Distinction between reconstruction and redevelopment of property

"reconstruction" implies re-erecting the structure exactly as it was,
without any change, the term "redevelopment" involves an erection of
a new structure with a completely new plan, dimensions etc.

WRIT PETITION NO. 1469 OF 2009
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
Official Trustee, State of Maharashtra, a
Statutory Authority under The Official Trustees
Act, 1913
Versus

 Maharashtra Housing & Area Development
Authority.

CORAM : S.J. VAZIFDAR, &
K.R. SHRIRAM, JJ.

THURSDAY, 06TH MARCH, 2014
Citation;2014(6) MHLJ 492


JUDGMENT : [Per S.J. Vazifdar, J.]
Respondent No.1 is the Maharashtra Housing & Area
Development Authority (MHADA). Respondent No.2 is the Mumbai
Building Repairs & Reconstruction Board (MBR&RB). Respondent
No.3 is the State of Maharashtra through the Urban Development
Department (UDD).
Respondent No.4 - M/s. Earth Design &
Developers is the developer.
Respondent No.5 is the Municipal
Corporation of Greater Mumbai. ("BMC" or "Corporation")
2.
The Official Trustee originally sought an order setting aside a
notice dated 28th April, 2009, issued by respondent Nos.1 and 2 under

section 95-A of the Maharashtra Housing & Area Development Act,
1976 (MHADA Act) issued in the name of the Poojari of the Shree
Venkatesh Balaji Temple. The petition was amended twice. By the
first amendment the Official Trustee also sought an order setting aside
all the building plans, permissions, NOCs granted by respondent No.1
to 3 and 5 for the re-development of the temple. The Official Trustee
sought an order setting aside the orders / permissions granted by

MHADA and MBR&RB, whether under DC Regulation No.33(7) or
under any other DC regulation for the re-development or development
of the temple. Lastly, the Official Trustee sought an order directing
respondent No.5 not to grant any transferable development right
certificate (TDR Certificate) to the developer, i.e., respondent No.4
unless and until the actual area measurement is done of the plots now
bearing C.S. No.113 and 1/113 and the alleged illegalities and
irregularities in the building plans and also the development scheme
are removed.
3.
On 4th October, 1927, this Court appointed the Official Trustee
as the sole Trustee of the Shree Venkatesh Balaji Temple as well as the

properties of the temple, including its funds and immovable property.
The immovable property comprises, inter-alia, of a plot of land
admeasuring 3240 square yards bearing C.S. No.113. The immovable
property is located in Walkeshwar, a prime locality of Mumbai.
According to the Official Trustee, a Dharamsala was also constructed
By an order dated 12th April, 1950, this Court had authorized

4.
on the land.
the then Official Trustee to lease out an area of 1600 square yards of
the said property. By a further order dated 26th September, 1951,
79.11 square yards was permitted to be given on lease.
Pursuant to
the above orders, agreements were entered into on 12th April, 1950
and 18th January, 1952, by which the Official Trustee leased an area
of 1679.11 square yards from the original C.S. No.113. These leases
were in favour of one C.U. Padia which were then assigned to M/s.
Vijay Associates.
This leased portion was then shown as C.S.
No.1/113 in the revenue records - P.R. Card. Upon the sub-division,
thereof, C.S. No.113 comprises of land admeasured 1561 square yards
and C.S. No.1/113
which was given out on lease as aforesaid,

admeasured 1679.11 square yards.
M/s. Vijay Associates utilized the entire FSI available on plot
bearing C.S. No.1/113 by constructing thereon, a building named Ritu
Apartments.
By an order dated 29th January, 1982, in Trust Petition No.18 of
1981, this Court sanctioned the use by M/s. Vijay Associates in the
construction of Ritu Apartments of 4500 square feet FSI out of C.S.
5.

No.113.
On 19th February, 1991, the Ministry of Environment, Central
Government, issued a Coastal Regulation Zone Notification (CRZ
Notification, 1991). We will refer to this Notification while dealing
with the Official Trustee's submissions. Suffice it to note at this stage
that the property falls within CRZ-II.
6.
The Official Trustee and the developers - respondent No.4
entered into a Memorandum of Understanding dated 29th November,
1994.
The Memorandum recites that the Official Trustee invited
tenders and offers for the sale of the said premises on 'as is where is'

basis.
The premises were described in the Fourth Schedule. The
developers offer of Rs.1,36,00,000/- was the highest. Clauses 2, 3, 4,
13 and 14 read as under :
"2.The Vendors hereby declare that on the said portion
of the said property there is a temple thereon. The
Purchasers at their entire costs have agreed to fullfill the
object of the trust that is to maintain, repair and
renovate the existing SHRE VENTAKESH BALAJI
TEMPLE on the said property and as per the directions,
if any, given by the Heritage Society.
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3. The Vendors hereby declare that on the said portion
of the said property there is a structure standing thereon
which is occupied by several tenants. It shall be the
responsibility and liability of the Purchasers to deal &
or to settle with the tenants on such terms and conditions
as they deem fit and proper and all costs, expenses for
rehabilitating the tenants shall be borne by the
Purchasers alone.
................
13.
The Vendors have agreed to sell the said
property more particularly described in the Fourth
Schedule hereunder annexed to the Purchasers, and the
Purchasers have agreed to purchase the same from the
Vendors for agreed consideration amount of
Rs.1,36,00,000/- (Rupees One Crore thirty six lakhs
only).
14.
The Purchasers on or before the execution of
this agreement have paid to the Vendors the sum of
Rs.10,00,000/- (Rupees Ten Lakhs Only) as per the
particulars given in the receipt as an earnest money
token advance deposit amount, the receipt of which
amount the Vendors hereby admit and acknowledge."
The Fourth Schedule states :

7.
"ALL THAT PIECE OR PARCEL of land of ground
having balance F.S.I. of about 2294 sq. ft. area
situate, ............ bearing ..............cadestral survey
No.113 .......... containing by adm.1,560.89 sq. yds.
equivalent to 1305.10 sq. meters or thereabouts together
with the Temple and Dharamshala and chawls standing
thereon known as SHRI VENTAKESH BALAJI
MANDIR.........."
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Three Public Interest Litigations were filed opposing the sale.
Further, the Government of Maharashtra by a letter dated 7th January,
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1995, directed the Official Trustee not to pass any final orders without
the permission of the Government. By a further letter dated 2nd
March, 1995, the Government of Maharashtra informed the Official
Trustee that the temple and the adjacent property was being included
in the list of buildings and structures of historical / aesthetic and
architectural importance in the surrounding precincts of the city to be
protected and conserved. The Official Trustee was, therefore, directed
to await final orders from the Urban Development Department.
8.
The Developers filed Trust Petition No.5 of 1995 seeking the
sanction of this Court for the sale of the property as per the MOU
dated 29th March, 1994. The Indian Heritage Society (IHS) was
impleaded as respondent No.2. The IHS had also filed Writ Petition

On 21st April, 1995, Regulation 67 was introduced in the
9.
No.147 of 1995 opposing the sale of the property.
Development Control Regulations (DC Regulations) which provided
for the transfer of development rights in respect of heritage properties.
We will be considering Regulation 67 while dealing with the
By an order and judgment dated 8th August, 1997, the Division
10.

submissions.
Bench of this Court disposed of the Trust Petition No.5 of 1995 and
Writ Petition No.147 of 1995. The order reads as under :
" This is a petition filed under the provisions of the
Official Trustees Act, 1913, seeking sanction of the sale
of the property pertaining to Shree Venkatesh Balaji
Temple at Walkeshwar, in pursuance of the memorandum
of understanding entered into between the Petitioner and
Official Trustee on 29-11-1994. The 2nd Respondent-
Indian Heritage Society was impleaded in the Petition
opposing proposal of the sale of the property.
Writ Petition No.147 of 1995 is also been filed
opposing sale of the Temple property in favour of the
Petitioner. Both these Petitions came up for hearing
before us. We heard the parties concerned and
ascertained their views. Ultimately, the parties to this
Petition have settled the issue and arrived at terms of
settlement.
The terms of settlement filed by the
Petitioner and the Administrator General and Official

