The Plaintiff has constructed the 6th & 7th floors in excess of the sanctioned construction. Similarly other developers have constructed far in excess of the sanctioned construction. Purchase of the FSI cannot legalise such unauthorised construction. Upon purchase of the FSI the Plaintiff would get the right to construct. That right would have to be exercised in accordance with law. The Plaintiff must apply in accordance with law for such construction. The Plaintiff must show the FSI which has been unutilised until then. The Plaintiff must get further plans approved for such further construction. The defendant must see that the total construction does not exceed the FSI of the plot.
If that is not done the construction is wholly unauthorised, not even only irregular. Such construction cannot be allowed by the authority to be permitted by exceeding the FSI. {Para 9}
The Plaintiff's case that it had excess FSI to the exclusion of all the other buildings in the same layout under the same sanctioned plan under which its building was initially constructed runs wholly contrary to the Plaintiff's application for regularization. The total FSI of the suit plot having been exceeded, the Respondent could not and has not regularised the Plaintiff's unauthorised construction of the 6th and 7th floors which is in excess of the sanctioned plans.
In fact, even if the Plaintiff has additional FSI the Plaintiff has no license to construct without the sanctioned plan. The Plaintiff's construction must conform with all the other requirements of the Act with regard to the structure being put up. For example, the Plaintiff must leave the necessary open spaces around the construction. The Plaintiff cannot be permitted to state that because it has FSI, its construction which would violate building norms can also be permitted. That would violate the Act itself and the Development Control Regulations, 1991 (DCR) thereunder which also cannot be permitted by regularising such construction.
Bombay High Court
1. The Appellant / Plaintiff is a co-operative housing society which has been issued notice by the Respondent / Defendant / Mumbai Municipal Corporation (MMC) under Section 351 of the MMC Act dated 19th November, 2005 for demolition of unauthorised construction of the 6th & 7th Floors of the suit building of the society which has been challenged by the society.
2. The Plaintiff obtained status quo order which came to be extended until the hearing of the suit.
3. The Plaintiff society building is one amongst several other jsn 2 AO No.15947_2013 buildings constructed under one sanctioned plan in a layout dated 8 th June, 1981. The other buildings in the same layout similarly constructed had similar an even more extensive construction far in excess of the sanction granted under aforesaid plan. Those societies had also filed suits and obtained orders of injunction or status quo. Their interim applications had come to be dismissed. Appeals filed by them against orders of dismissal on their interim applications came to be dismissed. SLP filed by them against those orders also came to be dismissed.
4. Those societies as also the Plaintiff, represented by the same architect one Mr. Tipnis, had applied for regularisation of the unauthorised construction. The regularisation application was rejected. The parent society of the members of all the housing societies had filed the Writ Petition against the order of rejection of regularization application. That Writ Petition which was pending in this Court was transferred upon the orders of the Supreme Court to it. An order came to be passed therein rejecting their prayer for regularization. The Supreme Court directed all the unauthorised construction which was in excess of the sanctioned plan dated 8th June, 1981 to be demolished.
5. The status quo order granted in favour of the Plaintiff remained. Hence the Respondent applied for vacating status quo order. The Plaintiff opposed. The impugned order is passed thereunder.
6. The Plaintiff claims that its case is wholly different from the case of the other buildings constructed under the same plan under the same layout because the Plaintiff had more FSI than its construction so that its 6th & 7th floor can be regularised. The Plaintiff has relied upon the same application for regularization made by the same architect Mr. Tipnis as was by the other societies but claims that in view of additional FSI that it has, its 6th and 7th floors must be deemed to be approved.
7. The Plaintiff also claims that it was not a party to the proceedings before the Supreme Court since it had obtained a status quo order which was to be continued pending the suit and hence its Notice of Motion was not dismissed as was the case of the other societies. With regard to the Writ Petition the Plaintiff claims that though some of its members were members of the parent society which had filed the Writ Petition, the Plaintiff society itself was not its member and hence the order in the Writ Petition is not passed against it by the Supreme Court. The Plaintiff, therefore, insisted that its case should be separately considered on merits.
