Corporation of Calcutta vs. Raj Kumar
Narsing Pratap Singh Deo1
:
“Substantial” refers to the fact that the alteration and improvement had
neither been illusory nor inconsiderable; it was not merely nominal or
flimsy but it was an alteration and improvement which in comparison with
the structures already standing can be deemed to materially alter the
previous dispositions of the property, or the conveniences which were
available. It is not possible to lay down any clear and specific definition
of the word “substantial”. It must be a relative one. Sometimes, the
comparison of the floor area, sometimes the value of the structures, and
on other occasions other considerations may weigh with the authority for
determining whether in the particular facts of a case, the alterations and
improvements can or should be deemed to be substantial ones.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 143 OF 2012
Kohinoor CTNL Infrastructure Company
Private Limited & anr. ....Petitioners.
Vs.
The Municipal Corporation of Greater
Mumbai & ors. ....Respondents
CORAM:- DR. D.Y. CHANDRACHUD AND
R.D. DHANUKA, JJ
DATED:- 9 JULY 2012
ORAL JUDGMENT(Per Dr. D.Y. Chandrachud, J) :
1. Rule; with the consent of the Counsel for the parties returnable forthwith.
With the consent of the Counsel and at their request, the Petition is taken up for
hearing and final disposal.
2. The First Petitioner is the owner of a plot of land bearing Final Plot No.
46 of Town Planning Scheme-III situated at N. Kelkar Road, Shivaji Park,
Mumbai. The First Petitioner is developing a highrise Information Technology
Park and Residential and Public Parking Building. The development comprises
of three level basements for captive parking and three wings. Wing-A consists
of a ground floor and seven upper floors for shops and a restaurant; Wing-B
consists of a ground floor and 48 upper floors for office units; and Wing-C
consists of a ground floor and 32 upper floors. The dispute in the present case
relates to Wing-C. Wing-C envisages municipal public parking on the ground
floor and 14 upper floors and residential premises on eighteen floors above the
parking facility.
3. The Municipal Corporation of Greater Mumbai sanctioned plans for
Wings-A, B and C and issued an IOD on 15 February 2006. The Union Ministry
of Environment and Forests issued an Environmental Clearance for the
development of a commercial building on 22 August 2006. A Commencement
Certificate was issued by the Municipal Corporation on 13 September 2006. In
so far as is material to the present controversy, a commencement certificate has
been issued up to the fourteenth floor for Wing-C. Subsequently, the IOD was
amended on 23 April 2008 and 2 September 2009. The Joint Commissioner of
Police(Traffic) issued an NOC on 11 December 2009 for the development of a
multi-storeyed public parking lot. The State Government gave its in-principle
approval on 2 June 2010 for the construction of a multi-storeyed public parking
lot on the land under Regulation 33(24) of the Development Control Regulations
for Greater Mumbai, 1991. The Municipal Corporation issued a Letter of Intent
on 27 July 2010.
4. On 4 March 2011 the State Government directed the Municipal
Commissioner to send a proposal for amending Development Control
Regulation 33(24) so as to limit the height of parking towers to four floors and
to revoke all sanctioned proposals where commencement certificates had not
been issued. The Municipal Corporation thereafter sought to incorporate new
conditions in Sub-Rule (iv) of Regulation 33(24) of the Development Control
Regulations inter alia to limit the height of a public parking amenity to the
ground floor and four upper floors and two basements. The Corporation also
sought to provide a cap on the built up area for every parking space. On 22
June 2011, a circular was issued by the Municipal Corporation for prescribing
conditions under Clause (iv) of DCR 33(24) and to stipulate that all proposals
for public parking lots shall be considered subject to those conditions. The new
conditions sought to limit the height of public parking to a ground and four
upper floors and two basements and laid down conditions in regard to the
payment of premium and a cap on the built up area per parking space.