Trustee has taken on record Terms of the settlement
according to us safeguard the interest of the Temple
property. Therefore, the Petition is disposed of in terms
of the above settlement.
11.
Writ Petition is also disposed of in view of the Order
passed in Trust Petition No.5 of 1995."
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The order was corrected by an order dated 20th November,
1997, which reads as under:
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"By Consent wherever the word "Settlement" occurs in
the Order dt. 8/8/97, same is deleted and substituted by
words viz. "Minutes of Order".
On Page 2, of the same order Sentence in 2nd para
commencing from 6th line i.e. "Ultimately .............
Settlement", shall be substituted by the sentence "Parties
submit to the Minutes of Order".
...........
The clauses of the Minutes of Order are important and read as
under :
"1.
There shall not be any sale of the temple,
chawl or temple land to the Petitioners. The temple,
land and its properties shall continue to vest in the
Official Trustee. The Petitioners shall be entitled to
avail of only the privilege of the F.S.I. available in
respect of the property including in the form of T.D.R. in
accordance with D.C. Regulation 67.
2. In consideration of the payment of a total sum of
Rs.1,36,00,000/- the Official Trustee shall make
available to the Petitioners the F.S.I. potential in respect
of the said property by way of Transfer of T.D.R.
Certificates.
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3. The Petitioners shall pay to the Official Trustee
forthwith, within a period of 30 days, a sum of
Rs.35,00,000/- for the purpose of repairing and
maintaining the temple. The Official Trustee will
through its own Architect repair the said Shree
Ventakesh Balaji Temple in accordance with the
Heritage Guidelines.
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4. The payment of the total balance consideration of
Rs.1,26,00,000/- (exclusive of the amount of
Rs.10,00,000/- which has already been deposited with
the office of the Official Trustee) shall be effected
against the transfer and endorsement of T.D.R.
Certificates in favour of the Developers by the Official
Trustee.
5. The Official Trustee will grant a Power of Attorney in
favour of the Petitioners' Director Bhupesh Jain for the
purpose of negotiating with and obtaining Consent
Agreements from Tenants in respect of the existing chawl
structure and for putting up a proposal for availing of
developable F.S.I. in the form of Development Right
Certificates (T.D.R.) in respect of the property. All costs,
expenses and charges incurred for obtaining
Development Right Certificates or T.D.R. including in
respect of the tenanted chawl will be borne by the
Petitioners. The Official Trustee will render necessary
assistance to the Petitioners for the purpose of obtaining
necessary sanctions from the Municipal and other
Authorities.
6. After receipt of possessions the Petitioners shall
comply with all reconstruction Municipal rules,
regulations and guidelines applicable to the heritage
properties.
7. The Petitioners undertake to the Court to comply with
these terms and conditions and with Development
Control Regulation 67 and strictly follow all the rules,
regulations and guidelines of the Municipal Corporation
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of Greater Bombay pertaining to heritage properties.
8. .......... [Clause 8 was deleted ]
9. Liberty to apply."
Clause 8, which was deleted, provided that the MOU shall stand
sanctioned, subject to the above terms.
Pursuant to the above order, the Official Trustee executed the
12.
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Power of Attorney (POA) dated 8th September, 1997, in favour of the
developer's Director one Bhupesh Jain. Clause 1, 3, 10, 13 and 15
thereof read as under :
"1.
To prepare plans in respect of the said property
described in the Schedule hereunder written and to
submit the same to the Bombay Housing & Area
Development Board, Municipal Corporation of Greater
Bombay and other Concerned Authorities for obtaining
approval of the same and to submit proposals and obtain
approval from time to time for the amendments of such
plans to the Municipal Corporation of Greater Bombay
and other Concerned Authorities and to take such steps
as are necessary with a view to obtain Development
Right Certificates in respect of the TDR FSI available in
respect of the said property described in the Schedule
hereunder written.
.................
3.
TO carry on correspondence with all the
Concerned Authorities and Bodies including the
government of Maharashtra in all its Departments,
Municipal Corporation of Greater Bombay and/or Town
Planning Department and other Concerned Authorities
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in connection with the said property with a view to
obtain TDR FSI in view of the said property falling
within the Heritage precinct.
..................
10.
TO give such letters and writings and/or
Undertakings as may be required from time to time to
the Municipal Corporation of Greater Bombay and or
other Concerned Authorities for the purpose of carrying
out the development in respect of the property as also in
respect of the repair reconstruction work of the structure
thereon and also for obtaining the Occupation and/or
Completion Certificate in respect thereof and for
obtaining Development Right Certificates in respect of
the balance TDR FSI in respect of the said entire
property.
................
13.
TO do all other acts, deeds matters and things
in respect of the said property described in the Schedule
hereunder written including to represent before and
correspond with the Municipal Corporation of Greater
Bombay, Maharashtra Housing and Area Development
Authority and the Bombay Housing and Area
Development Board and other Concerned Authorities for
any other matters relating to the sanctioning of the
plans, obtaining the Floor Space Index (F.S.I.) for the
repair reconstruction of the structure and/or for availing
of the balance FSI by way of T.D.R. in respect of the said
property. It is however made clear that the Development
Right Certificates in respect of the T.D.R. FSI will be
issued in the name of the Official Trustee, Maharashtra
State, Mumbai.
................
15.
TO enter into such arrangements and
Agreement as our Attorney may deem fit for the purpose
of obtaining consent from the Tenants and occupants in
occupation of the structure on the said property for the
purpose of repair and reconstruction of the Tenants
structures and for obtaining the Development Right
Certificates in respect of the balance FSI available in
respect of the said property, with the prior approval of
the Official Trustee, Maharashtra State and at the entire
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13.
risk, cost and expense of the said Attorney."
Correspondence ensued between the Official Trustee and the
developer in the course of which the Official Trustee contended that
only FSI of 2294 square feet was sold to the developer. The developer
contended that the Official Trustee was required to make available the
FSI potential in respect of the property by way of transfer of TDR
certificates and that the Official Trustee's contention was incorrect.
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The developer contended that the Official Trustee's reliance upon
Schedule D to the MOU referred to 2294 square feet FSI being
available was misplaced as the MOU, which was for the sale of the
property, was given a go-by to and instead, the rights of the parties
stood concluded on the terms and conditions stipulated in the minutes
of the order in terms of which the order dated 8th August, 1997, was
passed. These rival contentions are contained in the letter dated 19th
September, 1997, from the official trustee to the developer; 20th
September, 1997, from the developer to the official trustee and a letter
dated 22nd September, 1997, from the official trustee to the developer.
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14(A)
The Official Trustee thereafter filed a praecipe dated 22nd
September, 1997, for speaking to the minutes of the order dated 8th
August, 1997. The praecipe stated that no settlement had been arrived
at between the parties and, therefore, sought the substitution of the
word "settlement" with the words "minutes of order". This, as we
noted, was granted.
The Official Trustee also sought the deletion of the statement in
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the order that it was for the reasons separately recorded in the oral
order as there were, in fact, no such reasons separately recorded.
Mr. Chinoy, the learned senior counsel appearing on behalf of
the developer, stated that it is significant that in this praecipe, the
Official Trustee did not contend that what was sold to the developer
was only FSI of 2294 square feet.
(B)
Even after this praecipe, correspondence ensued between the
Official Trustee and the developer in the course of which they raised
their respective contentions - the Official Trustee contending that FSI
of only 2294 square feet was transferred to the developer and the
developer contending that it is entitled to avail of the potential FSI
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available in respect of the property, including in the form of TDR.
This is reflected in the developer's letter dated 27th September, 1997,
the Official Trustee's letter dated 4th October, 1997, the developer's
letter dated 10th October, 1997 and the Official Trustee's letter dated
21st October, 1997. By the letter dated 4th October, 1997, the Official
Trustee stated that the MOU mentioned 2294 square feet FSI being
available and that he had proceeded on that basis and, accordingly,
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submitted to the orders of the Court dated 8th August, 1997. He
further stated that he had come to know that the area available may be
more than double than that mentioned in the petition and what was in
his mind and that there was a clear misunderstanding and
misrepresentation. He stated that as an Official Trustee, he could not
cause any loss to the Trust by giving more than what was agreed or
mentioned in the documents viz. the Trust Petition No.5 of 1995 and
the MOU. By the letter dated 21st October, 1997, the Official Trustee
requested the developer not to act on the POA and to deliver up the
same to him to enable him to mention the area therein.
15.
As we noted earlier, the praecipe dated 22nd September, 1997,
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was disposed of by an order dated 20th November, 1997, by
substituting the word "settlement" in the order dated 8th August, 1997,
with the words "minutes of order" and by substituting the words
"Ultimately ........... settlement" with the words "parties submitted to
the minutes of order".
The MBR&RB - respondent No.2, by a letter dated 26th
16.
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November, 1997, responded to the developer's application dated 15th
September, 1997, for the redevelopment of the property.
The
developer was informed that it would eventually have to form a co-
operative housing society along with the minimum 70% of the old
occupants of the existing building; that all the occupiers of the old
cessed building should be rehoused in the newly reconstructed
building and that a suitable agreement should be made in this respect
on ownership basis and submitted to the MBR&RB duly executed
with at least 70% of the occupiers of the old building. In Clause 5(a),
the developer was informed of some of the facilities to be extended to
the occupants such as the allotment of the tenements in the newly
constructed building to persons as per the list certified by MBR&RB,
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the quantum of tenements / area to be handed over to the MBR&RB
17.
and the minimum area of each tenement.
Correspondence again ensued between the parties in the course
of which the Official Trustee contended that there were certain
discrepancies in the original area of the property and the area shown in
the sanctioned plans for Ritu Apartments which was on the sub-
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divided plot bearing C.S. No.1/113. The Official Trustee, therefore,
requested the developer not to submit any proposals for sanction and
to furnish the Official Trustee copies of all applications, plans etc.
submitted pursuant to the POA.
The Official Trustee raised a
grievance even then, by a letter dated 19th March, 1988, that he had
not been furnished with the necessary particulars and documents.
18(A)
By a communication dated 21st March, 1988, the
Heritage Committee of the Municipal Corporation conveyed its no
objection to the redevelopment plan on the terms and conditions
contained therein. The NOC considers in considerable detail, the
developer's application and the result of the site visit. Clause 7 notes
that the proposed new single storeyed structure was to be on the
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similar foot-print as that of the existing structure and also within the
same section profiles, height and elevation, landscape etc. On an
earlier occasion, the developer's Architect was requested by the
Heritage Committee to submit revised drawings as during the site
visit, the Architect had expressed his inability to maintain exactly the
same foot-print in the proposed structure as that of the existing
structure owing to restrictions such as the non availability of open
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spaces in certain locations, area / planning and other requirements of
the existing tenements and the minimum carpet area requirement as
per MHADA norms.
The NOC records that the Architect was
permitted to modify the foot-print marginally in the North-West corner
of the proposed structure, subject to certain conditions and that the
Architect had submitted the modified plans in accordance with the
directions of the Heritage Committee. The NOC records that the
modified plans were found to be in order from the heritage
conservation point of view and approved the same, subject to several
conditions, including the following :
"1.
that the existing foot-print will be maintained
in the proposed structure except at the north-west corner
of the plot (for convenience in open spaces, area
requirement of the existing
tenants, MHADA
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requirements etc. as stated by the Architect.
...............
5. that as the plans approved by the Committee do not
fully utilise the available FSI as permissible on the plot
under reference, the unutilised balance FSI will be
consumed by the developer by way of TDR in the same
Ward as perthe provisions of the Heritage Regulation
(DCR No.57).
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A copy of this NOC was forwarded by the developer to the
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(B)
6. that in case of any increase in permissible FSI in
future, no additional structures or extensions to the
existing structures will be proposed in the layout. The
surplus FSI may be consumed as per Condition No.5
above."
Official Trustee under cover of a letter dated 25th March, 1998.
Thereafter, correspondence ensued between the Official Trustee,
(C)
the developer and the authorities in the course of which the Official
Trustee and the developer raised their rival contentions between each
other as well as before the authorities concerned. The Official Trustee
called upon the developer to furnish, inter-alia, papers, plans and
documents submitted to the authorities failing which he threatened to
cancel the POA. The developer, in turn, contended that the POA was
irrevocable till the development right certificates were issued in its
favour and the question, therefore, of cancelling the POA did not arise.
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The Official Trustee, however, informed the developer that in view of
its failure to provide the necessary information, the POA stood
cancelled and called upon the developer to surrender the same. The
Official Trustee also informed the Municipal Corporation about the
revocation of the POA. In paragraph 13-A, at serial number 9, the
Official Trustee stated that the Executive Engineer of the Municipal
Corporation, however, took the view that the POA could not be
By an order dated 27th July, 1998, the Supreme Court dismissed
19.
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unilaterally revoked without obtaining orders from the Court.
in limine, the Official Trustee's petition for special leave to appeal
against the order dated 8th August, 1997.
20.
The developer by it's letter dated 1st August, 1998, addressed to
the Official Trustee stated that the matter had now also been
adjudicated upon by the Supreme Court and called upon him to co-
operate in the matter of arriving at arrangements with the tenants in
the property and in obtaining the necessary permissions in respect of
the TDR/FSI from the authorities as stipulated in the order dated 8th
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August, 1997, failing which, the developer stated that it would adopt
21(A).
contempt proceedings.
The Government of Maharashtra, by a letter dated 13th
August, 1999, informed the Municipal Corporation that the
developer's proposal had been examined in consultation with the
Housing & Special Assistance Department and conveyed the
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Government's approval to utilize the balance built up area in the form
of DRC (Heritage) in accordance with the provisions contained in
Development Control Regulations for Greater Mumbai, 1991 and
Heritage Regulations for Greater Mumbai, 1995 and other relevant
