Full Text
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 136 OF 2021
IN
NOTICE OF MOTION NO. 1170 OF 2021
IN
L.C. SUIT (ST.) NO. 3729 OF 2021
ANAND APARTMENT CO-OP HSG.
SOCIETY LTD. } APPELLANT/
(ORIG. PLAINTIFF)
AND ORS. } RESPONDENTS/
(ORIG. DEFENDANTS)
* * * *
Mr. Pradeep Aggarwal i/by. Mr. Ram Singh a/w. Mr. C.B.
Yadav, Mr. Pradeep Yadav a/w. Mr. Arjun Aggarwal, a/w. Mr. Vishal Singh, Advocate for the appellant.
Mr. Girish Godbole a/w. Mr. Ravindra Shirshikar, Advocate for M.C.G.M.
Senior Advocate Mr. Prasad Dhakephalkar a/w. Ms. Tanvi
Gandhi, with Mr. Atul Kshatriya, Mr. Sanmish Gala i/ by. Markand Gandhi & Co., Advocate for respondent no.1.
Closed for Order On : 10th January, 2022.
Pronounced Order On : 28th January, 2022.
Rane 2/23 AO-136-2021
JUDGMENT
1) Plaintiffs, have fled this Appeal under Order 43 Rule 1 (r) read with Section 104 of the Code of Civil Procedure, 1908, challenging the order dated 29th April, 2021, by which the learned Judge, City Civil Court, Mumbai declined to restrain defendant no.1(developer) from making construction on Plot no.391, at Motishah Cross Lane, Byculla, Mumbai.
2) Heard Mr. Pradeep Aggarwal, learned Counsel for the appellant; Mr. Girish Godbole, learned Senior Counsel for the Municipal Corporation and Mr. Prasad Dhakephalkar, learned Senior Counsel for respondent no.1. Factual matrix:
3) Plaintiff is a Co-operative Housing Society. It owns a building, situated at Plot no. C.S. No. 392, Motisha Cross Lane, Byculla, Mumbai. The defendant no.1 is, the Developer/Owner of adjoining plot no.391. Plaintiffs’ alleged, that the defendant no.1 in collusion with Planning Authority, started constructing ground plus 15 foors building on Plot no.391, as per development permission Rane 3/23 AO-136-2021 dated 15th April, 2020 which was void, being granted in breach of building regulations. Plaintiffs’ would assert, that, the development permission has been granted by the Planning Authority in defance of Development Control and Promotion Regulations for Greater Mumbai, 2034 (“DCPR” for short), by compromising the urban safety requirements. Plaintiffs would plead that, the building, then existing on Plot no.391 was demolished by the defendant no.1 and that distance between the old building prior to demolition and plaintiff’s building was approximately 9 feet/mtrs; however, as per approved plan, open space between their building and proposed building is 1.[5] meters. In other words, plaintiff’s case is, that the Planning Authority granted development permission, and approved plans under Section 45 of the Maharashtra Regional and Town Planning Act, by compromising the fre, and health safety, of inhabitants of neighbourhood. As well, plaintiffs’, would assert that the proposed construction on Plot no.391, would affect its’ members right to air and light. To assert these rights in the Suit (St.) No. 3729/2021, plaintiffs’ seek the following reliefs: Rane 4/23 AO-136-2021 “(a). That this Hon’ble Court be pleased to declare that the development permission and or grant of commencement certifcate dated 15/04/2020 and approved plan issued by the defendants no.2 for the development of proposed building known as cozy cottage in favour of defendant no.1 is illegal, improper and bad in law and same is required to be declare invalid, void and be cancelled in respect of the construction of the proposed building known as cozy cottage at C.S. no.391 situated at 1st, Motisha Cross Lane, (love lane), Byculla (E), Mumbai-400 027. (emphasis supplied) (b). That this Hon’ble Court be pleased to declare that the construction of the proposed building known as cozy cottage situated at C.S. no.391 situated at 1st Motisha Cross Lane, (love lane), Byculla (E), Mumbai-400 027 is illegal, improper, bad in law. (c). That this Hon’ble Court be pleased to passed the order directing the defendants no.1 and 2 to remove the illegal, improper and unauthorized construction work of the proposed building known as cozy cottage situated at C.S. no. 391 situated at 1st Motisha Cross Lane, (love lane), Byculla (E), Mumbai-400 027. (d). That this Hon’ble Court be pleased to grant the permanent order and injunction restraining the defendants, their offcers, servants, agents, person/persons claiming through them from carrying out any addition, alteration and or construction of any nature of the proposed building on the plot bearing C.S. 391 situated at 1st, Motisha Cross Lane, (love lane), Byculla (E), Mumbai-400 027.”