5 On 29 November 2011, a notice to show cause was issued to the
Petitioners under Section 51 of the Maharashtra Regional and Town Planning
Act, 1966 calling upon them to explain as to why the commencement certificate
which was issued on 30 October 2010 should not be revoked. The notice to
show cause inter alia relied upon the Circular dated 22 June 2011. The
Petitioners submitted their reply to the notice on 14 December 2011. On 22
December 2011, a stop work notice was issued to the Petitioners by which they
were directed to restrict the work of the public parking lot to the fourth floor
instead of the thirteenth floor.
6 On 27 April 2012 an order has been passed by the Additional Municipal
Commissioner. The order considered the status of the construction work as on
30 November 2011 namely, immediately upon the issuance of a notice under
Section 51 of the Act. The Additional Municipal Commissioner addressed
himself to a determination of whether “work is substantially completed on site
or otherwise for the purpose of Section 51”. On that issue, the Additional
Municipal Commissioner held that in about fifty percent of the area,
construction has progressed as on 27 December 2011 “beyond the stage which
can be termed substantial”. The Additional Municipal Commissioner found
that it is possible to construct a public parking lot consisting of a ground floor
and four upper floors on the portion where no substantial construction is done
without substantial changes in the structure already constructed. The final order
which is passed was in the following terms :
“As there is a substantial construction on core part of the plot, PPL done
in this part shall be allowed to the extent of already executed construction
as per report dated 27/12/2011. In the remaining portion of the plot,
where there is no substantial construction, PPL shall be limited to G + 4,
Developer is to be asked to modify his plans in consonance with modified
DCR.”
7 Counsel appearing on behalf of the Petitioners submits that :
(i) The impugned order of the Additional Municipal Commissioner
proceeds on an erroneous construction of the provisions of Section 51 to the
effect that work which has been “substantially completed” would fall within the
purview of the provision. Section 51, it was submitted, inter alia protects
operations that have “substantially progressed” on the date of an order revoking
or modifying permission to develop. However, no such order shall affect such
of the operations as have been previously carried out; or shall be passed after
these operations have “substantially progressed” or have been completed.
(ii) As a matter of fact, the Additional Municipal Commissioner found
that a substantial part of the construction has been completed on the core
portion. Having regard to the finding of fact which has been arrived by the
Additional Municipal Commissioner, it is impermissible to direct the Petitioners
to restrict the work to the construction of a public parking lot comprising of only
a ground floor and four upper floors;
(iii) The Municipal Corporation has, in its affidavit in reply, not
disputed the factual position that the total cost incurred by the Petitioners for the
construction of the basement and a ground floor and four upper floors upto the
relevant date was Rs. 59.51 Crores. The civil cost of construction of a public
parking lot of a ground floor and thirteen floors including the cost of
construction of the basement was estimated to be Rs. 167 Crores. The
expenses which have already been incurred cannot be regarded as being
insignificant and would establish that the work had, in fact, substantially
progressed.
(iv) The construction of a foundation has proceeded on the basis of the
permission that was granted by the Municipal Corporation for construction of a
public parking lot of a ground floor and thirteen floors together with the
basement. In these circumstances, the Petitioners were entitled to the protection
that is accorded by Section 51 and the impugned order would have to be set
aside.
8 Counsel appearing on behalf of the Municipal Corporation submits that in
2008, the Development Control Regulations were amended to provide for public
parking lots to be constructed by developers. In consideration of the
investments to be undertaken by developers, a provision was made for an
incentive FSI. On 22 June 2011 a circular was issued by the Municipal
Corporation adding certain conditions for the grant of permission to construct
public parking lots. The Municipal Corporation inter alia sought to restrict the
permissible area and height to three basements, a ground floor and four upper
floors. In Petitions which were filed before this Court under Article 226 of the
Constitution, the Municipal Corporation made a statement before the Court to
the effect that the circular would not be applied to the Petitioners in those
petitions and the Corporation would move the State Government for an
appropriate modification of the Development Control Regulations. In
pursuance thereof, a draft notification was published on 19 March 2012.