regulations / guidelines. The Government also stated that it had no
objection to waive the condition of handing over of requisite
the Bombay Housing and Area
percentage of floor space to
Development Board as provided in the 1991 DCR, subject to the
condition that each tenant would be accommodated with minimum
built up area of 225 square feet.
(B)
The Municipal Corporation, however, by a letter dated 18th
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February, 2000, informed the developer that the Official Trustee had
revoked the POA and that, therefore, the Municipal Commissioner had
directed that it's application for grant of DCR for heritage TDR could
not be processed further till the clearance was received from the
Official Trustee.
On 10th January, 2002, the developer submitted a fresh proposal
22.
ig
for re-development of the property before the MBR&RB under DCR
33(7) in view of the amendment to DCR 67 which introduced (iii)(a)
under :-
The amendment dated 25th January, 1999, reads as
in clause 2.
"(iii) (a) Provisions of Regulation 67 would be
applicable only in Grade I and Grade II category of
Heritage Building for reconstruction and redevelopment
of old buildings undertaken under Regulation 33(7),
33(8) and 33(9) of these Regulations."
23.
The MBR&RB, by a letter dated 21st February, 2002, informed
the developer that the Official Trustee had informed them that the
POA had been revoked and had also requested them not to grant the
permission sought by the proposal dated 30th January, 2002.
MBR&RB informed the developer that it's request, therefore, could
SRP                                                                                                                                                        22/87
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This led to the developer filing Contempt Petition No.48 of
24.
not be considered.
2002 against the Official Trustee alleging non compliance with the
order dated 8th August, 1997.
On 20th May, 2002, the learned Vacation Judge passed an order
directing the Official Trustee to inform MHADA and the Municipal
ig
Corporation that the POA was valid and directed the Official Trustee
not to obstruct the developer from obtaining the FSI potential in the
form of TDR certificates.
This order was, however, vacated by an order of the Division
Bench dated 30th July, 2002, on the ground that the matter could have
waited a proper hearing after the vacation.
25.
In the meantime, however, the developer applied for an NOC to
MHADA. MHADA, by its letter dated 6th June, 2002, granted the
developer an NOC for redevelopment of the property subject to
certain terms and conditions. One of the conditions was that only the
built up area of 1400.13 square meters could be utilized in the form of
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DRCs.
The occupants of the old building were to be re-
accommodated in the re-developed building in tenements admeasuring
a minimum carpet area of 225 square feet and/or maximum 753 square
feet as provided in the MHADA Act, 1976. A copy of this NOC was
forwarded to the Official Trustee.
It must be noted at this stage that MHADA in its affidavit stated
that in the special circumstances of this case, there was no stipulation
tenants/occupants. The NOC itself did not have this requirement
either.
ig
made for the formation of a co-operative society of the
The Official Trustee's grievance is that despite requests
26.
contained in his letters dated 11th July, 2002 and 29th July, 2002,
MBR&RB did not furnish a copy of the NOC or the developer's
proposal for the same. MBR&RB on 29th August, 2002, merely sent
the proposal without a plan.
27.
On 7th February, 2003, the Municipal Corporation sanctioned
the plans and granted an IOD in favour of the developer.
SRP                                                                                                                                                        24/87
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By a judgment and order dated 17th April, 2003, Contempt
28.
Petition No.48 of 2002, filed by the developer was disposed of. The
learned single Judge observed that although it could have been
contended by the developer that it was not open to the Official Trustee
to revoke the POA, the developer had not done so. The learned Judge
also observed that the developer was obliged to assail the Official
ig
Trustee's revocation of the POA and it was not sufficient merely to
assert that the POA was still binding on the Official Trustee. The
learned Judge observed that the developer's contention would entail a
piquant situation that this court, meaning obviously thereby the court
hearing the Contempt Petition, would be required to examine the
correctness or otherwise of the Official Trustee's revocation of the
POA which cannot be the scope of contempt jurisdiction. The learned
Judge also observed "Perhaps, remedy for such a declaration has
become time barred." The petition was essentially dismissed on the
ground that it was barred by limitation. The merits of the matter,
including as to the validity or otherwise of the revocation of the POA
by the Official Trustee was not decided.
SRP                                                                                                                                                        25/87
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The Official Trustee forwarded a copy of the order dated 17th
29.
April, 2003, to MBR&RB on 9th June, 2003 and 26th June, 2003. By
a letter dated 18th October, 2003, the Official Trustee also informed
the Municipal Corporation that the POA stood cancelled and,
therefore, requested the Municipal Corporation not to process the
In view
developer's proposal without the Official Trustee's consent.
ig
of the Official Trustee's letter dated 18th October, 2003, the Municipal
Corporation by it's letter dated 4th December, 2003, sought the
following clarification from MBR&RB.
".............................However, MHADA has issued N.O.C.
for the redevelopment of property vide letter
No.R.N.OC./F-938/M.B.R.&.R.B. of 02 dated 6.6.02
(Xerox copy enclosed herewith). Thereafter, this office
has processed the proposal for the redevelopment of the
said property. This office has already approved the
plans on 7.2.2003 and I.O.D. is issued. However, C.C.
is not released so far.
30.
In view of above, Chief Officer, M.B.R.&.R Board is
requested to clarify whether this office can still process
the proposal for redevelopment of property bearing C.S.
No.113 of Malabar Hill Division or otherwise."
MHADA, by its letter dated 2nd April, 2004, informed the
developer that in view of the order dated 17th April, 2003, in
SRP                                                                                                                                                        26/87
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Contempt Petition No.48 of 2002, it's NOC of 6th June, 2002, was
withheld till further orders and that MHADA would not proceed with
the developers proposal till it received a clearance from the Official
Trustee.
31.
This brings us to an extremely important development in the
matter - one which we find prevents the Official Trustee from raising
ig
most of the issues raised in the present petition. On 27th April, 2004,
the Official Trustee filed Trust Petition No.5 of 2004 under section 25
of the Official Trustees Act. The Official Trustee sought an order that
the developer was entitled to use only 2294 square feet FSI by way of
TDR failing which the Official Trustee be allowed to retain the
amounts deposited by the developer except the earnest money; for an
order directing the developer not to carry out any construction by way
of demolition or otherwise and an order that the Official Trustee be
allowed to dispose of the balance FSI by way of TDR in respect of the
property, i.e., FSI other than the 2294 square feet after calling fresh
bids from third parties.
The entire petition is important for it indicates that substantially
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all the points raised before us were raised therein. We will indicate
only a few of the main points raised in the Trust Petition. The Official
Trustee alleged that the power of attorney did not reflect the true
position and that he, therefore, informed the developer that it had
purchased only 2294 square feet of the FSI. The disputes and the
correspondence in this regard were referred to. The Official Trustee
also contended that the developer was not entitled to make use of the
ig
POA as it was wider than what was contemplated in the MOU and the
The Official Trustee, therefore,
order dated 8th August, 1997.
requested the developer to return the POA so that a proper POA
containing the provisions regarding the actual area of FSI of 2294
square feet could be affected. The Official Trustee stated that he was
aware that the developer intended submitting plans for obtaining FSI
of more than 2294 square feet and, therefore, requested the developer
to return the POA.
The Official Trustee referred to the entire
correspondence with the authorities concerned before whom the
developer had made applications for having the plans sanctioned for
obtaining NOC and the additional FSI. The Official Trustee also
referred to the correspondence in this regard where he had raised the
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contentions regarding the alleged irregularities in respect thereof. The
Official Trustee also referred to Contempt Petition No.48 of 2002, the
ad-interim order dated 20th May, 2002 and the order of the Division
Bench in Appeal No.503 of 2002 vacating the same as well as the fact
that in the meantime, on the basis of the ad-interim order, MBR&RB
had granted the NOC regarding the proposal for redevelopment of the
property as well as the FSI of 1400.13 square meters. The same was
ig
specifically challenged in the Trust Petition. The Official Trustee also
referred to the fact that Contempt Petition No.48 of 2002 was
ultimately dismissed by an order of this Court dated 17th April, 2003.
Based, inter-alia, on the above facts, the Official Trustee sought
several reliefs which we have referred to earlier.
32(A).
Trust Petition No.5 of 2004 was disposed of by an order
and judgment dated 9th March, 2005, of a learned single Judge. The
learned Judge held that it was clear that the Official Trustee was fully
aware that what was being conveyed to the developer was not just
2294 square feet FSI, but the entire FSI potential of the said property
which included the temple and the chawl; that it was too late in the
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day for the Official Trustee to seek a clarification of that order; that
the clarifications and directions sought were earlier rejected by this
Court as well as the Supreme Court and that in view thereof, the
question of granting any relief does not arise. The petition was,
therefore, dismissed.
Appeal No.713 of 2005, filed by the Official Trustee was
(B)
ig
dismissed by an order and judgment of a Division Bench of this Court
dated 10th October, 2005. The Division Bench held :-
"................ There is no dispute about the contents of the
minutes of order.
The minutes of the order in
paragraphs 2 and 5 abundantly make it clear that what
was conveyed was F.S.I. potential and available and
developable F.S.I. in the form of Development Rights
Certificate (TDR). Even in clause 2 it is clearly
mentioned that what was made available to the
respondents was FSI potential. Under these
circumstances, we find absolutely no error or illegality
with the order passed by the learned Single Judge. The
appeal is devoid of any merits and the same is
dismissed."
33.
The developer by its letter dated 1st December, 2005, forwarded
copies of the order in Trust Petition No.5 of 2004 to MHADA and
requested MHADA in the light thereof to further process its
applications and to vacate the stay on the NOC granted earlier by
SRP                                                                                                                                                        30/87
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MBR&RB, by a letter dated 24th March, 2006, called upon the
34.
MBR&RB.
developer to submit a bond indemnifying it against any adverse claim
if the stay on its NOC was vacated.
On 10th April, 2006, the
developer submitted the indemnity bond and requested MBR&RB to
vacate the stay on the NOC. MBR&RB, by a letter dated 14th June,
ig
2006, informed the developer that the stay on the NOC earlier granted
by it on 2nd April, 2004, was vacated in view of the order dated 10th
October, 2005 of the Division Bench. The developer was, therefore,
permitted to go ahead with the redevelopment work in accordance
with the NOC granted on 6th June, 2002.
35.
On 16th November, 2006, the Municipal Corporation issued a
commencement certificate in favour of the developer for re-
commencement of the work upto the plinth level.
36.
By a letter dated 7th March, 2008, addressed to the Municipal
Corporation, the Official Trustee contended that the plan ought not to
be approved as there was no order restoring the POA.
SRP                                                                                                                                                        31/87
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The Official Trustee claims to have been informed that some
37.
unknown persons had trespassed on the trust property, entered the
chawl adjacent to the temple and had started demolishing the rooms at
the instigation of the developer. The Official Trustee applied to the
Government of Maharashtra for appointing a High Power Committee
to look into the legality of the above plans. The Official Trustee was,
The Official Trustee thereafter filed Trust Petition No.5 of 2008
38.
ig
however, directed to approach this Court.
praying that he be divested of the responsibility of being a trustee of
the temple. The developer was respondent No.1 to this petition. On
23rd June, 2008, the Official Trustee addressed a letter dated 23rd
June, 2008, to the Mumbai Heritage Conservation Committee of the
Municipal Corporation alleging that there were certain discrepancies
in the plan and stating that the developer had demolished certain
premises which came under the heritage 'A' category and which also
came within the CRZ. The Official Trustee, therefore, requested the
Heritage Committee to reconsider the NOC granted to the developer.
The Deputy Municipal Architect of the Heritage Committee requested
SRP                                                                                                                                                        32/87
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the Executive Engineer, Building Proposals, to make a detailed report.
The Official Trustee also addressed a letter dated 6th August, 2008, to
MHADA in which he also alleged that the requirements of DCR 33(7)
had not been met and requested MHADA to revoke the NOC.
Reminders were sent to the Heritage Committee.
On 20th April, 2009, the priest of the temple was served with a
39.
ig
notice under section 95-A of the MHADA Act calling upon him to
vacate the premises and to shift to the temporary transit
accommodation offered by the developer.
On 5th May, 2009, the present Writ Petition was filed. By an
40.
order dated 25th January, 2010, the Writ Petition was admitted and
pending the hearing and final disposal of the petition, the respondents
were restrained from transferring any ownership right, title or interest
in the newly constructed building either to the tenants/occupants in
lieu of their earlier respective tenements either in their individual
names or to the proposed society.
The structure which was not
demolished was also protected pending the hearing of this petition.
The Writ Petition was amended twice. We will refer to the
SRP                                                                                                                                                        33/87
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nature of the amendments while dealing with Mr. Chinoy's
submissions. He relied upon the nature of the amendments to oppose
41.
the petition.
A learned single Judge disposed of Trust Petition No.5 of 2008.
The Official Trustee's application for being divested of his office was
rejected. We will refer to this order also later while considering Mr.
ig
Hakani's reliance upon the same in support of the Official Trustee.
On 20th October, 2010, the developer filed Appeal No.1141 of 2010
appeal.
against this order. On 9th March, 2011, the developer withdrew the
42.
Mr. Chinoy raised a preliminary objection as to the
maintainability of the writ petition on the ground that the Official
Trustee had filed this writ petition without seeking the permission of
the court to do so. The submission is not well founded.
43.
Mr. Chinoy has not invited our attention to any provision of the
Official Trustees Act, 1913, which requires an Official Trustee to seek
permission of the court before filing proceedings, including a writ
SRP                                                                                                                                                        34/87
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Section 7(2) of the Official Trustees Act provides that the
44.
petition.
Official Trustee shall have the same powers, duties and liabilities and
be entitled to the same rights and privileges and be subject to the same
control and orders of the Court as any other trustee acting in the same
capacity. What then are the powers of any other trustee acting in the
ig
same capacity ? The Official Trustees Act itself does not require the
Official Trustee to seek the permission of the Court before filing
