Suresh Estate P.Ltd.& Ors vs Municipal Corp.Of Greater Mumbai & Ors

(Protection) Act, 1986 and Rule 5(3)(d) of the

Environment (Protection) Rules, 1986, declaring coastal

stretches as Coastal Regulation Zone (CRZ) and

regulating activities in the said zone, as a result of which

the plot belonging to the petitioners falls within the CRZ

II. The petitioners submitted the plans to develop the

land in question by constructing a luxury hotel in terms

of D.C. Rules of 1967 on December 26, 2005. According to

them, they were entitled to additional FSI of 3.73 times

the FSI in addition to 1.33 FSI allowable on the said plot.

It was the case of the petitioners that on December 31,

2005, the Municipal Corporation submitted a proposal to

the Principal Secretary, Urban Development Department,

Government of Maharashtra recommending, inter alia, to

grant additional FSI as prayed for by the petitioners. On

a clarification sought by the State Government from

Ministry of Environment and Forests, the Union of India

informed the Principal Secretary, Urban Development 5 Department, Government of Maharashtra, that the D.C.

Rules as existed on February 19, 1991 would apply to the

areas falling within the CRZ Notification and not the

Draft Regulations of 1989. Incidentally, it may be

mentioned that the Draft Regulations of 1989 came into

force on February 20, 1991. On February 21, 2007 the

Ministry of Environment and Forests granted

environmental clearance to the petitioners for

construction of a residential hotel and commercial project

subject to the terms and conditions set out therein. The

case of the petitioners was that the planning authority did

not communicate its decision to them as to whether the

permission sought for was granted or refused within 60

days from the date of receipt of the application and,

therefore, they were entitled to a declaration that the

permission was deemed to have been granted in terms of

Section 45(5) of the M.R.T.P. Act. In the alternative, it

was their case that in terms of the amended D.C. Rules of

1967, the Competent Authority, with the previous 6 approval of the Government, had authority to permit the

person who had applied for permission to exceed floor

space indices in respect of buildings of educational and

medical relief institutions as well as Government and

semi-Government offices and luxury hotels and as the Taj

Mahal, Oberoi, Sea Rock, President, Ambassador

amongst other hotels were granted benefit of additional

FSI under Rule 10(2) of D.C. Rules, 1967, they were also

entitled to additional FSI of 3.73 than the permissible FSI

of 1.33 available under the relevant Rules. Under the

circumstances the petitioners invoked extra ordinary

jurisdiction of the High Court of Judicature at Bombay

under Article 226 of the Constitution by filing Writ

Petition No. 1627 of 2007 and prayed (1) to declare that

the application submitted by them on December 26, 2005

to the Municipal Corporation of Greater Mumbai to give

permission to develop the land in question stands

granted in view of Section 45(5) of the Maharashtra

Regional and Town Planning Act, 1966, (2) in the 7 alternative to direct the respondents to grant forthwith

their application for permission to develop land referred

to above with additional FSI of 3.73 times the FSI

permissible under Rule 10(2) of the D.C. Rules, 1967 and

(3) to direct the respondents to allow them to proceed

with the development of their plot mentioned above for

construction of luxury hotel by utilization of additional

FSI of 3.73 times the FSI permissible on the said plot as

per D.C. Rules, 1967.

3. The High Court, by judgment dated August 13, 2007,

refused to grant the reliefs claimed by the petitioners, but

directed the Government to take a decision on the

application filed by the petitioners within 6 weeks from

the date of order and communicate the order so passed to

them. Feeling aggrieved the petitioners had filed the

above numbered appeal before this Court.

4. This Court, by judgment dated December 14, 2007, held

(1) that the D.C. Rules of 1967 would be applicable to the 8 facts of the case, (2) the petitioners were entitled to use

the plot in question for construction of a hotel, (3) the

petitioners would be entitled to be granted more FSI than

1.33 in view of the norms set out in D.C. Rules of 1967, (4)

the petitioners were not entitled to a declaration that the

permission applied for was deemed to have been granted

to them as the planning authority had failed to indicate

its decision within 60 days from the date of receipt of the

application, and (5) the respondents cannot be directed to

grant the permission to develop their plot with

demanded FSI but the respondent-State should be

directed to exercise discretion vested in it under Rule 10

(2) of the D.C. Rules, 1967 after taking into consideration

the relevant material including the fact that other hotels

were in past granted additional FSI.

