicability of DCR 52(2) to the plot in the manner Mr Sanglikar canvasses, because the MCGM itself proposed that if the commercial building was set back 50 mts from the frontage then there would be no problem. But the restriction, Mr Sanglikar argues, is not to the distance between the building and the road line, but to the entire plot which is declared to be incapable of receiving incoming TDR. This argument does not commend itself, and for several reasons. First, when we are interpreting a statute, we are really not concerned with a municipal officer’s recommendation or fle noting in regard to it. We will interpret that for ourselves. Once we have found that the interpretation canvassed by Mr Sanglikar is not correct, then no amount of MCGM office noting will upset that fnding. Second, it is entirely possible that the noting proceeded on a view that was erroneous. But if the fnal decision is correct on interpretation, then that earlier noting is irrelevant. Third, it is also possible that the noting proceeded on the basis of an alternative or a worst case scenario for abundant caution. Why that noting was so made would need to be examined in a trial, which we cannot do in writ jurisdiction. Finally, if the result of that noting (allowing the commercial building set back by 50 mtrs) coincides with our fnding (that the restriction does not apply at all), then the argument based on the noting goes nowhere.

RE: CONSTRUCTION OF AMENITY ON THE BASIS OF ACCOMMODATION RESERVATION

48. The defnition of amenity in the MRTP Act includes a market. This is not to be found in the DCRs. The case of the Petitioners society appears to be that in lieu of handing over a 5% amenity space on the land, Credence Property Developers applied to the MCGM to accept a 40% built up area of 5% amenity space under the concept of “accommodation reservation”. This reservation area is on a corner of the map that was tendered by Mr Sathe. The amenity in question is said to be a market and there is does not seem to be dispute about this. We fnd Mr Sanglikar’s starting proposition to be somewhat erroneous in its assumption that an amenity means a space to be kept open. That may be true of certain types of amenities such as recreation grounds or playgrounds but it could also mean an open area on the plot on which an amenity is to be provided, for example a built market. The submission of the Society is that the Developer had no choice but to hand over the plot and could not just construct an amenity on it. The Developer could not physically construct the amenity space and then further construct further commercial spaces for sale on top of the built amenity space.

49. Any policy that the MCGM framed to permit this is ultra vires the DCRs. The plot in question would have to be an independent plot.

50. An MCGM proposal note dated 28th July 2003 (pages 150- 155) show this item as being considered at Sr No. 5. The background is that original letter of intent of 22nd February 1996 required that a 5% amenity space would be provided and kept unbuilt and then handed over to the MCGM as required. It was specifcally said that this 5% amenity space would be in addition to any requirement of open space.

51. What exactly is this ‘policy’? A copy of the MCGM’s ‘accommodation reservation’ policy framed on 20th February 2003 was separately handed over to us and we have it on fle. The opening portion of this policy makes it clear that it was triggered by the perceived need for a large number of commercial Project Afected Persons or PAP tenements for road-widening programmes. It was decided to designate amenity plots for municipal retail markets in suitable locations. Other plots unsuitable for markets could be designated for other purposes such as housing the dishoused. This was the genesis of the accommodation reservation policy.

52. After a complete discussion it was decided that the policy would be applied depending on locality-specifc requirements and after approval of the Municipal Commissioner with full justifcation. The accommodation reservation may be permitted because many amenity plots are designated for various public purposes such as police station, bus station, sub post office, school etc. Markets are not usually attractive and do not gain priority. It was therefore felt that it would be necessary to frame a fexible policy of allowing the accommodation reservation to a developer subject to the condition that an amenity building with at least 45% built up area in Mumbai city and 40% in the suburbs would be handed over to the MCGM free of cost. This policy was always subject to review.

53. These amenities were to be considered under DCR 57, clauses 4, 5, 6 and 7 to be a reservation on the development plan. TDR was always available for such reservations.

54. The MCGM proposal notes records that the proposal from Credence Property Developers was to relocate the amenity space which was permissible and about which there seems to be no argument. The note goes on to record that the MCGM had formulated this “accommodation as reservation” policy. That policy required any developer “ to hand over the 40% built up area of the 5% amenity space on the line under reference”.

55. Given this policy, Credence Property Developers proposed the development of the 5% amenity space. Its area was 701.6 sq mtrs. 40% of this worked out to 280.64 sq mtrs. Credence Property Developers proposed to develop 283.51 sq mtrs — more than the requirement — excluding the staircase. This entire built up area was on the ground foor (suitable for a market).