proceedings in the interest of the trust.
Nor is there any provision in the Official Trustees (Maharashtra)
Rules, 1971, requiring the Official Trustee to obtain the permission of
the High Court to initiate legal proceedings.
45.
Nor do we find any provision under the Indian Trusts Act, 1882,
requiring him to do so. Section 13 of the Indian Trusts Act, 1882,
provides that a trustee is bound to maintain and defend all suits and
(subject to the provisions of the instrument of trust) to take such other
steps as maybe reasonably required for the preservation of the trust
SRP                                                                                                                                                        35/87
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property and the assertion of the protection of title thereto.
Our
attention has not been invited to any provisions of the Indian Trusts
Act or to any authority under that Act that requires the Official Trustee
to seek the permission of the court before filing proceedings. Nor do
we see any reason to read such a requirement in section 13 or in any
Mr. Chinoy's reliance upon the judgment of the Supreme Court
ig
46.
other provisions of the Indian Trusts Act, 1882.
in Official Trustee of Tamil Nadu vs. Udavumkarankal & Ors. [1993
Supp. (3) SCC 509 = AIR 1993 SC 1472] is misplaced. Firstly, the
preliminary objection raised by Mr. Chinoy was neither raised before
nor decided by the Supreme Court. That was a case where on the
application of the Official Trustee, the High Court had granted him
permission to incur an expenditure of Rs.6 lakhs for converting the
tiled-roof of a marriage hall into an R.C.C. roof and for providing
certain other facilities.
Thereafter, the Official Trustee undertook
entirely different work involving the demolition of the building and
the construction of a new marriage hall on the plot involving
additional expenses of Rs.4 lakhs. Mr. Chinoy relied upon paragraph
SRP                                                                                                                                                        36/87
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ig
"15.
There is no doubt that the appellant knew that
the earlier sanction obtained was only for replacement
of the tiled-roof by the R.C.C. slab. The sanction was
also for incurring only an expenditure of Rs.6 lakhs and
some other sundry expenses for providing minor
facilities. Since the new proposal which he sanctioned
consisted of the demolition of the entire building and of
constructing a new one in its place which also involved
a further expenditure of Rs.4 lakhs or so, the proposal
was completely different and it could not be acted upon
on the basis of the old sanction. It was, therefore,
absolutely necessary for the appellant to approach the
Court before he embarked upon the new proposal, even
though in doing so he was acting in the interest of the
trust and no mala fides could be attributed to him. We
find that this is the only error committed by the
appellant in the present case. However, in the facts and
circumstances of the case, the error could not be said to
have been actuated by any mala fide intentions on his
part. The expenses that he had undertaken to incur
were also within reasonable bounds looking at the
proposal. His intention in promoting the proposal could
not be said to be other than honorable, and in any case
it could not be said that it was not in the interests of the
trust. In view of this, it was wrong on the part of the
courts below to make the appellant himself pay for the
excess expenditure involved in the proposal."
15 of the judgment which reads as under :-
(C)
The Supreme Court did not consider the question whether an
Official Trustee is bound to seek the permission of the Court before
filing legal proceedings. The Supreme Court obviously considered a
case under section 28(b) of the Official Trustees Act which provides
that an Official Trustee may, incur expenditure with the sanction of the
SRP                                                                                                                                                        37/87
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High Court on such religious, charitable and other objects and on such
improvements as may be reasonable and proper in the case of such
property. Thus, section 28(b) of the Official Trustees Act expressly
requires the Official Trustee to seek the sanction of the High Court
while incurring such expenditure.
Indeed, section 28(b) militates
against Mr. Chinoy's submission for it indicates that where the
Legislature required the Official Trustee to seek the sanction of the
47.
ig
High Court, it provided for the same expressly in the Act.
Even the orders of this Court appointing the Official Trustee did
not mandate his obtaining the permissions of the Court for filing legal
proceedings.
The Official Trustee was appointed by an order of this Court
48.
dated 4th October, 1927 read with an order dated 10th October, 1927.
By the said orders, the Official Trustee was appointed as the sole
trustee of the temple and of the said properties. The order vested the
temple and the property in the Official Trustee with power to manage
the same and recover the rents and profits thereof and to apply the
SRP                                                                                                                                                        38/87
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same and the temple funds for the purpose of the temple and of the
worship to be carried on therein. The orders directed the Official
Trustee to incur certain expenses and make certain payments. The
orders, however, did not require him to seek the permission of the
Court before instituting legal proceedings.
In any event, even assuming that an Official Trustee is bound to
49.
ig
seek the permission of the Court before filing legal proceedings, there
proceedings.
is nothing that indicates that he must do so before filing the
Obtaining the permission of the Court to file
proceedings is not a condition precedent to doing so. There is nothing
that prevents an Official Trustee from seeking permission later, i.e.,
after filing the proceedings. It would always be open to the Official
Trustee to seek permission of the Court subsequently. In other words,
even if the proceedings are filed without the permission of the Court,
they would not be void for that reason. The Court would not lack
inherent jurisdiction to entertain proceedings filed by an Official
Trustee without the permission of the Court even assuming that such
permission was required.
SRP                                                                                                                                                        39/87
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Had we accepted Mr. Chinoy's submission we would, in any
event, have permitted the Official Trustee to seek the sanction of the
Court before proceeding to hear the writ petition. However, as we
have not accepted Mr. Chinoy's submission, it is not necessary to
adjourn the hearing of this writ petition in order to enable the Official
The preliminary objection is, therefore, rejected.
51.
Petition is maintainable.
The Writ
ig
50.
Trustee to seek permission.
Mr. Hakani submitted that the authorities considered the
developer's application and granted the permission, NOC and approval
illegally as the Official Trustee had revoked and cancelled the POA.
The POA was admittedly filed by the developer before MHADA and
the Municipal Corporation. Relying upon clause 15 of the POA, Mr.
Hakani submitted that the developer was entitled to obtain the consent
of the tenants and occupants only with the prior approval of the
Official Trustee. The developer had not obtained the approval of the
Official Trustee. Therefore, the approval of the plans based on the
SRP                                                                                                                                                        40/87
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POA and based on the consents obtained by the developer from the
tenants and occupants is illegal, null and void. He further submitted
that the plans are not binding on the Official Trustee as the same were
approved without the authority of the Official Trustee on account of
the POA having been withdrawn / cancelled by the said notice dated
19th March, 1998. The developer had not taken any steps to challenge
the revocation of the POA. Nor had the developer obtained a fresh
ig
POA. The authorities, including MHADA, the Municipal Corporation
and MBR&RB were bound to follow the directions of the owner of
the trust property. They were not entitled to act on the basis of the
proposals submitted by the Constituted Attorney as the POA in favour
of the Constituted Attorney had been revoked. He also relied upon the
observations of the learned single Judge in paragraph 5 of the order
dated 17th April, 2003, in Contempt Petition No.48 of 2002 to the
effect that the developer was obliged to assail the revocation of the
POA and that it was not enough for it to merely assert that the POA
was still operating and binding on the Official Trustee inspite of the
revocation thereof.
SRP                                                                                                                                                        41/87
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52.
Mr. Hakani's reliance upon the observations of the learned
single Judge in the order dated 17th April, 2003, is not well founded.
These observations were made in the context of a Contempt Petition.
This is clear from the observation that the developer's argument that if
the Official Trustee could not have revoked or cancelled the POA was
to be accepted it would entail a piquant situation requiring this Court
to examine the correctness or otherwise of that action which cannot be
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the scope of contempt jurisdiction. The present writ petition is filed
by the Official Trustee. If it is found that the revocation of the POA
was illegal and contrary to the orders of this Court, the developer
cannot be prejudiced merely on account of the revocation. If the
authorities act on to POA, as they have, it would be for the Official
Trustee to adopt proceedings to restrain them from doing so which he
has by this petition. It is then for this Court to see if the revocation is
legal or not. We now proceed to do so.
53.
We set out clause 5 of the minutes of the order in terms whereof
the order dated 8th August, 1997, was passed disposing Trust Petition
No.5 of 1995. Clause 5 provided that the Official Trustee would grant
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a POA in favour of the developer's Director Bhupesh Jain for the
purpose of negotiating with and obtaining consent agreements from
tenants and for putting up a proposal for availing the developable FSI
in the form of development right certificates in respect of the property.
This was, therefore, not a POA granted by the Official Trustee
voluntarily. It was granted pursuant to the order of the Court. It must
be remembered that the word "settlement" in the order dated 8th
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August, 1997, was corrected to read "minutes of order" by the order
dated 20th November, 1997. Further, in the recital to the POA, the
Official Trustee stated : "I am required to grant a POA......" and "I am,
accordingly, executing these presents ........". Thus, the POA was
issued pursuant to the orders of this Court dated 8th August, 1997.
54.
Clause 3 of the POA permitted the developer, inter-alia, to
negotiate arrangements and agreements with the tenants for the
purpose of repair/reconstruction of the structure with a view to enable
the obtaining of the balance FSI by way of TDR FSI and development
right certificates. The first part of clause 15 of the POA relied upon by
Mr. Hakani is identical to clause 3. It is important to note that clause
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3 does not require the developer to obtain the prior approval of the
Official Trustee in respect of the power conferred upon it therein. In
fact, clause 5 of the Minutes of Order dated 8th August, 1997, which
required the Constituted Attorney to grant a POA in favour of the
developer for the said purposes did not require the developers to
obtain the prior approval of the Official Trustee for the activities
mentioned in clause 3 of the POA. Further, by clause 16 of the POA,
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the Official Trustee not only agreed to do and perform all acts, deeds,
matters and things necessary for the aforesaid purposes, but also
agreed to ratify and confirm whatever the developer lawfully does. If,
therefore, the applications for redevelopment were made in
compliance with the orders of this Court, the Official Trustee would
be bound to ratify the same.
55.
It is necessary to read clause 3 alongwith clause 15 which was
relied upon by Mr. Hakani. The requirement of prior approval of the
Official Trustee in clause 15 obviously relates only to the developer
obtaining the development right certificates for the property stands in
the name of the Official Trustee and not in the name of the developer.
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This approval obviously cannot be illegal or even unreasonably
withheld for the order dated 8th August, 1997, and in particular clause
2 thereof required the Official Trustee to make available to the Official
Trustee the FSI potential in respect of the said property by way of
transfer of TDR certificates.
However, in view of clause 15 the "prior approval of the
Trustee"
is
mandatory
"for
obtaining
Development
Official
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Registration Certificates in respect of the balance FSI available in
respect of the said property". Thus, the authorities would be entitled
to process the developer's application for the DRCs subject to the prior
approval of the Official Trustee.
The authorities cannot decide
whether the Official Trustee has rightly withheld the approval or not.
That would depend upon the result of the proceedings to be adopted in
a Court or Tribunal of competent jurisdiction.
The rights and
contentions of the parties in this regard are kept open.
56.
The POA would stand revoked only upon the issuance of the
development right certificates in respect of the TDR FSI and the
transfer of the said certificates in favour of the developer and/or its
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nominee. That stage admittedly had not been reached when the POA
was purportedly revoked. The developer was, therefore, entitled to act
upon the POA and the authorities were entitled to process the
applications and proposals of the developer for carrying on the
development on the basis that the developer held a valid and
Mr. Hakani submitted that the approval of the plans and the
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57.
subsisting POA.
grant of NOC / permissions under Regulation 33(7) of the
Development Control Regulations, 1991, are in contravention of CRZ
Notification dated 19th February, 1991.
He submitted that the
property is in the Bhan Ganga precinct (temples and tank) and is
located within the Coastal Regulation Zone-II as per the CRZ
Notification issued by the Ministry of Environment on 19th February,
1991. On 19th February, 1991, Development Control Rules of 1967
were in existence and, therefore, the development activity in respect of
the property is governed by the 1967 DCR. Thus, according to him,
the DC Regulations for Greater Mumbai of 1991 do not apply to the
property. Hence, the processing of the plans under Regulation 33(7)
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of the 1991 DCR is illegal. In this regard, he relied upon the judgment
of the Supreme Court in Suresh Estates Pvt. Ltd. & Ors. v. Municipal
Corporation of Greater Mumbai & Ors. (2007) 14 SCC 439. The
Supreme Court held :
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"16. The contention advanced by the learned counsel for
the respondents that the DC Rules, 1967 would not
apply to the development permission sought for by the
appellants, but the Development Control Regulations of
1991 would apply, cannot be accepted. It is not in
dispute that on 19-2-1991 MoEF issued a notification
under the provisions of the Environment (Protection)
Act, 1986 regulating building activities in coastal zones
which is known as coastal regulation zone notification.
The said notification classifies the areas within 500
metres of high tide land into CRZ I, CRZ II, CRZ III and
CRZ IV categories. It is also not in dispute that the plot
belonging to the appellants falls within CRZ II category.
The notification inter alia provides that buildings shall
be permitted only on the landward side of the existing
road and buildings permitted at landward side of the
existing and proposed roads shall be subject to the
existing local town and country planning regulations
including the existing norms of floor space index/floor
area ration.
17. It is true that the DC Regulations for Greater
Bombay, 1991 were notified on 20-2-1991 and came
into force with effect from 25-3-1991. However, a doubt
was raised whether the existing DC Regulations for
Coastal Regulation Zone II (CRZ II) would mean the
DC Rules, 1967 or Draft Development Control
Regulations, 1989 which ultimately culminated into the
DC Regulations, 1991 and, therefore, MoEF was
consulted. MoEF issued a clarification on 8-9-1998
stating that the DC Regulations as existing on 19-2-
1991 would apply for all developmental activities in

