Writ Petition No. 315 of 2013. Case: Mahendra Builders Vs The State of Maharashtra and Ors.. Bombay High Court

Case NumberWrit Petition No. 315 of 2013
Party NameMahendra Builders Vs The State of Maharashtra and Ors.
CounselFor Appellant: Aspi Chinoy, Sr. Advocate and P.S. Dani, Sr. Advocate i/b Janhvi Bejoy and For Respondents: Geeta Shastri, Additional Government Pleader and Anjali Helekar, Assistant Government Pleader
JudgesAnoop V. Mohta and G. S. Kulkarni, JJ.
IssueConstitution of India - Article 226; Maharashtra Regional and Town Planning Act, 1966 - Sections 47, 53, 53(1)
Judgement DateFebruary 11, 2016
CourtBombay High Court

Judgment:

G. S. Kulkarni, J.

  1. Rule Returnable forthwith. By consent and at the request of the parties heard finally.

  2. By this Petition under Article 226 of the Constitution of India, the petitioners seek quashing and setting aside of the order dated 24 January 2013 passed by the respondent No. 3- the Municipal Commissioner of the Mumbai Municipal Corporation, whereby it is held that the proposal for regularization submitted by the respondent Nos. 5 to 7 of additions and alterations namely additional rooms and toilets at the premises namely 'Empire Royale Hotel' 3rd Floor, Empire Building, 147, Dr. D.N. Road, Fort, Mumbai, be processed by the Executive Engineer (Building and Proposals). The petitioners are also seeking quashing of the communication of the Assistant Engineer (Building and Proposal) dated 22 March 2012 by which certain compliances are sought from Respondent Nos. 5 to 7. A further prayer is made that the notice dated 10 October 2003 issued under section 53 (1) of the Maharashtra Regional Town Planning Act 1966 (for short the M.R.T.P. Act) and order dated 18th March 2004 passed by the Executive Engineer (Building and Proposal) declaring the said additional construction on the 3rd floor with intended toilets as unauthorized be implemented.

  3. The litigation between the parties has a chequered history which needs to be noted in a little detail. The Petitioners claim to be the owners of a property being a heritage building known as 'Mahendra Chambers' situated at C.S. No. 1390, Dr. D.N. Road, Fort Mumbai acquired by virtue of a Deed of Assignment and Agreement dated 23rd August 1974 entered with the predecessor-in-title of the Petitioners namely the Parsi Panchayat Trust. These premises stand on the land leased by the Municipal Corporation for Greater Mumbai. There is a litigation pending in regard to the issue of subsistence of the lease. However, that may not be relevant in the context of the present dispute as the subject matter pertains to the additions and alterations namely the construction of the additional rooms and intending toilets on the 3rd floor of the said premises by Respondent No. 5 to 7, who are admittedly in occupation of the same. The 3rd floor premises were used by Respondents for a lodging house business under the name and style of "Empire Hindu Hotel."

  4. It is the Petitioner's case that the respondent No. 5 under the guise of carrying structural repairs had made unauthorized construction on the 3rd floor of the said premises without the consent of the petitioners or of the Municipal authorities by constructing several additional rooms with attached toilets as also a mezzanine floor so as to multiply number of rooms and profit therefrom. This unauthorized construction casted a huge load on the 100 year old heritage building.

  5. The Municipal Corporation had issued a notice dated 10th October 2003 under section 53 (1) of the M.R.T.P. Act calling upon respondent No. 5 to demolish the mezzanine floor as also the additional rooms with intended toilets. Petitioners aver that even as per the plans dated 28 June 2001, approved by the Corporation it was evident that there were only 16 number of rooms on the 3rd floor with only two toilet blocks on other side of the 3rd floor, which revealed non-existence of the mezzanine floor and the additional rooms with attached toilets. Respondent No. 5 attempted to seek regularization of this unauthorized construction after receipt of the demolition notices dated 10 October 2003 and 5 January 2004 issued by the Corporation under section 53 (1) of the M.R.& T.P. Act. The Executive Engineer (Building and Proposal) by his communication dated 18 March 2004 rejected the regularization proposal. In this communication it was recorded that as per the municipal records of the Assessment Department there was no proof/documents to prove existence of mezzanine floor above 3rd floor of the building and that as regards the additional rooms constructed on the 3rd floor with intended toilets the same amounted to additions and alterations which are not permissible as per Municipal policy regarding repair permission. For these reasons, the amended plans for regularization of the mezzanine floor and the additional rooms with intended toilets on the 3rd floor of the said premises were rejected.