56. What the Developer proposed and what really troubles the society is that the Developer also requested permission to construct additionally over the ground foor municipal market premises. In this context, we make a note that an NOC from Civil Aviation Authorities of a height of 26.78 mtrs was also shown and which would translate to a building of stilt and seven foors. There were two proposals placed before the MCGM and the second of these was to allow the developer to put up a second building i.e. the commercial building with adequate open space. This would enable Credence Property Developers to fully utilise the permissible FSI. To facilitate this the MCGM was requested to consider whether it would grant permission for the construction of six upper foors above the ground foor municipal market. The MCGM proposed to designate this area as a market and the note said that the designation would have convenient shops for afected commercial structures in the vicinity i.e. that those relocated by road widening of the Andheri Kurla Road could be relocated here. There was, therefore, fve-fold proposal recommended as follows:
i) To accept 40% built up area of 5% amenity space as per the present policy of MCGM without insisting upon handing over of 5% amenity space to MCGM.
ii) To accept the 40% built up area at ground foor, which is also as per the policy of MCGM.
iii) To allow construction of upper foors to developer above the 50% built up area at ground foor to be handed over to MCGM. This will be allowed as the developer had agreed to hand over the built up area at ground foor within 6 months form the date of issue of the approval and in view of hardships stated under Item No. 7 above.
iv) To designate the user of 40% built up area against amenity space plot as MARKET.
v) To allow the owner/developer for composite, development on the land under reference under accommodation reservation designated as market, subject to specifcation given by Asstt. Com. (Markets)/P.I. Cell as per conditions in Annexure II at C/219-222.

57. Mr Sanglikar would have it that the whole of this building on the top of municipal market is illegal. He claims that there are no project afected persons, which itself is an untenable perspective with no basis. It is hardly open to Mr Sanglikar therefore to contend that there are no project afected persons at all. He does not know this. It is not his clients who are doing the road widening. It is not the Petitioners who have to deal with and provide for project afected persons.

58. This proposal was one that the Municipal Commissioner went on to approve. The specifc purpose or trigger for granting this permission was MCGM’s need of commercial space to accommodate PAPs displaced or to be displaced by widening of the adjacent Mathurads Vasanji road. It is surely not for the Society to say that there can be no commercial PAPs.

59. It is not shown that this proposal is otherwise illegal or unlawful. Mr Sathe points out that the property used to be situated in the industrial zone. The Developer obtained conversion to the local commercial user or C-1 zone on 22nd February 1996. One of the conditions stipulated in this conversion, and of which conversion the Society is a direct benefciary, was precisely this 5% amenity open space requirement. Now if that requirement is to be provisioned in one of multiple ways, the Society can hardly be heard to complain if one of several methods of provisioning the amenity is accepted. That amenity open space is not meant for society at all. It is in fact not even meant for the Developers. It is meant for the MCGM to use as municipal market. It fulfls a public purpose. It is simply not open to the Society to assail this permission.

60. What the Society seems to be demanding is that the 5% amenity space ground area be physically handed over to the MCGM, thus shrinking the plot to that extent. There is no challenge to the reservation itself; there cannot be, for that would adversely afect the rights and benefts that have come to the Society. The Society is aggrieved simpliciter by the MCGM instead agreeing to accept a built up market in which it can house PAPs, and allowing the developer to construct atop that municipal market. It is difcult to see how the Petitioners are even remotely afected by this.

61. The policy is not shown to be unlawful or in confict with the pubic purpose or any law. The permission granted is not shown to be contrary to the policy. The challenge on this ground to the accommodation reservation is, therefore, in view our view entirely without substance.

RE: CONSTRUCTION OF ELECTRICITY SUBSTATION IN BASEMENT:

62. Mr Sanglikar’s argument is that in constructing of electricity substation in basement the Developer has violated DCR 26 and that the MCGM could never have permitted this.

63. DCR 26 reads thus:
“26. Electric Sub-Station:-
In every case of development/redevelopment of any land, building or premises, provision for electric sub-stations may be permitted as under if the requirement for the same is considered necessary by the concerned power supply authority;

TABLE
Serial No. Plot Area (Sq.m.) Maximum requirements depending on land
1. Plot upto 500 sq. m. each One single transformer substation of the size of 5m x 5m and height of not more than 5m.
2. Plots of 501 sq.m. to 1500 sq. m. One single transformer substation of the size of 8m x 5m.and height of not more than 5m.
3. Plots of 1501 sq. m. to 3000 sq.m. One or more transformer substation of the size of 12m. X 5.5m. And height of not more than 5m.
4. Plots of 3001 sq. m. upto 2 ha. Two numbers, single or two transformer substations or combination thereof of the size stipulated in serial No.3 above.
5. Lay-out or subdivision of a plot measuring 2 ha. or more A suitable site for an electric sub-station (11KV/33KV/110K V) as decided by the Commissioner.