Coastal Regulation Zone including CRZ II. MoEF also
issued clarification on 18-8-2006
reiterating that
the existing DC Regulations applicable to CRZ II areas
in Mumbai would mean the DC Rules, 1967. Even the
Municipal Corporation in its letter dated 31-12-2005
addressed to the Principal Secretary, Urban
Development Department, Government of Maharashtra,
had expressed the view that the application made by the
appellants for construction of a luxury hotel with
additional FSI under the DC Rules, 1967 be granted
under Rule 10(2) of the Rules.
............
19. The word “existing” as employed in the CRZ notifi-
cation means the town and country planning regulations
in force as on 19-2-1991. If it had been the intention
that the town and country planning regulations as in
force on the date of the grant of permission for building
would apply to the building activity, it would have been
so specified. It is well to remember that CRZ notification
refers also to structures which were in existence on the
date of the notification. What is stressed by the notifica-
tion is that irrespective of what local town and country
planning regulations may provide in future the building
activity permitted under the notification shall be frozen
to the laws and norms existing on the date of the notifi-
cation.
OSWP1469.09.doc
20. On 2-2-1991 when the CRZ notification was issued,
the only building regulations that were existing in city of
Mumbai, were the DC Rules, 1967. In view of the con-
tents of CRZ II notification issued under the provisions
of the Environment (Protection) Act which has the effect
of prevailing over the provisions of other Acts, the appli-
cation submitted by the appellants to develop the plot
belonging to them would be governed by the provisions
of the DC Rules, 1967 and not by the draft development
regulations of 1989 which came into force on 20-2-1991
in the form of the Development Control Regulations for
Greater Bombay, 1991."
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58.
While this matter was still being heard, another Division Bench
of this Court considered an issue similar to the one raised before us
and decided the same by a judgment dated 21st October, 2013, in the
case of M/s. TCI Industries Limited & Anr. v. State of Maharashtra &
Ors., Writ Petition No.1244 of 2012. The Division Bench considered
the judgment of the Supreme Court in Suresh Estates. The Division
Bench held :
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"28.
In Suresh Estates, the Supreme Court rejected
the submission that the 1967 DC Rules would not apply
to development projects in CRZ-II areas. It held that the
word “existing” in the CRZ Notification was a
reference to the town and country planning regulations
in force as on 19th February 1991, not on the date of
grant of the permission. The CRZ Notification explicitly
refers to “existing” structures and roads and, therefore,
all building activity permitted under the notification is,
in the words of the Supreme Court, “frozen to the laws
and norms existing on the date of the notification”.
Since, on that date, 19th February 1991, the only
building regulations in existence were the 1967 DC
Rules, and since the CRZ Notification has a wide non-
obstante clause, development applications for CRZ-II
plots would be governed by the 1967 DC Regulations,
not the 1989 draft regulations. We may note here that
the Supreme Court upheld the decision of this Court in
Overseas Chinese Cuisine (India) (P) Ltd v Municipal
Corporation of Greater Mumbai to the same effect as
regards the applicability of the 1967 DC Rules to CRZ-
II lands. But the Supreme Court was also unambiguous
in saying, in para 32, that the CRZ Notification has
only frozen the FSI/FAR (Floor Area Ratio) norms. In
Suresh Estates, the plot in question was under a
reservation for a public purpose, viz., a playground for
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a secondary school. Would the CRZ Notification have
the effect of ousting the operation of Section 127 of the
MRTP Act, which deals with lapsing of reservations?
The Supreme Court said that it could not, and Section
127 would continue to operate since all that the CRZ
Notification does is to freeze FSI/FAR norms and pin
these to the standards of the 1967 DC Rules. Thus, in
Suresh Estates, the Supreme Court explicitly recognized
the protective and preservative objectives of the CRZ
Notification. We must note here that the decision of this
Court in Overseas Chinese Cuisine is of 2000. It pre-
dates TCI’s first application of 27th July 2004 to the
State Government to be exempted from the operation of
DCR 58. It also pre-dates TCI’s development
application of 5th September 2006 under the 1991 DC
Regulations. It seems to us entirely unlikely that TCI
was, as it claims, “unaware” of the legal situation as
regards the CRZ Notification and the 1967 DC Rules till
the decision in Suresh Estates. There is no manner of
doubt that TCI’s first application of 27th July 2004 was
on legal advice. Yet it made no claim invoking the
applicability of the 1967 DC Rules although, four years
earlier, this Court in Overseas Chinese Cuisine had
already pronounced on the matter; and the decision in
Suresh Estates was still three years in the future.
OSWP1469.09.doc
29.
Mr. Chinoy’s argument today is not restricted
to the grant or refusal of additional FSI, though the
Petitioners’ application under the 1967 DC Rules is for
an FSI as high as 7 for the hotel and 2.45 for the
residential complex. What he suggests is that even those
aspects of the 1991 DC Regulations that are unrelated
to the quantum of FSI that may be granted must be
completely excised from consideration. This creates
something more than an anomaly; it creates a legislative
singularity, a statutory black hole as it were, from whose
gravity nothing escapes. Were this to be accepted there
then would be within the Island City isolated islands or
stretches where not a single aspect of current town
planning regulations would apply. Present-day needs
and considerations would have to be entirely ignored.
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CRZ-II plots would have to be treated as standing
outside the city, stripped of all context, physical,
geographic and architectural and social. In a city
surrounded on three sides by the sea, the consequences
could well be catastrophic. It is difficult to accept the
argument, even by necessary implication, that this is the
result the Supreme Court intended in Suresh Estates. We
understand that decision to mean that the intent of the
CRZ Notification was to freeze and restrict development,
not to foster it at the cost of sound and balanced town
and country planning. It is for this reason that, while
saying that it is the 1967 DC Rules that would apply, the
Supreme Court later in the same decision in terms said
that the CRZ Notification has “only frozen the FSI/FAR
norms.” This is plainly evident from the phrasing of the
1991 CRZ Notification itself, the relevant portions of
which read:
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(i) Buildings shall be permitted only on the
landward side of the existing road (or roads
proposed in the approved Coastal Zone
Management Plan of the area) or on the
landward side of existing authorised structures.
Buildings permitted on the landward side of the
existing and proposed roads/existing authorised
structures shall be subject to the existing local
Town and Country Planning Regulations
including the existing norms of Floor Space
Index/Floor Area Ratio.
(ii) Reconstruction of the authorised buildings
to be permitted subject to the existing FSI/FAR
norms and without change in the existing use.
30.
The word “including” in the first clause must,
we believe, necessarily receive a restricted meaning if
the purposes and objectives of the CRZ Notification are
to be served, and if the legislative anomaly we have
noticed above is to be avoided. This is the only
interpretation that serves both these objectives while
retaining consistency with the decision in Suresh
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Estates. The alternative is a complete ouster of DCR 58
from its application to the Mukesh Mills lands. It is, in
our view, not possible to accept such an interpretation;
and to do so would be to attribute to the Suresh Estates
decision things it does not say and could not have
intended. We have earlier noted the wider social
objectives of DCR 58, and, too, the very wide gamut of
factors that any development plan must attempt to
address. Every one of these objectives would be
completely lost if we were to wholly exclude the
operation of DCR 58. At the cost of repetition, we must
note that DCR 58 does not itself fix any particular FSI.
It provides for the apportionment or utilization of that
FSI. Whether that FSI is fixed under the 1967 DC Rules
or the 1991 DC Regulations is immaterial to the
operation of DCR 58 generally and to DCR 58(8) and
58(9) in particular. In this context, two aspects must be
emphasized. First, that the demands of the Monitoring
Committee are not directed to FSI or the nature or type
of the proposed development at all. They are directed to
the achievement of social welfare objectives, including
the rehabilitation of workers, the settlement of their
dues, the issuance of service certificates and so on. TCI
itself accepted this when it made its application on 27th
July 2004 for exemption from DCR 58, for the only basis
of that application was its fulfilment of its statutory
obligations under industrial and labour law, not the
ouster of the entirety of the 1991 DC Regulations. All
these objectives would be set at naught were we to hold
that DCR 58 is wholly inapplicable to the Mukesh Mills
lands. Second, there is a conceptual and qualitative
difference between saying that FSI shall remain fixed at
the then prevalent norms of 1967, and saying that
current exigencies and needs must therefore be
overlooked. This argument assumes that there is a
complete stasis in the city’s growth and development
since 1967 or, at any rate, that the CRZ Notification
blindly so presumes. The CRZ Notification does nothing
of the sort. It seeks only to restrict development, and
that, too, in certain areas, in order to attain its goal of
coastal environmental protection.
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.................
34.
In our view, Mr. Bharucha, Learned Senior
Counsel appearing for the MCGM, and Mr. Saiyed,
Learned Counsel for the 5th Respondent workers’
organisation, the GKKNKS, are therefore justified in
contending that there can be no such complete ouster of
DCR 58. The issue in Suresh Estates, as they point out,
was as to the applicable law for development. The
Supreme Court was not called upon to decide questions
of land surrender or housing; and it is, therefore, not
permissible to attribute to Suresh Estates matters that it
did not decide. Both Mr. Bharucha and Mr. Saiyed were
at pains to point out that the Petitioners’ argument, if
accepted, would result in a manifest social and welfare
injustice and imbalance, in that the Petitioners would
then claim, and possibly get, a huge FSI but, at the same
time, would evade the responsibility to surrender land
for public purposes such as housing and open spaces;
and would also not be subjected to the discipline of
DCR 58(8) and 58(9), both of which seek to achieve,
through the mechanism of town planning, objectives of
social and spatial justice. In its fourth impugned order
dated 11th July 2013, which we have read with the
assistance of both Mr. Bharucha and Mr. Saiyed, the
Monitoring Committee sets out briefly the historical
background of the mill lands and DCR 58 and notes, in
our view correctly, that DCR 58 as amended in 2001 has
two aspects: the first dealing with what the Monitoring
Committee calls the “nitty gritty of development/re-
development of the mills and their lands” and the other
with the protection of workers’ rights to housing, dues to
workers, etc. The Monitoring Committee is a statutory
“watchdog” to ensure that the proceeds from
development and re-development are utilized for the
benefit of workers. It also notes that the operation of the
CRZ Notification is unrelated to ownership of the textile
mill lands, questions of surrender of land, protection of
workers and other matters that lie within the ambit of
DCR 58. Therefore, the Monitoring Committee notes,
the development of the Mukesh Mills property will be in
accordance with the 1967 DC Rules and the 1991/2011
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CRZ Notification, but this is not inconsistent with the
amended DCR 58 under which the Monitoring
Committee must oversee questions, among others, of
surrender of land for public purposes to government
agencies and authorities, the utilization and
disbursement of funds accruing from such re-
development, and the protection of workers’ rights as to
their housing and dues. The view taken by the
Monitoring Committee is, we find, entirely consistent
with our own in this matter, and cannot be faulted. It
correctly balances the demands of the CRZ Notification
with the objectives of DCR 58."
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The result of the judgment of the Division Bench is that
59.
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Regulation 33(7) of the 1991 DCR would operate. However, the cap
Mr. Hakani
of FSI would not increase as per Regulation 33(7).
submitted that the judgment of the Division Bench is not good law and
has wrongly construed the judgment of the Supreme Court in Suresh
Estates. We do not agree. The judgment is binding on us. It is not
open to us to take a different view. The construction and interpretation
of the Division Bench of the judgment of the Supreme Court in Suresh
Estates is also binding on us even if we assume the same to be
incorrect, as suggested by Mr. Hakani.
60.
Mr. Hakani did suggest that the price of Rs.1,36,00,000/- for
FSI in excess of 2294 square feet was extremely low and detrimental
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to the interest of the trust.
During the course of arguments, he
We are, however, not clear as to
previous orders of this Court.
appeared to agree that this issue may not be open in view of the
whether he conceded this point. Moreover, the petitioner in Writ
Petition (Lodg.) No.2572 of 2012 contended that the price of
Rs.1,36,00,000/- was extremely low and that the Official Trustee
ought not to be bound by the same. In view thereof, it is necessary
61.
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that we decide this issue.
Unfortunately it is not open to us to go into this aspect in view
of the orders passed by this Court in the previous proceedings. We
hasten to add that we do not for a moment suggest that the price of
Rs.1,36,00,000/- for 14000 square feet of FSI was remotely near the
market price even in August, 1997. It would be, to say the least,
highly possible and arguable that absent any special circumstances,
Rs.1,36,00,000/- was a grossly inadequate consideration for 14000
square feet FSI even in the year 1997. It works out to a little more
than Rs.1,000/- per square foot of FSI.
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62.
It is not open to us to consider this aspect in view of the
previous orders of this Court which have attained finality. Apart from
the fact that these orders passed in other proceedings have attained
finality, some of them have been passed by Division Benches of this
Court and would, in any event, therefore, be binding on us. For
instance, the transaction was approved by the order dated 8th August,
1997 of the Division Bench in Trust Petition No.5 of 1995 with the
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observation that the terms safeguard the interest of the temple
property. Further, the Official Trustee's SLP against this order was
dismissed by an order of the Supreme Court dated 27th July, 1998.
Absent liberty from the Supreme Court, it is not open to this Court to
go into this issue at least in this Writ Petition. It is not necessary to
decide whether the Official Trustee can raise this issue in any other
proceedings.
63.
It is, however, expressly clarified that we have not gone into this
question as, in our opinion, it has attained finality by virtue of the
orders of this Court and not because we have come to the conclusion
that Mr. Hakani's contention on merits in this regard is unfounded.
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The issue whether the developer's right is restricted to 2294
64.
square feet FSI as contended by Mr. Hakani, has also attained finality
as far as this Court is concerned.
65(A).
As per clause 2 of the order dated 8th August, 1997, in
Trust Petition No.5 of 1995, in consideration of the sum of
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Rs.1,36,00,000/-, the Official Trustee was to make available to the
petitioner therein, i.e., respondent No.4 herein - the developer, the FSI
potential in respect of the said property by way of transfer of TDR
certificates. The Official Trustee executed the POA on 8th September,
1997. The Special Leave Petition filed by the Official Trustee against
the order dated 8th August, 1997, was dismissed by the Supreme
Court on 27th July, 1998.
(B)
On 27th April, 2004, the Official Trustee filed Trust Petition
No.5 of 2004, in which he, inter-alia, sought an order that the
developer was entitled to use only FSI of 2294 square feet by way of
TDR and an order directing the developer not to use FSI more than
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2294 square feet by way of TDR in respect of the property. The issue
as to the extent of the FSI that the developer was entitled to was raised
(C)
in the affidavits.
Trust Petition No.5 of 2004 was disposed of by an order dated
9th May, 2005. The learned Judge, inter-alia, held that the Official
Trustee was aware that what was being conveyed to the developer was
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not just 2294 square feet FSI but the entire potential FSI of the said
property which included the temple and the chawl. The learned Judge
held that it was too late in the day for the Official Trustee to seek a
clarification of the order dated 8th August, 1997.
By an order and judgment dated 10th October, 2005, a Division
Bench dismissed the Official Trustee's appeal against the order dated
9th May, 2005. The Division Bench held that clauses 2 and 5 of the
minutes of order dated 8th August, 1997, made it abundantly clear
that what was conveyed was the FSI potential in the form of
development right certificates (DRC).
What was made available
under the minutes of order was the FSI potential.
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66.
In view of the order of the learned single Judge and of the
Division Bench in Trust Petition No.5 of 2004, the issue as to the
extent of FSI stands concluded. There is no pending application to
challenge or to revoke, recall or cancel the order dated 8th August,
1997. We are not entitled in these proceedings to consider whether the
developer was entitled only to 2294 square feet FSI. We are bound by
It is clarified, however, that we have not quantified the FSI
67.
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the orders of this Court.
potential. That is for the appropriate authorities to do. While doing
so, they must also take into consideration the observation in the
various orders passed by this Court, including this order.
Mr. Chinoy submitted that the challenge to the plans and the
68.
NOC issued by the authorities suffers from gross delay and laches. He
further submitted that in view of the previous proceedings and the
orders passed therein, it is not open to the Official Trustee to raise
these contentions. The contentions raised in this Writ Petition were,
according to him, raised in the previous proceedings and in any event,
SRP                                                                                                                                                        59/87
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could have been raised therein. Those proceedings stand concluded
by the orders passed therein and which orders have attained finality.
The Official Trustee ought not to be permitted to keep raising the
same or even fresh grounds, especially after such delay.
69.
It would be convenient first to note Mr. Hakani's submissions
including regarding the applicability of Regulation 33(7) of the 1991
70.
common to a large extent.
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DC Regulations as the facts in respect of both the submissions are
Mr. Hakani's submissions are as follows. Even assuming that
the 1991 DCR applies, the approval of the plans under regulation
33(7) of 1991 DC Regulation is beyond the scope of the order dated
8th August, 1997, and the POA. Regulation 67 of the 1991 DCR is
not applicable in the manner in which the same is sought to be applied
and is contrary to the order dated 8th August, 1997. When the order
dated 8th August, 1997, was passed TDR on heritage property could
be granted only on the basis of Regulation 67(6). The regulation does
not necessarily require redevelopment as envisaged under Regulation
SRP                                                                                                                                                        60/87
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33(7). The scheme of granting and utilization of TDR is different
Whereas under
under Regulation 67(6) and Regulation 33(7).
Regulation 67(6) unconsumed FSI can be consumed in the scheme
from which it originated, under Appendix III, Regulation 6 TDR can
be utilized only in the suburbs.
The Maharashtra Heritage
Conservative Committee had permitted utilization of the TDR in the
The TDR, however, was to be granted only as per
same ward.
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Regulation 67(6). The development as sought was never intended as
per the order dated 8th August, 1997. What was contemplated by the
order dated 8th August, 1997, was only the sale of the benefit of
potential FSI / TDR in accordance with DCR 67.
For making
available the benefit of TDR, the actual reconstruction or
redevelopment is not required.
DC Regulation 67 reads :
"67.
Grant of Transferrable Development Rights in
cases of loss of Development Rights - if any application
for development is refused under this Regulation or
conditions are imposed while permitting such
development which deprive the owner / lessee of any
unconsumed FSI the said owner / lessee shall be
compensated by grant of Development Rights Certificate
(hereinafter referred to as 'TDR" of the nature set out in
Development Control Regulation No.34 and Appendix
VIIA and as may be prescribed by Government from
time to time. The TDR from heritage buildings in the
SRP                                                                                                                                                        61/87
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island city may also be consumed in the same ward from
which it originated. The extent of TDR Certificates to
be granted may be determined by the Commissioner, if
required in consultation with the Heritage Conservation
Committee and will not not be awarded unless
sanctioned by Government."