8. The seminal case of the Plaintiff is shown in its reply to the notice. The construction of its building is under the IOD dated 8 th June, 1981 and the plan sanctioned thereunder. The Plaintiff building is admittedly one of the buildings constructed under the layout. The construction of all the buildings would require to be within the permitted total FSI under that layout. That was the total FSI of 102663 Sq.ft. There have been various agreements between private parties being the lessees of the land and the various developers of the buildings to be constructed on the land under the aforesaid sanctioned plan for change of FSI. The Plaintiff has relied upon and produced several of these agreements in its reply to the MMC's notice, in the plaint and shown them to the Court. Counsel on behalf of the Plaintiff has made meticulous arithmetical calculation about the FSI agreed to be purchased and sold by various parties from the FSI of the plot of the land under the layout and the sanctioned plan, but with which the MMC is not concerned. Whatever be the agreements of the FSI by and between the Plaintiff's developer that the Plaintiff seeks to enforce must fall within the total FSI of the plot and cannot exceed that FSI. Consequently if under such agreements if the Plaintiff's developer was given, of course, for consideration, more FSI by the other developers of the other buildings under the same layout and sanctioned plan, the Plaintiff may have rights only qua, those developers. If despite selling more FSI to the Plaintiff's developer those developers continued to utilise more FSI then they were entitled, it was for the Plaintiff or its developer to challenge such construction as it would adversely affect the Plaintiff's right to construct under the FSI that its developer purchased for construction of the Plaintiff's building. That is not done.
9. The Plaintiff has constructed the 6th & 7th floors in excess of the sanctioned construction. Similarly other developers have constructed far in excess of the sanctioned construction. Purchase of the FSI cannot legalise such unauthorised construction. Upon purchase of the FSI the Plaintiff would get the right to construct. That right would have to be exercised in accordance with law. The Plaintiff must apply in accordance with law for such construction. The Plaintiff must show the FSI which has been unutilised until then. The Plaintiff must get further plans approved for such further construction. The defendant must see that the total construction does not exceed the FSI of the plot.
If that is not done the construction is wholly unauthorised, not even only irregular. Such construction cannot be allowed by the authority to be permitted by exceeding the FSI. This has been clearly set out in the judgment of the Supreme Court in the case of Esha Ekta Apartments Co-Op. Hsg. Soc. Ltd. & Ors. Vs. Municipal Corporation of Mumbai & Ors., Civil Appeal No.7934 of 2012 arising out of SLP (C) No.33471 of 2011, in which various earlier Judgments in that behalf have been cited.
thus :
(1) In the case of Friends Colony Development Committee Vs. State of Orissa, (2004) 8 SCC 733, it has been observed that :
" .... Builders violate with impunity the sanctioned building plans and indulge in deviations much to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Serious threat is posed to ecology and environment and, at the same time, the infrastructure consisting of water supply, sewerage and traffic movement facilities suffers unbearable burden and is often thrown out of gear".
The judgment lays emphasis upon planned development in the cities. (2) In the case of Priyanka Estates International Pvt. Ltd. Vs. State of Assam, (2010 2 SCC 27, Supreme Court cautioned against the illegal and unauthorised construction beyond sanctioned plans which are against public interest and hazardous to the safety of occupiers and residents.
(3) In the case of Dipak Kumar Mukherjee Vs. Kolkata Municipal Corporation & Ors. (2012) 10 SCALE 29, the Supreme Court considered the construction of additional floors in residential buildings in violation of sanctioned plans. It observed that such construction violated not only municipal laws but constitutional rights of other citizens. It also drew a parallel with the unauthorised construction of hutments which would be demolished by the municipality so that illegally and unauthorisedly constructed multi- storied constructions made by economically affluent people must be considered on par.
(4) The case of Royal Paradise Hotel (P) Ltd. Vs. State of Haryana and Ors. (2006) 7 SCC 597, holds that construction made in the teeth of the notice issued for stopping unauthorised construction cannot be regularised as no construction made in violation of the Municipal Act can be regularised.
10. A reading of these judgments make it clear that there is no leeway for the municipality to sanction and allow or the Court to permit any unauthorised construction which is not under any sanctioned plan, the FSI traded between private parties of that plot notwithstanding.
11. In this case the Plaintiff's society building is amongst other buildings on the same plot of land. The Plaintiff had full knowledge of the blatantly unauthorised construction which went on same plot of land for other buildings near the Plaintiff's building by the other developers who had no FSI for such construction. The Plaintiff failed to bring this to the notice of the Respondent. The total FSI on the suit plot of land reached its climax and the further construction under the same layout by the Plaintiff as also by other buildings became totally unauthorised.
12. Conscious of that fact, the Plaintiff along with the others applied through its architect Mr. Tipnis for regularization of such construction. This has been contended by the Plaintiff in reply to the suit notice. The Plaintiff has relied upon the actual application itself as made by " all the people in the layout for regularization of certain offending structure ...". It is based upon such regularization application that the Plaintiff filed the earlier suit and obtained an order for considering the Plaintiff's representation.
13. It may, at once, be mentioned that a regularization application proceeds on the premise that the structure is admittedly irregular. A regular structure cannot be regularised. No party would apply for a regular structure to be regularised. The application for a regularization, therefore, implicitly shows that the party applying admits that his / her / its structure is irregular. The Plaintiff's case that it had excess FSI to the exclusion of all the other buildings in the same layout under the same sanctioned plan under which its building was initially constructed runs wholly contrary to the Plaintiff's application for regularization. The total FSI of the suit plot having been exceeded, the Respondent could not and has not regularised the Plaintiff's unauthorised construction of the 6th and 7th floors which is in excess of the sanctioned plans.