4) Pending suit, vide Notice of Motion NO. 1170/2021, plaintiffs’, sought an order, to restrain Rane 5/23 AO-136-2021 defendant no.1 from making construction on Plot No.391, on the premise that the development permission under Section 45 of the M.R.T.P. Act being granted in breach of DCPR, it was void. The learned trial Court declined the reliefs to the plaintiffs on the ground that, development permission, being a fnal order, its’ legality or correctness cannot be questioned, in the civil suit, in view of Section 149 of the M.R.T.P. Act, which contains express prohibition to deal with the matters specifed thereunder, unless the order complained of, is nullity. Mr. Aggarwal, learned Counsel for the appellants, would dispute this fnding, to contend that since development permission has been granted in gross defance of the DCPR 2034, and by compromising fre safety requirements, such a permission being void, the jurisdiction of the civil court was not excluded. Questioning the correctness of development permission, Mr. Aggarwal, would submit that, since the height of the proposed building is 54.13 meters, keeping 6 meters open space, between Southern side of plaintiffs’ building i.e. Plot no.392 and proposed building, although was, mandatory, yet, as per approved plan, the open space kept between, the two buildings is hardly 1.[5] meters. Mr. Rane 6/23 AO-136-2021 Aggarwal, to fortify his submissions, relied on the judgment of the Hon’ble Apex Court in the case of Supertech Limited Versus. Emerald Court Owner Resident Welfare Association and Ors. in Civil Appeal 5041/2021 (Arising out of SLP © No.11959/2014). In the case of Supertech (supra), development permissions granted by NOIDA (Planning Authority) were questioned and issue for consideration was, whether second revised plan for construction of adjacent ‘building blocks’ was in compliance with the applicable regulations at the time i.e. National Building Regulations, 2006 (“NBR” for short). Thus, in context of facts of the said case, the Hon’ble Apex Court referred to Regulations-24, 2.[1] of NBR, which provide that, distance between two adjacent building blocks is to be of minimum 6 meters going upto to 16 meters, depending upon the height of the blocks. Mr. Aggarwal, taking recourse to those Regulations (NBR) and relying on the observations in judgment paragraphs no.66, 67, 68 and 70, of Supertech (supra), would argue that, the Planning Authority having not kept 6 meters open space between two buildings, development permission was void and thus, jurisdiction of the Civil Court to entertain the Rane 7/23 AO-136-2021 suit was not excluded. Besides, Mr. Aggarwal would argue that, having not left required space between two buildings, fundamental right to air and light of the inhabitants of plaintiffs’ building, has been adversely affected. On these grounds, Mr. Aggarwal, seeks interference in the impugned order.
5) Mr. Dhakephalkar, learned Counsel for the respondent no.1 and Mr. Godbole, learned Senior Counsel for the Corporation refuted the submissions of Mr. Agarwal and would contend that,
(i) Development permission in question, is valid and has been granted in accordance with DCPR and it does not compromise either fre safety or other urban safety requirements contemplated in the Regulations.
(ii) The plot in question since affected by sanctioned D.P. road was reduced to small size requiring various concessions in planning, to accommodate existing rehab tenements (living Rane 8/23 AO-136-2021 in dilapidated and dangerous building constructed prior to 1940).
(iii) the Municipal Commissioner granted concessions in exercise of discretionary powers specifed under Regulation 6(b) of DCPR.
(iv) the concession granted by Municipal
Commissioner does not compromise health, safety, fre, structural and public safety of the inhabitants of the building and neighbourhood.
(v) the Regulation under Section 2(27) of the
M.R.T.P. Act, made under Section 159 would alone govern and regulate the manner in which development permission under Section 45 is to be granted and communicated.
(vi) the National Building Regulations (NBR) has no application to the permission to be granted under Section 45 of the M.R.T.P. Act. Rane 9/23 AO-136-2021
(vii) the evidence on record admits, that it was a case of ‘demonstrable hardship within the permission of Regulation 33(7) of the DCPR.
(viii) that since the development permissions and plans having been sanctioned strictly in accordance with the Rules and Regulations, the plaintiffs could not have questioned such permissions in the civil suit in view of Section 149 of the M.R.T.P. Act and therefore the impugned order requires no interference.