5. In view of abovereferredto conclusions the appeal was

partly allowed and the State Government was directed to

take a decision on the application submitted by the

petitioners seeking permission to develop their plot on 9 the basis that the provisions of D.C. Rules, 1967 were

applicable and decide the application submitted by the

petitioners in the light of recommendations made by the

Competent Authority as well as the fact that other hotels,

as pointed out by the petitioners, were also granted more

FSI than 1.33 permissible under Rule 10(1) of the D.C.

Rules, 1967.

6. The petitioners have claimed that they made an

application on December 17, 2007 to the respondent Nos.

4 and 5 to pass necessary orders in the light of the

directions given by this Court in the above numbered

appeal. By letter dated April 22, 2008, the respondent No.

5 informed the petitioners that the respondent No. 4, i.e.,

the Maharashtra Government, had approved additional

FSI of 3.67 on the net plot area subject to payment of

premium at 25% for first 100% additional FSI, 50% for

second 100% additional FSI and 100% for remaining

additional FSI. According to the petitioners, the

respondent No. 4 asked the petitioners to pay the 10 premium to the Government as well as to the Municipal

Corporation of Greater Mumbai and informed that on

payment of the amount of premium, the order for grant

of additional FSI would be communicated to Municipal

Corporation of Greater Mumbai. The assertion made by

the petitioners is that they are entitled to FSI of 6.29 on

gross plot area as per Rule 10(2) of D.C. Rules, 1967, but

the respondents have approved additional FSI of 3.67

times of net plot area, which is contrary to the directions

issued by this Court in the above numbered appeal. The

petitioners contend that as the other hotels were granted

additional FSI over and above the FSI of 1.33 permissible

under the Rules, the decision to grant additional FSI of

3.67 on the net plot area is in breach of the directions

issued by this Court. What is claimed by the petitioners

is that the petitioners are not liable to pay any premium

at all as other hotels were granted additional FSI without

payment of premium to the Government and, therefore,

the respondents should be hauled up for willful 11 disobedience of the directions issued by this Court. In the

alternative, it is claimed by the petitioners that even if the

premium is to be calculated, the same works out at Rs.28

crores as against Rs.128 crores, which is calculated by the

respondents and, therefore, by imposing premium the

respondents have brushed aside the directions issued by

this Court for which appropriate action should be taken

against them. Under the circumstances the petitioners

have filed the instant contempt application and claimed

reliefs to which reference is made earlier.

7. On service of notice the respondents have filed counter

affidavit controverting the averments made in the

contempt application. In the reply it is claimed that this

Court had left the question of quantum of FSI to be

granted to the discretion of the Government and after

taking into consideration the relevant factors, the decision

has been taken to grant additional FSI of 3.67 to the

petitioners, which cannot be said to be contrary to the

directions issued by this Court. It is mentioned in the 12 reply that the base FSI of 3.5 was taken as far as hotels

Hilton Tower, Oberoi, President, etc. were concerned, as

those hotels were located in Backbay Reclamation Area of

`A' Ward and in addition to the base FSI, Hilton Tower

was granted additional FSI of 1.95, Oberoi Hotel was

granted additiona FSI of 1.00 and Hotel President was

granted additional FSI of 0.82 whereas in the case of Taj

Mahal Hotel the base FSI of 2.45 was taken because it was

not located in the Backbay Reclamation Area and the said

hotel was granted additional FSI of 2.28 and, therefore,

the claim of the petitioners that on the basis of additional

FSI granted to the abovenamed hotels, the petitioners

were entitled to FSI of 6.29 has no basis at all. The

respondents have stressed in the reply that in Civil

Appeal No. 5948 of 2007, decided by this Court on

December 14, 2007, there was no specific mandamus

issued directing the respondents to grant FSI of 6.29 to

the petitioners nor specific prohibition was issued not to

charge premium on the additional FSI and, therefore, the 13 order dated April 22, 2008, passed by the Government of

Maharashtra, should not be treated as contemptuous at

all. According to the respondents the Chief Engineer

(Development Plan), MCGM had requested the

Government by letter dated December 31, 2005 to grant

additional FSI, but neither MCGM nor Municipal

Commissioner had recommended grant of additional FSI

of 3.73 times of permissible FSI of 1.33 and, therefore, the

present contempt application should be rejected. In

paragraph 11 of the reply the respondents have tried to

justify the premium of Rs.128.06 crores sought to be

charged from the petitioners and pointed out that the

hotel of the petitioners, which is situated in `C' Ward as

per D.C. Rules, 1991, is not entitled to more FSI than

granted by the Government of Maharashtra vide order

dated April 22, 2008. By filing the reply the respondents

have prayed to dismiss the contempt application with

exemplary costs.