  6. Against this rejection of the regularization plans by the Executive Engineer of the Corporation, respondent No. 5 approached the City Civil Court at Bombay, by filing L.C. Suit No. 1517 of 2004, inter alia challenging the rejection of the regularization proposal and action initiated by the Municipal Corporation to demolish the mezzanine floor and the additional rooms. A notice of motion seeking injunction in which initially an injunction was granted which came to be ultimately rejected by the Civil Court by an order dated 10 July 2009. It is stated that subsequently the suit came to be unconditionally withdrawn by the respondent No. 5 on 21 July 2010.

  7. Respondent No. 5 had also simultaneously filed a statutory appeal under section 47 of the MRTP Act before the State Government challenging the rejection of regularization of the mezzanine floor and the additional rooms with toilet by the said communication of the Executive Engineer dated 18 March 2004 which was Appeal No. 4303/600/2004. The Petitioners were not served with a copy of the Appeal and that they were kept in dark of the proceedings about the said Appeal. However, after much correspondence with the Urban Development Department and the Municipal Corporation it was revealed that the Hon'ble Chief Minister had passed an order dated 6th October 2004 remanding the matter to the Municipal Corporation for re-consideration. As the petitioners were not served with any of the proceedings of the statutory appeal as preferred by the respondent No. 5 and that copies of the documents and the entire correspondence was not being furnished to the petitioners, the petitioners approached this Court in Writ Petition No. 1838 of 2008. By an order dated 25th September 2008 passed by the Division Bench the Municipal Commissioner was directed to hear the petitioners as well as respondent Nos. 5 and 6, in taking a decision on the application of the respondent No. 5 being decided by the Municipal Commissioner in pursuance of the orders passed by the Hon'ble Chief Minister.

  8. Parties accordingly appeared before the Municipal Commissioner by filing their respective written submissions as also various documents were placed for consideration of the Municipal Commissioner. The Municipal Commissioner passed an order dated 24 November 2008 whereby it was it was held additional rooms with attached toilets and construction of mezzanine floor on the 3rd floor was unauthorized and the same are required to be demolished.

  9. Respondent No. 5 being aggrieved by this order of the Municipal Commissioner preferred an Appeal before the Hon'ble Chief Minister under section 47 of the M.R.& T.P. Act. It is the case of the petitioners that the Appeal was filed only in respect of the mezzanine floor which the Petitioners say was clear from the reading of the memo of appeal and the grounds as raised in the appeal which contained no grounds in respect of additional rooms and toilets. The petitioners aver that the Appeal preferred by respondent No. 5 was only on the limited aspect of re-consideration of the three documents so as to ascertain the existence of the mezzanine floors and that the only issue as agitated was the mezzanine floor.

  10. On this Appeal the Hon'ble Chief Minister passed an order dated 29th June 2009. The Hon'ble Chief Minister noting the three documents and the case of respondent no 5 in respect of the mezzanine floor held that the appeal was accepted and the impugned order of the Municipal Commissioner dated 24th November 2008 was set aside and directed that the Municipal Commissioner shall re-consider the documents submitted by the respondent No. 5 regarding existence of mezzanine floor, before 15th August 1997 and process the regularization of mezzanine floor as per revised Development Control Regulations No. 38 (6) and take a decision within two months thereof. The entire controversy in the petition revolves around the fact whether the Hon'ble Chief Minister by this order has at all set aside Municipal Commissioner's order dated 24 November 2008 upholding demolition qua the additional rooms with attached toilets being unauthorized.

  11. In pursuance of the said orders passed by the Hon'ble Chief Minister dated 29 June 2009 the Municipal Commissioner heard the parties and passed a reasoned order dated 22 October 2009 holding that the documents submitted by the respondent No. 5 before the Hon'ble Chief Minister were not adequate to prove the authenticity of the existence of the mezzanine floor on the third floor prior to 15 August 1997 and the same cannot be regularized as per revised Development Control Regulations.

  12. Against the said order dated 22nd October 2009 of the Commissioner the respondent No. 5 again approached the Hon'ble Chief Minister in an Appeal under section 47 of the M.R. & T.P. Act. The petitioners have contended that despite the grievance of the petitioners that they were not served with copy of the Appeal, the Hon'ble Chief Minister proceeded with the hearing and passed an order dated 15 July 2010 allowing the appeal and once again remanding the matter back to the Municipal Commissioner for re-consideration of the documents.

  13. The Petitioners therefore being aggrieved by the orders dated 15 July 2010 passed by the Hon'ble Chief Minister of repetitive interference and the third successive remand to the Municipal Commissioner approached this Court in writ petition No. 1511 of 2010, inter alia seeking quashing of the said order of the Hon'ble Chief Minister as also sought an effective implementation of the demolition notice issued under section 53 (1) of the M.R.& T.P. Act dated 18th March 2004. By an order dated...

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