Provided that the sub-station is constructed in such a manner that it is away from the main building at a distance of at least 3 m and in general does not afect the required side margin open spaces or prescribed width or internal access or larger open spaces, or as may be decided by the Commissioner.”

64. Now the present plot area is 14280 sq mtrs and would fall under Entry 4 of the table in question. Mr Sathe would argue that the proviso at the foot of the table only applies to plots that are within Entry 4 of i.e. of an area of 2 ha or more. For a multi-storied high-rise building defned in DCR 2(i) as being above 24 mtrs or a special building within the defnition of DCR 2(m), regard must be had to Regulation 43 read with Appendix VIII and particularly subclause 11(5) of Appendix VIII. Now DCR 43 deals with fre protection requirements. Its specifcally contemplates buildings having a height of more than 24 mtrs in DCR 43(1)(A). Appendix VIII as its caption shows is to be read with Regulation 43. There is a specifc reference to this Appendix in DCR 43(1) which says that for multi-storied high rise and special buildings the additional provisions relating to fre protection contained in Appendix VIII will also apply. Clause 11 deals with building services. Sub-clause (5) deals with transformers i.e. substation and this is how it reads:
“(5) Transformers:-
(a) If transformers are housed in basement, they shall be necessarily in the frst basement in a separate fre resisting room or four house rating, at the periphery of the basement. The rooms shall be protected by carbon dioxide or BCF fxed installation system to protect transformers. The entrance to the room shall be provided with a steel doors of two hours fre rating. A curb (sili) of a suitable height shall be provided with at the entrance in order to prevent the fow of oil from a ruptured transformer into other parts of the basement. Direct access to the transformer room shall be provided preferably from outside. The switch gears shall be housed in a separate room separated from the transformers bays by a fre resisting wall with fre resistance of not less than four hours.
(b) If housed in basement, the transformer shall be protected by an automatic high pressure water spray system (emulsifying).
(c) Transformers housed at ground foor level shall be cut-of from the other portion of the premises by fre resisting walls of four hours’ fre resistance.
(d) They shall not be housed on upper foors (Please refer Page No. 145 – proposed)
(e) A tank of RCC construction of capacity capable of accommodating the entire oil of the transformers shall be provided at lower level, to collect the oil from the catch-pit in an emergency. The pipe connecting the catch-pit to the tank shall be non-combustible construction and shall be provided with a fame-arrester.”

65. This clearly contemplates that for high rise buildings above 24 mtrs, the special additional provisions in Appendix VIII will apply and these provisions contemplate, as the emphasized portion shows, a transformer in a basement.

66. We are unable to understand how this argument can be mounted without any reference to these additional provisions that have clear application.

67. Moreover as both Mr Sathe and Mr Sakhare point out the substation is a dry-type and for this the Developer has a NOC from Tata Power as also from the Chief Fire officer of the MCGM.

RE: OPEN SPACE DEFICIENCY

68. Mr Sanglikar next contends that MCGM has unlawfully and illegally condone and open space defciency and the Municipal Commissioner had no authority or power under DCR 64 to do so. There is a layout of report of 9th May 2002 from the MCGM which says that if the FSI consumed was 1.00, there would be no open space defciency but the FSI consumed was 2.00 there would be total open space defciency of less than 20%. This was considered to be marginal. On the ground, it was found that there was the requisite open space between buildings A to E and commercial building in accordance with DCR 29.

69. There is, however, some level of defciency between the commercial building and wing A of residential building 1 to the extent of 7.32 mtrs.