6) Having heard Counsel for the parties, the moot question falling for consideration is, Whether questioned development permission granted to redevelop the Plot No.392, under Section 45(1) of the M.R.T.P. Act was valid ? And if answer is in affrmative, whether plaintiffs’ could have questioned its’ correctness in the civil suit. Rane 10/23 AO-136-2021 Like manner other allied questions, arising for consideration are: (i)Whether development permission in question has been granted by compromising fre protection requirements stipulated under Regulation 47(A) of the DCPR ?
(ii) Whether redevelopment proposal under
(iii) Whether order dated 24th July, 2019 passed by the Municipal Commissioner in exercise of discretion under Regulation 6(b) of the DCPR, permitting modifcation of dimensions was in conformity with the intent and spirit of the Regulations ?
(iv) Whether impugned order calls for interference ?
Rane 11/23 AO-136-2021 REASONS:
7) Facts not in dispute are: (a) Plaintiff’s building is on Plot no.391; whereas proposed construction i.e. development permission has been granted in respect of Plot No.392; a plot adjoining to plaintiffs’ building. (b) Old building on Plot no.392 was constructed prior 1940, accommodating the tenants.
(c) Defendant no.1-developer moved a redevelopment proposal under Regulation 33(7) of the DCPR in respect of Plot no.392.
(d) Height of the proposed building is 54.30 meters. (e) Old building on Plot No.392 was a Cess building within the meaning of Section 82 of the Maharashtra Housing and Area Development Act, 1976. Rane 12/23 AO-136-2021 8) M/s. AIKYA Realty Private Limited-defendant no.1 (“Developer” for short), submitted the proposal for redevelopment (composite building) of the CESS building requiring rehabilitation of existing occupiers plus 50% incentive FSI, whichever is higher in accordance with DCPR-33(7) of 2034. The plot is abutting 12.20 meters wide DP Road. Regulation-41 of DCPR, provides for open spaces within building plots/layout for composite building. Particulars of open spaces required as per Regulations were as under: Side Open spaces required Open spaces proposed Defciency % of defciency West 3.00 3.00 Nil ---- North 6.00 1.50 4.50 75.00% East 6.00 1.50 4.50 75.00% South 6.00 6.00 Nil. Thus, it could be seen from the above table that open space defciency was maximum upto 75% on North and East side of the Plot. Plaintiffs’ building is on North side. Plaintiffs’ would therefore argue that as per the DCPR, space required to be kept open on the Northern and Southern side of the Plot, was six meters; yet Planning Authority, granted development permission, despite of the fact that, open space was just 1.[5] meters, as against 6 Rane 13/23 AO-136-2021 meters, by compromising urban safety requirements and therefore, it was void permission. To test the arguments, let me refer to Regulations. Part-IX of DCPR provides, for urban safety requirements. Regulation-47(1) provides, fre protection requirements. It stipulates the planning, design and construction of any building shall be such to ensure safety from fre and for high rise and special buildings, additional provisions relating to fre protection contained in Appendix-I shall also apply. Clause-(A) of Regulation-47 provides that, for proposals including one under 33(7), for rehabilitation/composite buildings, having height more than 32 meters upto 70 meters, atleast one side other than the roadside shall have clear open space of 6 meters at ground level, accessible from roadside. It may be stated that, under Old Regulations of 1994, in case of redevelopment proposal under 33(7) for a plot size 600 meters, 1.[5] meters open space was deemed to be adequate. However, after the judgment of the Hon’ble Apex Court, in the case of Municipal Corporation of Greater Mumbai and Others vs. Kohinoor City Infrastructure Company Private Limited, (2014) 4 SCC 538, the requirement to keep clear open space of 6 meters atleast on one side, (emphasized) Rane 14/23 AO-136-2021 other than roadside at ground level and accessible from roadside, is required to be maintained for maneuverability of fre engine. Therefore, keeping open space of 6 meters atleast (emphasized) on one side, which is accessible from the roadside is the mandatory requirement. The above chart shows, on southern side of the plot, 6 meters open space was proposed and approved as per Regulation-47(1) (A), which is on the side, other than the roadside. Indisputably in this case 12.20 meters wide DP road is on westside of the Plot, whereas, the 6 meters open space has been kept on the southern side of the Plot. Therefore, in consideration of the facts of the case, the Planning Authority has not compromised the fre safety requirement i.e. Regulation-47 of DCPR, while granting development permission to develop the plot in question.