14. The Judgment in the case of Esha Ekta (Supra) shows also the parameters for regularization of irregular structures. The case of Friends Colony (Supra) cited in the judgment shows that municipal laws permit deviations from sanctioned constructions being regularised by compounding "but that is by way of exception which, unfortunately, has become the rule". The Judgments holds that only such deviations which are bona fide and are attributable to some misunderstanding or which were such that the benefit gained by the demolition would be far less than the disadvantage suffered by demolishing could be regularized. It further holds that deliberate deviations did not deserve to be condoned and compounded. It also enjoins that the compounding of deviations should be kept to the bare minimum. It observes that professional builders stand on different footing from an individual constructing his own building. A professional builder is supposed to understand the laws better and deviations by such builders can be safely assumed to be deliberate and done with the intention of earning profits and hence would deserve to be dealt with sternly so as to act as detriment for its future. It also appreciates that the builders enter into underhand dealings ..... (in this case several builders / developers of several buildings on the same plot under the same layout, such as the Plaintiffs developer exchanged FSIs, and yet allowed other builders to continue blatantly unauthorised construction).
15. The Supreme Court further observed that only marginal, accidental violations, unconsciously made, after trying to comply with all requirements of the law can alone qualify for regularization.
16. Hence in paragraph 3 of the Judgment of Esha Ekta (Supra) the Supreme Court held that the rejecting the prayer for regularization of the floors constructed in wanton violations of the sanctioned plan was correct.
17. The case of the Plaintiff though made out separately is no different. The difference is emphasised only in the fact of purchase of additional FSI from other private parties. The Plaintiff allowed its own FSI to be jeopardized, though purchased, by not heeding the unauthorised construction of those developers on the same plot who
18. had no such FSI or who had sold such FSI to the Plaintiff.
Just as all constructions must conform within the extent of the FSI for its regularization on an individual plot, all construction in a layout must confirm to the total FSI of the plot in that layout. That having been exceeded, the construction would be in violation of the Municipal Act. That would also be wholly unauthorised construction that, therefore, cannot be protected. In fact, even if the Plaintiff has additional FSI the Plaintiff has no license to construct without the sanctioned plan. The Plaintiff's construction must conform with all the other requirements of the Act with regard to the structure being put up. For example, the Plaintiff must leave the necessary open spaces around the construction. The Plaintiff cannot be permitted to state that because it has FSI, its construction which would violate building norms can also be permitted. That would violate the Act itself and the Development Control Regulations, 1991 (DCR) thereunder which also cannot be permitted by regularising such construction.
19. The Plaintiff's construction is not one which falls within the parameters laid down by the Supreme Court in the Friends Colony (Supra) and Royal Paradise (Supra).
20. Mr. Andhyarujinah on behalf of the Plaintiff argued that the application of the Plaintiff's architect for regularization was deemed to be approved and sanctioned by the Defendant because it was not rejected within 60 days of the application.
21. Mr. Kamdar on behalf of the Respondent / Defendant / MMC pointed out that the only deeming provision is U/s.345 of MMC Act.
Hence every person intending to erect a building would have to give notice to the Commissioner of his intention U/s.337 of the Act and if within 30 days after receipt of such notice the Commissioner failed to intimate to the person who gives the notice his disapproval of the building which the person proposes to erect, the person may within one year from the date of the notice proceed with the building construction.
However, in this case the Commissioner intimated his disapproval to the proposal for construction inter-alia of the Plaintiff's building initially made by IOD issued U/s.346 of the Act dated 8 th June, 1981 sanctioning the plan U/s.345 of the Act for construction of 1,82,473 Sq.ft. of construction which admittedly included the Plaintiff's building as averred by Plaintiff in paragraph 6 of the plaint itself.
22. The applicability of Section 345 to the representation made for regularization of a wholly illegal construction is incorrect. The Plaintiff's building was to be constructed under the common IOD and CC issued in respect of common layout under DCR.
23. Upon the receipt of the CC, the construction was to proceed U/s.44 of the Maharashtra Regional & Town Planning Act, 1966 (MRTP Act). Upon such application being made U/s.44 of the Act the municipality may grant or refuse the permission U/s.45. The permission granted would have to be under the commencement certificate in the prescribed form. If such permission is not communicated within 60 days from the date of receipt of the application the applicant would be deemed to have been granted such permission. The application for regularization of a wholly illegal construction is not an application for permission for development of the building U/s.44 of the MRTP Act.