Counsel submitted that the object of the proposed modification is to ensure that
public parking lots would have a height that would ensure that the amenity is
actually used by the members of public. Allowing construction of parking
facilities beyond a certain height would be self-defeating. In the present case, it
was urged that the Additional Municipal Commissioner had, upon due
consideration of the facts, come to the conclusion that only a part of the work of
the project had been carried out by the Petitioners and he was, therefore,
justified in taking into consideration the proposed change sought to be made in
the Development Control Regulations by the draft as contained in the
notification dated 19 March 2012.
9 Section 51 of the Maharashtra Regional Town Planning Act, 1966 confers
power on the planning authority to revoke or modify a permission for
development where the authority considers that it is expedient to do so, having
regard to the development plan prepared or under preparation. The proviso to
Sub-Section 1 of Section 51 is as follows :
“51. (1) If it appears to a Planning Authority that it is expedient, having
regard to the Development plan prepared or under preparation that any
permission to develop land granted [for deemed to be granted] under this
Act or any other law, should be revoked or modified, the Planning
Authority may, after giving the person concerned an opportunity of being
heard against such revocation or modification, by order, revoke or modify
the permission to such extent as appears to it to be necessary :
Provided that
(a) where the development relates to the carrying out of any building or
other operation, no such order shall affect such of the operations as have
been previously carried out ; or shall be passed after these operations have
substantially progressed or have been completed;
(b) where the development relates to a change of use of land, no such order shall be
passed at any time after the change has taken place.”
This is a provision made in the interest of preserving the sanctity of a
development plan. The Act refers specifically not only to a Development Plan
which has been prepared but also to that which is under preparation. The intent
is to ensure that a development which would impede or be detrimental to the
realisation of the purposes of a development plan that is already prepared, or
even one that is under preparation should be regulated. This is how sub-section
1 empowers the planning authority to modify or revoke a planning permission
already granted to develop land. But the legislature was cognisant of the fact
even before a permission is revoked or modified, planning permissions may
have been acted upon and work may have commenced. To deal with such cases,
the legislature has drawn a balance through the proviso.
10 Clause (a) of the proviso makes it clear that in a case where a building is
being constructed or other operation is being carried on, an order of revocation
or modification of a development permission shall not affect operations which
have been previously carried out nor shall an order of revocation or
modification be passed after these operations have substantially progressed or
have been completed. Clause (b) deals with a situation where the development
permission was for a change in the use of land and, acting on the permission, the
change has taken place already.
11 Clause (a) of the proviso is in two parts. The first part of the provision
protects those operations which have been previously carried out. The second
part has the effect of imposing a restraint upon the passing of an order of
revocation or modification where operations have either substantially progressed
or have been completed. Since the second part refers to a situation where
operations (i) have substantially progressed; or (ii) have been completed, the
expression “substantially progressed” cannot be read to mean the same thing as
the completion of operations. If the legislature intended both the phrases to
mean the same thing, there was no reason to introduce a surplusage.
12 The Additional Municipal Commissioner, has in the present case,
proceeded on the basis of a patently wrong appreciation of the underlying legal
principles. The test which the Additional Municipal Commissioner applied is :
whether the work is substantially complete on site or otherwise on the relevant
date for the purpose of applying the provisions of Section 51. The Additional
Municipal Commissioner was required to determine as to whether the
operations have substantially progressed, since there is no dispute about the fact
that the project has not been completed.
13 The impugned order of the Additional Municipal Commissioner takes
note of the fact that on 27 December 2011 the work of the parking lot wing upto
the fourth floor had been partially completed. The order takes note of the fact
that in about 50% of the area construction has progressed as on 27 December
2011, “beyond a stage which can be termed substantial”. As a matter of fact,
even the operative part of the order takes due note of the position that there is a
substantial construction on the core part of the plot. In view of this finding, it is
quite evident that the condition which has been laid down in Clause (a) of the
proviso to Section 51 is met because the order itself contains an
acknowledgement of the fact that operations had substantially progressed.