9) Now let me address the issue, whether open space defciency on northern side of the Plot, has rendered the development permission, void. To appreciate the plaintiffs’ case, it would be appropriate to tabulate the then, existing open space and approved open space vis-avis plaintiffs’ plot/building. It is as under: Rane 15/23 AO-136-2021 Side Adjoining Property Existing Open Space Proposed Open Space Remarks West 12.20 mt wide Road 12.20 + 1.00 12.20 + 3.00 mt Improvement North Existing Gr.Fl+4 upper 0.00 + 1.50 0.00 + 1.50 No change East Open Plot Open Plot + 0.00 Open plot + 1.50 Improvement South Existing Gr.Fl + 4 upper
3.00 + 1.50 3.00 + 6.00 Improvement. Thus, on the northern side of the Plot, plaintiffs’ building stands. It is ground plus 4 upper foors. It could be seen that, then existing open space between plaintiffs’ building and old building on Plot No.392 (prior demolition), was 1.50 meters. As such, in approved plan, there is no change in open space, although, as per Regulations, 6 meters space is required to be kept open. In the circumstances, the question arising for consideration is, “Whether relaxation of open space from 6 meters to 1.50 meters on northern side of the Plot was legal, valid and and as per the Regulations and further whether a relaxation granted by the Commissioner has affected health safety, fre safety, structural safety and public safety of inhabitants of plaintiffs’ building ?”. Well, before answering this question, it may be stated that, developer requested the Planning Authority to condone open space defciency under Regulation-6(b) by charging premium as per policy. Regulation-6 of DCPR invest, Municipal Rane 16/23 AO-136-2021 Commissioner with discretionary powers which he may exercise in conformity with the intent and spirit of the Regulations. Regulation-6 Clauses (a) and (b) reads as under: “6. Discretionary powers (a) In conformity with the intent and spirit of these Regulations, the Municipal Commissioner may:- (i)modify the limit of a zone where the boundary line of the zone divides a plot, village boundary, CS/CTS No. as per records of revenue by a special permission; and (ii)authorize the erection of a building or the use of premises for a pubic service undertaking, Government, Semi- Government, Local Bodies for public utility purposes only, where he fnds such an authorization to be reasonably necessary for public convenience and welfare, even it is not permitted in any land use classifcation/zone by a special permission.
(iii) decide on matters where it is alleged that there is an error in any order,
Rane 17/23 AO-136-2021 requirement, decision, determination made by any municipal offcer under delegation of powers in application of the Regulations or in interpretation of these Regulations:
(iv) interpret the provisions of these
Regulations where a street layout actually on the ground varies from the street layout sown on the development plan: (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 affect the health, safety, fre safety, structural safety and public safety of the inhabitants of the building and the neighbourhood.” (emphasis supplied). Thus, it could be seen that in a case, where “demonstrable hardship” is apparent in development of the plot, the Commissioner is empowered to relax the dimensions, prescribed under the Regulations (except Rane 18/23 AO-136-2021 those relating to FSI), provided, relaxation will not affect health, fre, structural and public safety of the inhabitants of building and neighbourhood. Therefor, which are these specifc cases, disclosing “demonstrable hardship” for exercising discretionary powers. Expression, “demonstrable hardship” is defned under Regulation- 2(36). It means “plot under development/redevelopment affected due to Nalla, Nallah/river buffer, road widening, height restriction due to statutory restriction as per these Regulations such as railway buffer, height restrictions in the vicinity of Airport, height restriction in the vicinity of defense establishments, and/or any other restrictions as per the provisions of these Regulations affecting the project, odd shape plot, rehabilitation of existing tenants/occupants on small, size plot/s etc.”. Thus, understood, the “demonstrable hardship” is in relation to a Plot of which development or redevelopment is affected due to; (i) Nalla, (ii)Nallah/river buffer, (iii) road widening, (iv) height restriction due to statutory restriction as per these Regulations, (iv) height restrictions in the vicinity of Airport, defense establishments or odd shape plot, (v) rehabilitation of Rane 19/23 AO-136-2021 existing tenants/occupants on small size plots etc. Therefore, defnition of “demonstrable hardship” is inclusive, and it may admit such other factors because of which development of the Plot would be affected. In the backdrop of the aforesaid provisions, let me ascertain which factors have affected redevelopment of Plot in question and whether Municipal Commissioner was justifed in relaxing the requirement of open spaces and condone the open space defciency on north and east side of the Plot, which was 75% maximum. 