70. DCR 64 deals with the discretionary powers of the Municipal Commissioner. It reads thus:
“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 Regulations 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 fnds such an authorisation to be reasonably necessary for the public convenience and welfare, even if it is not permitted in any land use classifcation.
(b) In specifc 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 modifed, except those relating to foor space indices unless otherwise permitted under these Regulations, provided that the relaxation will not afect the health, safety, fre safety, structural safety and public safety of the inhabitants of the building and the neighbourhood.”
(Emphasis added)

71. The argument from Mr Sanglikar is that the exercise of power under Section 64(b) could not have been done without an actual demonstration of hardship. But that is an incomplete reading of the provision. The absolute prohibition is in the exercise of discretion relating to FSI. That is forbidden to the Municipal Commissioner. What the Commissioner must ensure is that when, in exercise of his discretion he allows a relaxation, this does not afect the health, safety, fre safety, structural safety and pubic safety of the inhabitants of the building and the neighbourhood.

72. Now the defciency in question is 7.32 mtrs and there can be doubt about this because it is specially noted as an argument. The proposal for charging a premium for this relatively minor open space defciency is part of the MCGM note of 25th June 2002 at page 148. The chart shown to us from the record also bears out the submissions of Mr Sathe and Mr Sakhare (page 154). The defciency noted for buildings A and B on the Southern side is 1.76 mtrs, 2.7 mtrs and 2.37 mtrs in regard to the market or commercial building.

73. However in our view to show that the discretion was wrongfully exercised it is not enough to claim that Municipal Commissioner must record or that the Developer must show any specifc fnancial hardship. The demonstrable hardship is that by an insistence on the open space, and by not condoning the minor defciency, the proposed construction would not be possible. Actually it is the Petitioner that has not been able to show that as a result of this exercise of discretion there is slightest endangerment of health, safety, fre safety, structural safety or public safety of the inhabitants. The defciency in open space is based on the concession report of 28th July 2003 (page 142).

74. The marginal open space defciency on the Southern side is, as noted above only 1.76 mtrs. This is so insignifcant to admit of any real challenge.

RE: SEGREGATING DISTANCE:

75. Mr Sanglikar’s next submission that the Municipal Commissioner impermissibly and unlawfully condoned a defciency in “segregating distance”. This will require some explanation. Under the DCRs, the ‘segregating distance’ is the linear distance on the ground between plot boundaries. It applies only where the designated and approved user of the two plots difers. Where both plots are of the same user, then these restrictions or requirements will not apply. But where one plot is of an industrial user and the immediately next plot is of a commercial or residential user then there is a requirement that a specifed distance be maintained from the plot boundaries.

76. The relevant provision is DCR 29. This is captioned ‘open space requirement’. It does not deal exclusively with segregating distance but generally with plot open space requirements. In this regulation, sub-clause (5) reads thus.
“(5) Front set-backs from the Street Line/Plot Boundary and set-backs from the zonal boundary in the diferent zones shall be as in Table 10 hereunder.”

77. The references is to table 10, and this table is itself in three parts, A, B and C. There is no dispute that it is Table 10(C) that is applicable. This references a setback from the zonal boundary in industrial zones measured in mtrs. This is how the table reads.
“C. Set-back from Zonal Boundary in Industrial Zones (in mtrs)

TABLE
Serial No. (1) Location of plots (2) Type of building (3) Set-back in zones (m) (4)
1 Island City .. Industrial building I-1:6m I-2:9m I-3:9m
2 Island City .. Residential building, if permitted, due to conversion of zone I-1:6m I-2:9m I-3:9m
3 Island City .. Other permissible nonindustrial user if permitted in industrial zone (I) 4.5m upto 4 storeys or 16m in height (ii) for heights more than 16m, 4.5 plus 0.25m, for every meter or part thereof
4 Suburbs, extended suburbs and new reclamation areas at Wadala Salt Industrial Building- (a) if zone boundary coincides with the boundary of permanent open I-1:6m I-2:10.5m I-3:22.5m Pans. space such as R.G., P.G. etc (b) Otherwise I-1:10m I-2:22.5m I-3:52.5m
5 -Do- Residential building if permitted due to conversion of zone I-2:15m I-3:22m :52m (For obnoxious or hazardous industries adjacent to residential development)
6 -Do- Other nonindustrial users permitted (i) 6m upto 4 storeys or 16m. In height. (ii) For height more than 16m, 6m plus 0.25m, for every meter or part thereof

78. According to Mr Sanglikar since the plot in question is a residential building permitted due to conversion of a zone and the originating zone was an I-3 zone the segregating distance from the adjacent plot would have to be 22 mtrs. He argues that there is admittedly no such segregating distance of this length. The defciency is considerable; the actual distance is only 7 mtrs.