14

8. The petitioners have filed rejoinder affidavit reiterating

what is averred in the contempt application and,

therefore, this Court does not deem it fit to deal with the

same in detail.

9. This Court has heard the learned counsel for the parties

at length and considered the documents forming part of

the instant application.

10. As is clear from the directions issued by this Court vide

judgment dated December 14, 2007, rendered in Civil

Appeal No. 5948 of 2007, the prayer made by the

petitioners to direct the respondents to grant FSI of 6.29

was specifically refused and the State Government was

directed to decide the application submitted by the

petitioners for sanction of the plans in the light of the

provisions of D.C. Rules, 1967. As pointed out by the

respondents the base FSI was 3.5 in cases of Hotels Hilton

Tower, Oberoi and President as those hotels were located

in Backbay Reclamation Area of `A' Ward and Hilton 15 Towers was granted additional FSI of 1.95, Oberoi was

granted additional FSI of 1.00 and Hotel President was

granted additional FSI of 0.82. It is averred in the reply

that as far as Taj Mahal Hotel is concerned the same was

not located in the Backbay Reclamation Area and,

therefore, base FSI was taken to be 2.45 and additional

FSI of 2.28 was granted. Under the circumstances it

becomes evident that the additional FSI of 3.67 granted to

the petitioners is much more than the additional FSI

granted to the other hotels. As explained by the

respondents the Chief Engineer (Development Plan),

MCGM had requested the Government vide letter dated

December 31, 2005 to grant additional FSI, as demanded

by the petitioners, but neither MCGM nor Municipal

Commissioner had recommended for grant of additional

FSI of 3.73 times of permissible FSI of 1.33. Moreover, it

is stated by the respondent in paragraph 10 of the reply

that the decision to grant additional FSI of 3.67 over and

above the basic permissible 1.33 comes to 93.06%. On the 16 facts and in the circumstances of the case it is difficult for

this Court to conclude that the decision to grant total FSI

of 5.00 to the proposed hotel of the petitioners is contrary

to the directions issued by this Court.

11. By this Court's judgment the State Government was

directed to take a decision on the application submitted

by the petitioners to develop their plot on the basis of the

provisions of D.C. Rules, 1967 with the discretion

available to the Competent Authority under Rule 10(2) of

the said Rules.

In paragraph 15 of the judgment, it was directed: -

"In the light of the recommendations made by the Competent Authority as well as the fact that other hotels as pointed out by the appellants were also granted more FSI than 1.33 permissible under Rule 10(1) of the D.C. Rules, 1967."

It was urged by the petitioners that the order passed by

the authority, calling upon the petitioners to pay premium of

Rs.128.06 crores, is contrary to what had been directed by this 17 Court. As regards premium payable by the applicants/

petitioners, it was not a matter in issue, nor it was argued. But

the direction was to consider application in accordance with

D.C. Rules, 1967. According to the Petitioners, if 1967 Rules are

applicable, no premium would be payable by the petitioners. It

is also argued that the imposition of heavy premium was done

purposely to deny the benefits of the judgment passed by this

Court. As it is a matter which came into issue subsequent to

judgment passed by this Court, we leave the matter open to be

agitated in other appropriate forum and we make it clear that

we do not express anything on merit regarding the issue

whether the petitioners are liable to pay any premium or not.

12. The above discussion makes it very clear that there is no

willful disobedience of any of the directions issued by

this Court while disposing of the appeal filed by the

petitioners. This Court does not find that the respondents

are guilty of willful disobedience to the judgment

rendered by this Court. As no case for initiating

proceedings for civil contempt is made out by the 18 petitioners against the respondents, the instant

application cannot be entertained and is liable to be

dismissed.

13. For the foregoing reasons, the contempt application fails

and is dismissed. Having regard to the facts of the case

there shall be no order as to costs.

...................................CJI [K.G. Balakrishnan]

.....................................J. [P. Sathasivam]

.....................................J. [J.M. Panchal]

New Delhi;

December 16, 2008