The availability of the FSI / TDR can also be on the basis of
disapproval of the plans / proposals and, therefore, the approval of the
plan under Regulation 33(7) is in violation of Regulation 67 of the
DCR 1991 and also of the order dated 8th August, 1997 and the POA.
reconstruction
and
not
for
redevelopment.
Whereas
and

The plans under Regulation 67 cannot be approved except for repairs
"reconstruction" implies re-erecting the structure exactly as it was,
without any change, the term "redevelopment" involves an erection of
a new structure with a completely new plan, dimensions etc.
Mr. Hakani's submission could have been and some of them
71.
were, in fact, raised by the Official Trustee in previous proceedings,
especially in Trust Petition No.5 of 2004 which was filed on 27th
April, 2004. We have referred to the reliefs sought in Trust Petition
No.5 of 2004. The Official Trustee had sought an order that the
developer was entitled to use only FSI of 2294 square feet by way of
SRP                                                                                                                                                      
TDR; that the developer was not entitled to demolish any chawl or any
structure on the said property; an order that the respondent is not
entitled to any TDR in respect of the property except FSI of 2294
square feet; an order directing the developer not to use any FSI more
than 2294 square feet by way of TDR; an order not to demolish any
chawl or any structure on the property; an order that the developer is
not to be allotted any additional TDR in respect of the property except
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FSI of 2294 square feet; an order directing the developer not to use or
utilize or put up any construction on the property and an order that the
Official Trustee be allowed to dispose of the balance FSI by way of
TDR in respect of the property, i.e., TDR in excess of 2294 square
feet.
72.
It is important to note the facts that transpired prior to 27th
April, 2004, i.e., prior to the filing of the Trust Petition No.5 of 2004
and also the facts that transpired prior to the orders dated 9th March,
2005 of the learned single Judge of this Court disposing of Trust
Petition No.5 of 2004 and the order of the Division Bench dated 10th
October, 2005. The importance of the facts that preceded the filing of