Hence the deeming provision U/s.45 would also not apply to it.
24. The Plaintiff has relied upon certain circulars of the MMC in respect of the regularization of unauthorised construction of various kinds to show when the construction work was carried out under the amended plans but without getting the sanction and beyond the stop work notice. The work may be regularised by penalty if it is within the permissible FSI and consequently approveable. In this case had the Plaintiff's construction been in an individual building and the work of construction was within the permitted FSI that aspect may have been considered. But since the construction of the Plaintiff's building is in an approved layout, the Plaintiff's building cannot be taken to have additional unutilised FSI which could be permitted to be adjusted against the construction to be put on sanctioned plan when the total FSI of the plot is reached and exceeded by either the construction of the Plaintiff's building or any other building to be constructed under the same layout and the under same approved plan.
25. The penalties paid by all the persons together for regularization of the unauthorised construction of the buildings including the Plaintiff's building through their common architect Mr. Tipnis is also to no avail. Such payment of penalty cannot regularize such wholly illegal construction.
26. Hence the reliance placed by the Plaintiff upon other circulars of the MMC showing composition of charges for regularization in two separate categories and the Minutes of the Meeting held in case of such regularization relied upon by the Plaintiff also cannot bring the Plaintiff's case within the categories claimed by the Plaintiff.
jsn 11 AO No.15947_2013
27. Mr. Andhyarujinah categorised (1) and (5) in that behalf as applicable to the Plaintiff. Category 1 relates to CC being issued and further work done after stop work notice as per approved plans. The Plaintiff's work is not as per any approved plan. It would be under a further plan required for approval but which was not approved. Hence the Plaintiff's case cannot fall under category (1) of the said circular / Minutes of the Meeting of the MMC.
28. Mr. Andhyarujinah also argued that it would fall under category (5) category 5 relates to work done without approval but the work is approveable which would be a case of post facto approval. The Plaintiff's work was without approval. However, in view of the FSI of the plot having been exceeded, the work was not approveable, the Plaintiff's claims of its individual FSI under its own private agreement notwithstanding.
29. The Plaintiff's case would, therefore, fall under category (6).
Category 6 is for work done without approval and the work is not approveable - Case of regularization. Admittedly the Plaintiff applied for regularization and sought to make out case for regularization. Such not approveable work cannot be regularised and therefore, the common regularization application made by Mr. Tipnis, the architect of all the societies including the Plaintiff, was rightly rejected.
30. The architect's application dated 24 th February, 1997 would be interesting to consider. It calls for approval of revised plans as soon as possible. It shows 9 buildings being Nos.1, 2, 3, 4, 5, 6, 7a, 7b and 8. It shows the construction carried on in each of them except building No.1. It shows construction of buildings having 6, 7, 9, 14, 19 floors etc. This is though the construction which was sanctioned which was ground + 5 upper floors. It shows that the penalty has been paid and requests approval of the amended plans. The amended plans were jsn 12 AO No.15947_2013 submitted on 30th April, 1984. The amended plans were not approved. It is remained at that.
31. The construction of the 6th and 7th floors of the Plaintiff's building is, therefore, not under any approved plans, exceeding, the FSI, made in violation of the MMC Act and a blatant construction impertinently made disregarding the law relating to building construction altogether. It would be illegal to protect such construction in view of the judgments in the cases of "Friends Colony and Royal Paradise".
32. In view of the order passed in the case of Esha Ekta (Supra) the Respondents would be enjoined to demolish such wholly unauthorised construction. However, status quo order was in force and hence the Defendant / Respondent / MMC applied for vacating that order.
33. The learned Judge in the impugned order considered the challenge to the notice dated 19th November, 2005 which was the cause of action in the suit and considered regularization proposal as also the Plaintiff's case of deemed approval. The learned Judge has considered the FSI granted to the Plaintiff and the FSI meant to be utilised for the Plaintiff's building under the commencement certificate issued in respect of the suit layout. The learned Judge has also considered the representation that the Plaintiff was allowed to make. The learned Judge has finally considered the Supreme Court order in the case of Esha Ekta (Supra) and the specific case of the Plaintiff for building No.4 alone having approval for ground + 5 upper floors but showing the present position of ground + 7 upper floors. The learned Judge has, therefore, considered changed circumstances after the order of Supreme Court in the case of the other buildings on the same layout. The case of vacating the ad-interim status quo order was made out and jsn 13 AO No.15947_2013 hence allowed the application and vacated the status quo order. The order is correct.
34.. The Appeal from Order is dismissed.
35. In view of the order passed in Appeal from Order Civil Application is disposed off accordingly.
36. The Plaintiff shall register the Appeal from Order.
37. This order is stayed for two weeks.
( ROSHAN DALVI, J.)
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