10). Indisputably, developers submitted a plan and accordingly proposal was put up for concessions approval for consumption of full FSI under Regulation-33(7). The area of the plot is 560.04 sq.meters. As per certifed list of Mumbai Building Repairs & Reconstruction Board (MBRRB), there were 18 existing tenants. The proposed building was designed by keeping 3 meters open space on front side and 1.[5] meters open space on two sides and 6 meters open space on southern side, accessible from the roadside as per provisions of DCPR-47(1)(A). Hence, there were planning restraints and it was not possible to Rane 20/23 AO-136-2021 accommodate all existing tenants on one location and therefore rehabilitation of few tenants was proposed on different locations. Accordingly, splitting of residence of rehab tenants was allowed. Although, the plaintiff has not challenged this concession/relaxation granted by the Municipal Commissioner for splitting of residence of rehab tenants, yet this fact would show that, there was apparent hardship in developing the plot under Regulation-33(7) of DCPR. Now, in so far as, condoning/relaxing the space defciency (75%) on North and East side of Plot, Corporation justifed it on the following grounds emerging from data note sheets, annexed to Affdavit-in-reply; viz “(i) The proposal u/r is under D.C. Regulation-33(7) wherein FSI 3.0 is to be consumed.
(ii) It is not possible to go above 70.0 mtrs height on account of rules and regulation governing high rise building above 70.0 mtrs.
(iii) In order to accommodate rehab tenants with their respective agreed rehabilitation areas there are severe planning constraints.
(iv) Proposal does not become viable unless FSI 3.0 along-with permissible fungible compensatory FSI is consumed. Rane 21/23 AO-136-2021
(v) To enable to consume the said built up area there is hardship in providing required open spaces.
(vi) The open spaces envisaged in D.C. Regulation cannot be provided being the proposal of consumption of full permissible FSI of 3.00 which is a major hardship.. That being so, Municipal Commissioner’s order condoning/relaxing open space requirement on North and East side of the Plot, would not render development permission illegal, reason being, Commissioner found, that the redevelopment proposal under Regulation-33(7), was falling within the parameters of “demonstrable hardship”. Infact, from the note sheets, 4B Scrutiny Sheet for IOD/CC; 4C Reports on various concessions; comments of Assistant Engineer (BP); comments of Executive Engineer (BP), annexed to the Affdavit of Corporation, show that, development permission has been granted in conformity with the Regulations. As a consequence, I hold that development permission has been granted by not compromising safety requirements stipulated under Regulation-47A and the relaxation in relation to open space requirements, was in conformity with intent and spirit of Regulations. Rane 22/23 AO-136-2021
11. It may be stated that, Mr. Aggarwal, learned Counsel for the plaintiffs’ to a large extent relied on the judgment of the Supreme Court in the case of Supertech (supra), to contend that, open space between plaintiffs’ building and the proposed construction could not have been less than 6 meters. However, the observations and the fndings in Supertech (supra) in paragraphs-68, 69 and 70 were in context of Regulations with respect to the distance between two adjacent building blocks (Regulations-24.2.1.[6] of NBR, 2010); whereas in the case in hand, neither NBR nor NBC has application, since DCPR are framed in exercise of powers under Section 159 of the MRTP Act, would govern and regulate the development of buildings. Factually speaking, plaintiffs have neither questioned discretionary powers of Municipal Commissioner to relax the dimensions stipulated in the Regulations, nor challenged order relaxing space from 6 meters to 1.50 meters on Northern side of the Plot. There, challenge to development permission was not peripheral. In so far as, right to air and light is concerned, no substantive prayers have been made in the plaint. For all that reasons, in my view, the order granting development Rane 23/23 AO-136-2021 permission under Section 45 of the MRTP Act, was in conformity with the Regulations. As a consequence, plaintiffs’ could not have questioned its legality and validity in the suit in view of express bar contained in Section 149 of the MRTP Act. The moot question is answered accordingly. In the result, Appeal fails. It is dismissed and disposed of accordingly.
12. At this stage, learned Counsel for the appellant, requested to continue the ad-interim relief dated 01st September, 2021 and continued by the Hon’ble Apex Court in Civil Appeals No. 7106/7107 of 2021 for a period of four weeks from today. In consideration of the facts of the case, request is rejected. (SANDEEP K. SHINDE, J.)