79. To begin with it is difcult to see how the society members are in any way afected by this. There is no demonstrated prejudice or hardship caused to them. There is no impact on their buildings or their respective residential fats. This is an argument, in our view, taken purely as a point of attack. Perhaps in some broader public interest litigation we might have been persuaded to consider whether any exemption or leniency should be shown as a matter of principle. But in a private dispute of this nature, in our view, unless the Petitioners are able to demonstrate that this reduced segregating distance and its condonation has some adverse impact, we would not ordinarily interfere with a decision on merits unless it is shown to be utterly perverse. In other words it would have to be shown that under no circumstances could the segregating distance ever be reduced.

80. Further, the submission is made as a generalised statement without reference to ground realities. There was a layout report of 9th May 2002 (page 213). It noted that on the east side of the plot boundary, the adjoining plot had a commercial user permitted. That commercial user matched the commercial user on the extant plot and there was therefore no need for a segregating distance on the east. There is a similarly a commercial user on part of the western plot boundary and there again no segregating distance was required. On the remaining area on the west there are non-hazardous small scale industries. These cause no nuisance and it was in that context that the Developer sought that the segregating distance defciency be condoned. Insisting on the segregating distance would make FSI utilisation on the plot virtually impossible. Since the adjoining plot had only a small scale industry on one part, the perceived endangerment being utterly minimal, the condonation was proposed.

81. In fact we are unclear whether by insisting on a maintenance of the full segregating distance the Petitioners themselves would be adversely afected. The point to be noted is that the distance is not between buildings but between the zonal plot boundaries. There is already a marginal space provided between the building on the plot and the plot boundary.

82. There is also an argument that can be made that the applicable entry in Table 10(C) for the commercial building on the plot is Entry 6, not Entry 4, and which requires only a 6 meter segregating distance for buildings of 16 meter height and above that 6 mtrs plus 0.25 mtrs for every meter or part thereof. In either case the distinction would be minimal.

83. The material on record shows us that at page 218 is another note of 11th June 2002 in reference to the layout note of 9th May 2002. Item A deals with the segregating distance. What this shows us is that the present commercial building was built where residential building 5 was frst proposed (Petition page 221). The original application was for conversion from I-3 zone to a residential zone. Since building 5 was not approved the revised proposal placed was for conversion to a commercial zone. It is on this account that the segregating distance was condoned. The impact of this is marginal and afects only one wing of building No.4. It is clear from Table 10(C) that the commercial building itself is covered by clause 6 and not clause 5. This means that the segregating distance invoked by Mr Sanglikar is not required at all for the commercial building.

RE: ACCESS RAMPS

84. There is very short submission by Mr Saglikar that the car ramp provided do not conform to the DC Regulations. This is seems to be a factual dispute that we cannot entertain. There are according to the MCGM two ramps each of which is a dual carriageway or two-way ramp of six meters width each for the basement in conformity with Regulation 38(18)(ii).

85. Mr Sathe adds that these are two cross-ramps. One leads to the basement towards the residential side car parks and the other leads to the commercial side car park. The entry points for both ramps are distinct. He confrms that both ramps are two-way ramps. There is no requirement pointed out to us that each ramp must be entirely distinct for the residential and the commercial building.

86. Lastly we fnd from a sketch map shown to us by Mr Sathe shows that the Petitioners are unafected by the access ramp to the commercial building. That commercial building is in the north east corner of the plot. The frst of the Petitioners’ buildings lies to its south and the others continue in a U-shape below it. Unless this is an attempt to gain exclusivity and get rid of the municipal market, we see no immediate prejudice to the Petitioners at all.

RE: IMPUGNED ORDER DATED 29TH JUNE 2019

87. With this we come to the impugned order at page 185, Exhibit “F”. This is a speaking order and it covers the points that have been canvassed before us and which we have dealt with the above. We fnd that there is a complete explanation provided in the impugned order. It is certainly not one that can be said to be perverse. The view taken by the Municipal Commissioner is not shown to be violative of any Regulation or statutory permission.

88. The view is plausible and there is nothing shown to us to successfully impeach the decision making process itself.

89. Having regard to the these circumstances, and having considered all the points that were canvassed before us, we are satisfed that there is no merit whatsoever in the Petition.