the Trust petition and the orders thereon is that the developer had by
then made the applications; submitted the proposals to the various
authorities, including the Municipal Corporation, MHADA, Heritage
Committee and the MBR&RB and the authorities had processed the
same. Even if the authorities had not processed the same it would
make no difference for neither the learned single Judge nor the
It is
Division Bench interfered with the same in any manner.
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sufficient to collate briefly the relevant facts that preceded the filing of
73.
the Trust Petition on 27th April, 2004.
The applications to the MBR&RB are as follows.
On 15th September, 1997, the developer's architect applied for
permission to redevelop the Trust property. On 26th November, 1997,
MBR&RB requested the developer to furnish certain information. It
is important to note that the information sought, included whether the
developer would form a co-operative society alongwith minimum
70% old occupants of the existing building before occupation of the
reconstructed building. The letter also required all the occupants of
the old cessed building to be re-housed in the newly constructed
SRP                                                                                                                                                        64/87
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building and a suitable agreement is made on ownership basis and
submitted to the Board with at least 70% of the occupiers of the
proposal for redevelopment.
building. On 30th January, 2002, the developer submitted a fresh
In view of the Official Trustee's
communication of the revocation of the POA, MBR&RB by a letter
dated 21st February, 2002, informed the developer that it's request for
NOC for redevelopment could not be considered. Thus, by the time
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Trust Petition No.5 of 2004 was filed by the Official Trustee on 27th
April, 2004, the applications before the MBR&RB were already in
place and were being processed. MBR&RB stayed the process in
view of the Official Trustee's contentions.
However, after the Trust Petition was dismissed by the learned
single Judge and the appeal against the order was dismissed by the
Division Bench on 10th October, 2005, MBR&RB proceeded further.
The developer, by its letter dated 1st December, 2005, forwarded the
orders to MBR&RB. On 24th March, 2006, MBR&RB called upon
the developer to furnish a bond indemnifying it against any adverse
claim if the stay on its NOC was vacated. On 10th April, 2006, the
developer submitted an indemnity bond. Ultimately, on 14th June,
SRP                                                                                                                                                        65/87
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2006, MBR&RB informed the developer that the stay on the NOC
was vacated in the light of the order dated 10th October, 2005, and
74.
permitted the developer to go ahead with the re-development work.
Thus, these permissions were granted by MBR&RB in respect
of the proposals by applications which had been made prior to the
filing of the Trust Petition. In view of the orders of this Court in Trust
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Petition No.5 of 2004, it is not open us to reconsider the issues which
had been raised and/or which ought to have been raised by the Official
Trustee in Trust Petition No.5 of 2004.
On 21st March, 1998, the Heritage Committee of the Municipal
75.
Corporation conveyed its no objection to the proposed development /
reconstruction as per the plans submitted by the developer subject to
further scrutiny and approval by the Building Proposal Department.
Thus, the NOC from the Heritage Committee was also obtained
prior to the filing of the Trust Petition. For the reasons mentioned
with respect to the MBR&RB's permission, it is not open to us to
reconsider the validity of the NOC.
SRP                                                                                                                                                        66/87
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On 13th August, 1999, the Urban Development Department,
76.
Government of Maharashtra informed the Municipal Commissioner
that it had no objection to the waiver of the condition requiring
handing over of a percentage of the floor space to Bombay Housing
Area Development Board under Regulation 4 of DCR Appendix III
provided each tenant was accommodated with a minimum built up
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area of 225 square feet. The developer had submitted an application
for grant of heritage TDR to the Municipal Corporation. On 18th
February, 2000, the Municipal Corporation informed the Official
Trustee that the same could not be processed in view of the Power of
Attorney being revoked. The plans were sanctioned by the Municipal
Corporation on 7th February, 2003. On 7th February, 2003, the
Municipal Corporation issued an IOD in favour of the developer and
sanctioned the developer's plans for re-development. Trust Petition
No.5 of 2004 was filed on 27th April, 2004 and was disposed of by the
order of the learned single Judge dated 9th March, 2005 which order
was confirmed by the order of the Division Bench dated 10th October,
2005.
Thus, the facts regarding the issuance of IOD and the
SRP                                                                                                                                                        67/87
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sanctioning of the plans by the Municipal Corporation were before
this Court in Trust Petition No.5 of 2004.
77. Similarly, MHADA issued the NOC on 6th February, 2002.
78. We have summarized the proposals and applications submitted
by the developer to MBR&RB, the Heritage Committee of the
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Municipal Corporation, the Urban Development Department of the
Government of Maharashtra and the response of these authorities.
The authorities had granted the applications, albeit subject to certain
terms and conditions. The importance of this is that all these facts
were before the Court which decided Trust Petition No.5 of 2004.
Further, most of them and especially the NOC dated 6th February,
2002, issued by MHADA were referred to in the Trust Petition itself.
It is now important to note that most of the contentions raised by Mr.
Hakani in respect of the same were raised in the Trust Petition. We
will refer to only some of the averments in the Trust Petition.
79.
The relevant averments in Trust Petition No.5 of 2004 are as
follows :
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The developer was entitled to FSI of only 2294 square feet "and
nothing more". The POA did not reflect the true position and the
Official Trustee, therefore, informed the developer that it had
purchased only 2294 square feet of FSI. The developer was not
entitled to make use of the POA as it was wider than what was
contemplated in the order dated 8th August, 1997, and had been
The Official Trustee had learnt that the developer was
revoked.
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intending to submit plans for obtaining FSI of more than 2294 square
feet. On the basis of the ad-interim order in Contempt Petition No.48
of 2002, MBR&RB had issued the said NOC dated 6th June, 2002 and
granted FSI of 14000.13 square meters.
However, the ad-interim
order had been set aside by the Division Bench subsequently. The
developer had submitted a proposal for the redevelopment of the
property by demolishing the existing chawl structure and building a
new structure which was contrary to the order under which the temple
and the chawl would remain the property of the Official Trustee and
that the developer would be entitled to only FSI of 2294 square feet by
way of TDR and that the developer was not entitled to demolish the
said chawl without the prior permission of the Official Trustee or at
SRP                                                                                                                                                        69/87
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all. The developer had shown bogus tenancies. The proposals and the
grant thereof were contrary, inter-alia, to the order dated 8th August,
1997.
Accordingly, the Official Trustee sought various orders and
directions, including that the developer was entitled only to FSI of
2294 square feet by way of TDR in respect of the property and
nothing more and an order that the developer is not entitled to
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demolish any chawl or any structure on the property. The Official
Trustee sought an order directing the developer not to use FSI of more
than 2294 square feet TDR; not to demolish the chawl or any structure
not to use or utilize or put up any construction on the property and for
an order permitting the Official Trustee to dispose of the balance FSI
by way of TDR.
80.
As we mentioned earlier, the Trust Petition was disposed of by
the learned single judge by the order dated 9th March, 2005 and the
order of the Division Bench dated 10th October, 2005, rejecting the
contentions of the Official Trustee. The orders are binding on us. It is
not possible for this Court to, in effect, disregard the decision of the
SRP                                                                                                                                                        70/87
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learned single Judge and of the Division Bench in Trust Petition No.5
81.
of 2004.
These facts are also relevant while considering Mr. Chinoy's
submission that this petition suffers from gross delay and laches. The
writ petition was filed on 6th May, 2009, i.e., four years after the
decision in the Trust Petition. The delay is aggravated by the fact that
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the contentions now sought to be raised were not even raised in the
petition as it was originally filed. They were introduced by two
amendments which were allowed on 29th November, 2010 and 30th
October, 2012. In the petition, as originally filed, the Official Trustee
only challenged the notice issued by MHADA under section 95-A. It
is by the amendments that the Official Trustee also challenged the
building plans, permissions/NOCs issued by respondent Nos.1, 2, 3
and 5 for the redevelopment of the property and sought orders
restraining respondent No.5 from granting the developer any TDR
certificates unless and until the actual area measurement was done of
the plots.
In the petition, as it was originally filed, the Official Trustee
SRP                                                                                                                                                        71/87
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contended that the POA had been cancelled and that, therefore, the
Consequently, it was
or sanctioned by the authorities concerned.
proposal submitted by the developer could not have been considered
contended that the impugned notice under section 95A was illegal.
The only relief sought was for the cancellation of the notice under
section 95A. By the first amendment, the Official Trustee introduced
averments challenging the NOC issued by MHADA and the plans,
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permissions / NOCs granted by respondent Nos.1, 2, 3 and 5 for the
redevelopment of the property and an order quashing and setting aside
the orders and permissions granted by MHADA and MBR&RB under
DCR 33(7) or any other DC Regulation for redevelopment or
development of the property. The Official Trustee also sought an
order directing respondent No.5 not to grant any TDR certificate to the
developer unless and until the actual area measurement was done of
C.S. No.113 and 1/113 and the illegalities and irregularities in the
building plans and also the alleged development scheme under DCR
33(7)are removed. By the second amendment, the Official Trustee
sought an order directing respondent No.5 not to issue any TDR
certificate in favour of and in the name of the developer with a further
SRP                                                                                                                                                        72/87
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direction to respondent No.5 to issue such TDR certificates only in the
name of the Official Trustee.
Thus, even as far as the pleadings are concerned, the only relief
claimed in the petition as originally filed on 4th May, 2009, was in
respect of the impugned notice under section 95-A. The main reliefs
were claimed by the amendments which were granted only on 29th
November, 2010 and 30th October, 2012. As stated herein above, by
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then, substantial part of the redevelopment had already commenced
and it would have, in all probabilities, been completed but for the
eighth occupant viz. the priest holding on to his tenement on behalf of
the Official Trustee.
82.
It is difficult to hold that DC Regulation 67 of the 1991
Regulations are inapplicable in view of the order dated 8th August,
1997, having attained finality. Clause 1 of the Minutes of Order
specifically provides that the developer shall be entitled to avail of
only the privilege of the FSI available in respect of the property,
including in the form of TDR in accordance with the DC Regulation
67. Even the Special Leave Petition No.2883 of 1998, filed by the
SRP                                                                                                                                                        73/87
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Official Trustee against the order dated 8th August, 1997, was
dismissed by the Supreme Court on 27th July, 1998. To uphold this
contention would be contrary to the order dated 8th August, 1997 of
the Division Bench of this Court and of the Supreme Court dated 27th
July, 1998.
Mr. Hakani then submitted that the agreement to transfer the
83.
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title to the property as contemplated by the MOU was given up and
instead the Official Trustee and the developer agreed to the terms and
conditions contained in the minutes of the order dated 8th August,
1997. In other words, the title to the property cannot vest in the
developer. He submitted that the proposals and plans having been
considered and processed under Regulation 33(7) diluted the rights of
the Official Trustee by granting ownership rights to the tenants. He
submitted that it would be compulsory under Regulation 33(7) to form
a co-operative society and to transfer the ownership of the property to
such society.
84.
The apprehension is not well founded. Firstly, none of the
SRP                                                                                                                                                        74/87
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respondents contended that there is any transfer of ownership of the
property in favour of the developer or the tenants. The occupants do
not contend that the property vests or is liable to vest in them. The
NOC granted also does not transfer or vest the title in the occupants.
Nor does it provide for the formation of a co-operative society.
MHADA has confirmed that there is no such vesting of title in the
The title continues to vest in the Official Trustee.
The
tenants.
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developer also does not contend that the title vests in him or that he is
either bound or entitled to transfer the title to any other person or
persons, including the co-operative society.
Mr. Hakani relied upon the following note in Appendix III
85.
""All the regulations / modifications mentioned above
shall not be applicable to the areas which are affected
by coastal regulations zone notification issued by
Ministry of Environment dated 19th February, 1991 and
orders issued from time to time."
Mr. Hakani submitted that in view of this note, the processing
and approval of the impugned plans under Regulation 37 are contrary
to law.
86.
As we noted earlier, the issue regarding the validity of the plans
SRP                                                                                                                                                        75/87
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and the permissions granted were raised in Trust Petition No.5 of
2004. It is not open to the Official Trustee to keep raising different
contentions in successive proceedings. In view of the previous orders
of this Court, we find it difficult to entertain these contentions. It is,
however, clarified that it is open to the authorities to take any steps in
this regard. We do not, by this order, intend preventing them from
doing so. Needless to say that if they do so, it would be subject to the
87.
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rights and contentions of all the parties.
There is, however, one aspect of the matter which is of
considerable importance directly relating to the rights of the Official
Trustee. DCR 67 came into force from 21st April, 1995. Thus, when
the order dated 8th August, 1997 was passed, DCR 67 was in force.
As on that date, under Regulation 67(6), an owner was entitled to
unconsumed FSI. Regulation 33(7) was introduced in DCR 67 only
with effect from 25th January, 1991 i.e. after the order dated 8th
August, 1997. The property, admittedly, did not vest in the developer.
It continues to remain and vest in the Official Trustee. The important
issue is whether the developer was entitled to the benefit of any
SRP                                                                                                                                                        76/87
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change in law after the date of the order dated 8th August, 1997, in
respect of the quantum of FSI. We think not. The title to the property
continues to remain and vests in the Official Trustee. There is nothing
to indicate that the developer is entitled to the benefit of any change in
law by virtue of which additional FSI is granted. The developer's right
as to the quantum of FSI must stand frozen as on the date of the
consent terms viz. 8th August, 1997. A view to the contrary would
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mean that the developer has a right in perpetuity to the benefit in the
88.
change of law regarding the quantum of FSI which cannot be the case.
Mr. Hakani submitted that the permissions were granted
ignoring the building bye-laws read with DC Regulations of 1991. He
submitted that the plan had been approved by the Municipal
Corporation ignoring the terms and conditions of the Maharashtra
Heritage Conservation Committee (MHCC) dated 21st March, 1998.
For instance, he submitted that the original foot-prints are to be
maintained. He also submitted that the existing structure has been
changed inasmuch as there are no common WCs meant for the
devotees. He subsequently stated that common WCs were there, but
SRP                                                                                                                                                        77/87
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were shown at the wrong location in the plans. The original structure
was a Dharamshala. Further, two small temples had not been shown
89.
in the plan.
Mr. Govilkar, the learned counsel appearing on behalf of the
petitioner in Writ Petition No.2572 of 2012 adopted Mr. Hakani's
submission and also submitted that parking facility is shown for 11
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cars, which is not possible. He also submitted that the indications
provisions.
Firstly, these issues were and, in any event, could have been
90.
regarding the access to the car park are also in violation of the heritage
raised earlier, including in Trust Petition No.5 of 2004. Secondly, so
long as the rights of the trust are not affected, we see no reason to
exercise our jurisdiction under Article 226 in view of the gross delay
and laches.
By the time the writ petition was filed and the
amendments in this regard were proposed, a substantial part of the
work pursuant to the plans had already been completed. Thirdly, it is
difficult for this court in a writ petition to determine these issues.
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Indeed, from the above facts it appears that some relaxation in this
regard was granted by the authorities in view of the peculiar position
of the structures and the plot. We had earlier referred to the NOC of
the Heritage Committee which permitted a marginal modification
regarding the maintenance of the original foot-prints. We are not
inclined, in these circumstances, to order a demolition of the work that
has already been carried out. The authorities are always at liberty to
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inspect the site, determine whether the construction is in accordance
necessary.
In any event, before issuing the DRC certificates, the authorities
91.
with the plans and permissions and to take suitable action, if
must satisfy themselves that the developer has not done anything
which would jeopardize the financial interests of the trust in any
manner whatsoever.
If it is found that the developer has done
anything which affects the rights of the trust after, of course, taking
into consideration the benefits that the developer was entitled to under
the order of this court, the authorities must withhold the certificates
and/or recall or cancel the same. For instance, if as a result of any
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construction, the trust is deprived the benefit of any FSI after 8th
August, 1997, the authorities must take the said action. This must also
be the case if the developer has utilized FSI in excess of what it was
entitled to by virtue of the order dated 8th August, 1997. As we noted
earlier, the developer is not entitled to the benefit of any increase in
Mr. Hakani then submitted that even assuming that Regulation
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92.
the FSI after 8th August, 1997.
33(7) applied, the permissions were obtained on false representations
and contrary to the provisions of Regulation 33(7). He submitted that
Regulation 33(7) required the consent of 70% of the tenants. There
are 8 tenants. The Poojari is in charge of one of them. He submitted
that it could be demonstrated that the alleged consent of two other
tenants was patently fraudulent. There were no such consents and the
persons who had consented had no authority to issue such consent. If
that be so, the permission under Regulation 33(7) could never have
been granted as there was no consent of 70% of the tenants.
93.
During the period 2000 to 2002, the developer entered into
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agreements with seven tenants for the redevelopment of the chawl.
The MBR&RB certified the list of eight occupants, the eighth being
the Poojari on behalf of the Trust who has not consented and,
therefore, has been issued the impugned notice under section 95-A of
the MHADA Act. There is no dispute in this respect as regards five
occupants. However, five ought of eight would constitute only 60%
of the occupants. The developers agreement with two occupants only
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has been challenged. The Official Trustee must succeed with respect
to both for even if he fails with respect to one, it would amount to
75% of the occupants having jointed the redevelopment scheme which
meets the requirement of 70%.
94.
This ground of challenge was specifically taken by the Official
Trustee in Trust Petition No.5 of 2004.
In paragraph 35 of that
petition, it was averred that the developer had shown bogus tenants in
the premises.
The correspondence in this regard was expressly
referred to. For instance, by his letters, both dated 11th September,
2006, the Official Trustee informed MBR&RB that one Bhawarlal
Shivratan Vyas and one Vilas Narayan Mahajan were neither tenants
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nor occupants of room Nos.2 and 3 respectively as per his records.
This was one of the grounds on the basis of which the Official Trustee
sought the reliefs in the Trust Petition which we referred to earlier,
including an order that the developer is not entitled to demolish any
chawl or any structure on the property and that the developer ought
not to be permitted to utilize the property or put up any construction
thereon. The Official Trustee seeks to raise the same contention in
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this writ petition as well. As we noted earlier, Trust Petition No.5 of
2004 was disposed of. The reliefs claimed in this regard were not
granted by the learned single Judge. The order was confirmed by the
Division Bench. In any event, the facts in this regard are disputed and
complex. It would be difficult in a writ petition to adjudicate the
same. The dispute in this regard was raised in the year 2002. It was
agitated in the earlier proceedings. No reliefs on the basis thereof
were granted. On the basis of the alleged consents, the permissions
were granted and most of the construction was completed by the time
the present writ petition was filed and by the time it was amended to
introduce the new grounds of challenge.
It would be unfair, not
merely to the developer, but also to the other occupants to now restore
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For instance, in the case of Parvatibai Vyas, it is contended that
95.
status quo, ante.
the consent is invalid for it was signed by her nephew. The said
Bhawarlal Vyas was the nephew of Parvatibai Vyas. That he gave his
irrevocable consent in respect of room No.2 is not denied.
The
Official Trustee denies that he, in fact, occupied room No.2. It is
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difficult in this petition and at this point of time to say that his
premises is false.
There is a dispute, therefore, between the parties as to who is in
96.
assertion in the consent letter that he was in possession of the said
possession. The letters addressed to the authorities are silent about the
Official Trustee being in possession. It merely stated that as per the
records, the said persons were not in occupation. It is for MHADA,
while determining the list of eligible occupants, to determine these
disputed questions of facts. We do not preclude MHADA from doing
so even today.
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97.
As regards room No.3, Mr. Hakani submitted that one Smt.
Sushila Athawale was the tenant and not Mahajan who gave the
consent. However, the said Sushila Athawale died before Mahajan
gave his consent. Mahajan claimed to be a tenant. The suit filed in
the Small Causes Court was dismissed in January, 2013. This, again,
is a seriously disputed question which is for MHADA to decide in the
first instance.
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Indeed clause 11 of the NOC dated 6th June, 2002, issued by
MHADA states that if it is subsequently found that the documents /
information submitted with the application for NOC is incorrect or
forged, the NOC would be cancelled and that the applicant would be
responsible for the consequences. MHADA is, therefore, always at
liberty to investigate the complaints, including by the Official Trustee
in this regards.
98.
The contention that the NOC of the MHCC was required even
after the approval under Regulation 33(7) and that the NOC of MHCC
was obtained prior thereto suffers from gross delay and laches. The
permission under Regulation 33(7) was obtained on 30th January,
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2002. The authorities permitted the construction thereafter. This
objection was also raised and/or could have been raised in Trust
Petition No.5 of 2004. Major part of the construction was completed
thereafter. Any order would adversely affect the other occupants as
well after this long lapse of time.
In this view of the matter, it is not necessary for us to consider
99.
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Mr. Chinoy's submission in the alternative that in any event by the
CRZ Notification of 2011, the previous position regarding the
applicability of DC Regulation in force on 19th February, 1991, had
been altered.
He submitted that the CRZ Notification of 2011
stipulates that for development of old cessed / tenanted building under
DCR No.33(7) the Town and Country Regulations in force on 6th
January, 2011, i.e., DC Regulations of 1991 will be applicable. He
contended that as a portion of the old cessed building / chawl
admittedly even today remains and requires to be demolished for
reconstruction, the developer would in any event be entitled to the
benefit of the CRZ Notification of 2011. The only consequence being
that the developer would require to formally submit revised / altered
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plans.
We do not intend expressing any view on this aspect of the
matter. We, however, wish to enter a caveat in this regard. Even
assuming that the submission is well founded, the same would not
entitle the developer to any FSI in excess of what the developer was
entitled to as on 8th August, 1997. In other words, even assuming that
the developer would be entitled to the benefit as alleged by Mr.