14 In the Petition as amended, a valuation has been made of the estimated
cost of Rs. 167 Crores of constructing a public parking lot consisting of a
ground floor and 13 upper floors. The Petitioners have stated that they have
incurred a total cost of Rs. 59.51 Crores towards construction of a ground floor
and four floors including the basement. This aspect has not been dealt with in
the affidavit in reply.
15 Looked at from either perspective, it is clear that on the basis of the
material which weighed with the Additional Municipal Commissioner a
substantial progress of work has been achieved and that the operation had
substantially progressed on the date on which a notice was issued to the
Petitioners to show cause under Section 51 of the Act.
16 Development Control Regulation 33(24) provided for the governing
conditions for the grant of permissions for the development of public parking
lots. The Municipal Corporation decided to modify DCR 33(24) along the lines
of an administrative circular dated 22 June 2011. The Corporation may be
justified in the reasons for which it proposed the modification. The Corporation
has submitted that in the absence of height restrictions, it would be open to a
developer to construct a building for housing a parking lot in the form of a
tower which when constructed may not be fully utilised by the public. Since
incentive FSI is to be conferred by the Municipal Corporation upon the
developer, the proposed modification seeks to put in place a cap on the height of
the parking lot and on the maximum area that would be used for the purpose of
parking motor vehicles. A draft notification was issued by the Government of
Maharashtra in the Urban Development Department on 19 March 2012. The
draft envisaged inter alia that the height of the public parking amenity would be
limited to a ground floor plus four floors and three basements. Among the
other restrictions, the draft notification imposes a cap, an outer limit on the
maximum built up area per parking space. Significantly, the concluding part of
the notification states that all the developments which have been given
permission in accordance with the D.C. Regulations of 20 October 2008,
“except those which have progressed substantially”, will have to follow the
regime of the amended D.C. Regulation 33(24) and would be governed by the
payment of premium to the extent stipulated in the notification. Hence,
consistent with the provisions of Section 51, the draft notification also
recognises that there may be projects which have progressed substantially
before the new norms have been published, after requisite sanctions were
granted and substantial progress was made in the work of development. The
project in the present case would on the basis of the material on record meet
that description.
17 For the purposes of the present case, it is not necessary for the Court to
render an exhaustive description of when a work of development can be
regarded as having substantially progressed. Ultimately whether a work of
development has substantially progressed must be dealt with on the basis of the
facts of each individual case and no general principle can be laid down in that
regard. Perhaps some guidance can be derived from the judgment of a Division
Bench of the Calcutta High Court in Corporation of Calcutta vs. Raj Kumar
Narsing Pratap Singh Deo1
:
“Substantial” refers to the fact that the alteration and improvement had
neither been illusory nor inconsiderable; it was not merely nominal or
flimsy but it was an alteration and improvement which in comparison with
the structures already standing can be deemed to materially alter the
previous dispositions of the property, or the conveniences which were
available. It is not possible to lay down any clear and specific definition
of the word “substantial”. It must be a relative one. Sometimes, the
comparison of the floor area, sometimes the value of the structures, and
on other occasions other considerations may weigh with the authority for
determining whether in the particular facts of a case, the alterations and
improvements can or should be deemed to be substantial ones.”
18 In the facts of this case, the admitted position as accepted in the order of
the Additional Municipal Commissioner indicates that the work of development
had substantially progressed by the time a notice to show cause was issued
under Section 51 of the M.R. & T.P. Act, 1966. The impugned order passed by
the Additional Municipal Commissioner restricting the Petitioners to a height of
a ground floor and four upper floors in deviation of the permission granted
1 AIR 1954 Calcutta 20
earlier is therefore contrary to law. Hence, the impugned order would have to
be quashed and set aside and is accordingly set aside. The stop work notice
which has been issued to the Petitioners on the basis of the notice to show
cause dated 29 November 2011 is to that extent quashed and set aside. Rule is
made absolute in these terms. There shall be no order as to costs.
(Dr. D.Y. CHANDRACHUD, J)
(R.D. DHANUKA, J)
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