90. Mr Sanglikar has invited attention to the decision of Division Bench of this Court in Rajendra Thacker And Ors vs Muncicipal Corporation of Greater Mumbai And Ors., 2004 (4) Bom CR 1 to contend from the observations in regard to fle notings. We are not prepared to accept that this is any general principle of law that can be applied. Mr Sanglikar lays particular emphasize on paragraph 13 to say that actual hardship must be shown. In our view this will not assist him because even if one party claimed hardship, it is impossible to conclude that because that factor was taken into account other factors such as public convenience and public requirements were ignored. This can easily be demonstrated in the case of the commercial building and municipal market and the amenity space, for there is a specifc fnding that without that amenity space PAPs displaced by widening of the Mathuradas Vasanji road would have nowhere to go. This has to be correctly read to mean that the prejudice in question is to the MCGM itself and to its public policy as also to other PAPs. Accepting Mr Sanglikar’s argument would mean that discretion can only be exercised when hardship is demonstrated to the members of the Society or other vitally interested persons but no one else. We cannot accept any such onesided arguments.

91. Then there is reliance placed on another Division Bench Judgment of this Court in Ikram Suleman Qureshi vs Mumbai Building Repairs and Reconstruction Board And Ors., 2011 (3) All MR 61 This is cited to show that considerations of health and public safety cannot be lightly brushed aside in condoning open space defciency. But merely citing such an authority without being able to demonstrate how it applies is of little purpose. We have already seen how on the marginal open spaces question, the MCGM carefully considered that there was no adverse impact at all and therefore condoned the defciency.

92. There is also reliance placed on United India Insurance Company Limited vs Orient Treasures Private Limited, (2016) 3 SCC 49. on a question of interpretation, Vijay Narayan Thatte And Ors vs State of Maharashtra And Ors, (2009) 9 SCC 92 and Home Secretary, UT Of Chandigarh vs Darshjit Singh Grewal And Ors., (1993) 4 SCC 25. The frst two are said to be propositions for rules of interpretation. There is no quarrel with the proposition but we are unable to understand the application to the facts and circumstances of the case. The third decision in Darshjit Singh Grewal seems to us primarily to invoke a principle of promissory estoppel. We fnd no occasion for its application before us today.

CONCLUSION

93. We are also mindful of the well-defned parameters of our remit under Article 226 of the Constitution of India. We cannot and do not travel beyond the decision-making process. We cannot substitute an administrative or executive decision with our own, merely on the suggestion of a party or merely because another view is plausible. The applicable test has to be the one derived from Associated Provincial Picture Houses Ltd vs Wednesbury Corporation, (1948) 1 KB 223. This is the well-known test of ‘Wednesbury unreasonableness’, and it has been steadily applied by our courts. The fundamental test is that for a challenge to succeed the assailed decision must be so unreasonable that no rational person could have ever arrived at it. On its own, this carries a secondary requirement: there must be a facial demonstration of perversity and Wednesbury unreasonableness failure. If one is required to go through some convoluted process of reasoning, then there can simply be no question of perversity.

94. In this regard, the entire or fundamental approach of the Petitioners seems to us to be misconceived. It is never for the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India to substitute a discretion exercised by an authority which is conferred with a discretionary power. It is equally not possible for Court to direct an authority to exercise discretion in a particular manner. If that was done, the entire element of discretion would be lost and rendered otiose.

95. We are unable to fnd any merit in the petition. It has not been shown to us that any DCR has been violated. On at least two counts, the Society’s interpretation is demonstrably incorrect. On all grounds, there is the reasonable or plausible view taken in the impugned decision. The decision-making process cannot be faulted.

96. We reiterate that we have made no observations in regard to the private disputes between the Society and the Developer.

97. We also record that we have dealt with and noted the only points and arguments that were canvassed before us by Mr Sanglikar. There may be other points or grounds in the Petition but no arguments were advanced on any grounds other than the ones we have noted and dealt with.

98. The Petition is dismissed. There will be no order as to costs.

99. After this judgment was pronounced, Mr Sanglikar prays for continuation of the order passed by the Hon’ble Court of India on 6th September 2019.

100. This request is opposed by Respondents Nos. 5 and 6.

101. Having heard both sides on this point, we fnd that once the Petition has been disposed of fnally dealing with all the contentions that have been raised before us and fnding that there is no merit in the same, we cannot restrain the Municipal Corporation of Mumbai from considering the application of Respondents Nos. 5 and 6 for grant of an Occupation Certifcate. The Municipal Corporation cannot be restrained from exercising its discretionary power of considering such an application and dealing with it in accordance with law. We also cannot direct the Municipal Corporation to exercise its discretion in this behalf in a particular manner.

102. We fnd the request, therefore, to be misconceived. It is refused.