Chinoy, in the alternative, the same would be restricted to the extent of
the FSI that the developer was entitled to as on 8th August, 1997.
100. Nor is it necessary, therefore, for us to consider Mr. Chinoy's
alternate submission that the sanctions and approvals were validly
granted in view of section 154.
101. In the circumstances, the Writ Petition is dismissed subject what
is stated above, including the following clarifications :
The dismissal of this Writ Petition does not affect the rights of
the Official Trustee to make any representations before the authorities

including MHADA, BMC, MBR&RB and the MHCC.
The
authorities are not precluded from deciding the same and taking any
action that they desire. The developer is entitled to the FSI potential
as on the date of the order dated 8th August, 1997, and not to any
benefits in the quantum of FSI by virtue of any subsequent change in
the law. If the action of the developer has resulted in the Trust being
deprived of FSI beyond what was available after 8th August, 1991, the

same shall be adjusted from the developers entitlement to FSI under
the said order dated 8th August, 1997. The prior approval of the
Official Trustee would be required before granting the transfer of the
DRC certificates in the developer's name. In the event of the Official
Trustee refusing to give his consent, the parties are at liberty to adopt
appropriate proceedings. All interlocutory orders to stand vacated after
eight weeks from today.
There shall be no order as to costs.
K.R. SHRIRAM, J.
S.J. VAZIFDAR, J.

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