Supreme Court of India
ESHA EKTA APARTMENTS CO-OPERATIVE HOUSING SOCIETY LIMITED AND OTHERSversusMUNICIPAL CORPORATION OF MUMBAI AND OTHERS
- Citation
- 2013 INSC 128
- Decided
- 27 February 2013
- Disposal
- Dismissed
- Bench
- G S SINGHVI
Holding
Unauthorised construction cannot be regularised under the 1966 Planning Act, the 1888 Municipal Act, the 1963 Ownership Flats Act, or the 1991 Development Control Regulations, and flat buyers must seek remedy against the developers, not a mandamus for regularisation.
Summary
The case involved several cooperative housing societies that had purchased flats in a development where the builders constructed additional floors and exceeded the permitted Floor Space Index (FSI) in violation of the sanctioned plan and municipal regulations. The societies sought a mandamus directing the Mumbai Municipal Corporation to regularise the illegal construction, arguing that they were unaware of the violations and that demolition would deprive them of shelter. The Supreme Court examined the applicability of the Maharashtra Regional and Town Planning Act, 1966, the Mumbai Municipal Corporation Act, 1888, the Maharashtra Ownership Flats Act, 1963, and the Development Control Regulations of 1991, concluding that none of these statutes mandate regularisation of unauthorised construction. It held that the flat buyers were aware of the illegal nature of the works and could only seek remedy against the developers, not a court order for regularisation. Consequently, the Court dismissed the appeals and upheld the orders refusing regularisation, directing the Corporation to proceed with demolition and allowing the buyers to pursue damages against the builders.
Issues considered
- The legality and sustainability of the Deputy Chief Engineer and Appellate Authority's orders refusing regularisation of the illegal construction.
- Whether flat buyers, who entered into purchase agreements before construction, can claim ignorance of the illegal works and be exempt from penalty.
- Whether the 1991 Development Control Regulations or the 2011 circular can be invoked to regularise the additional FSI by imposing a penalty.
- Whether Article 142 of the Constitution can be used to compel regularisation in the absence of statutory provision.
Legislation cited
- Development Control Regulations for Greater Mumbai, 1991
- Development Control Rules for Greater Mumbai, 1967
- Environment (Protection) Act, 1986s. 3
- Maharashtra Ownership Flats (Regulation of Construction, Sale, Management and Transfer) Act, 1963s. 13, s. 2(c), s. 3(2), s. 4, s. 7(2)
- Maharashtra Regional and Town Planning Act, 1966s. 44, s. 45, s. 47, s. 52, s. 53, s. 54, s. 55, s. 56, s. 57
- Mumbai Municipal Corporation Act, 1888s. 337, s. 351, s. 354A
- Urban Land (Ceiling and Regulation) Act, 1976s. 22
Subjects
illegal constructionregularisationfloor space indexmunicipal lawurban planningMaharashtra Regional and Town Planning ActMumbai Municipal Corporation ActMaharashtra Ownership Flats Actdevelopment control regulationsCRZ areademolition orderflat buyers
Judgment
[2013] 4 S.C.R. 478
A ESHA EKTA APARTMENTS CO-OPERATIVE HOUSING
SOCIETY LIMITED AND OTHERS
v.
MUNICIPAL CORPORATION OF MUMBAI AND OTHERS
(Civil Appeal No. 7934 of 2012)
B
FEBRUARY 27, 2013
[G.S. SINGHVI AND SUDHANSU JYOTI
MUKHOPADHAYA, JJ.]
C Urban Development - Maharashtra Regional and Town
Planning Act, 1966 - ss.44, 45, 47, 52 to 57 - Illegal and
unauthorized construction made by developers/builders -
Demolition order - Plea of flat buyers for regularization of
construction - Held: By rejecting the prayer for regularization
D of the floors constructed in wanton violation of the sanctioned
plan, the Deputy Chief Engineer of the Mumbai Municipal
Corporation and the Appellate Authority demonstrated their
determination to ensure planned development of the city -
The 1966 Act does not mandate regularization of construction
E made without obtaining the required permission or in violation
thereof - The 1963 Act too does not entitle the flat buyers to
seek a mandamus for regularization of unauthorized/illegal
construction - The 1991 Regulations also cannot be invoked
for regularization of the disputed construction because the
F same were enforced much later - The flat buyers had entered
into agreements with the developers/builders much before
commencement of the construction - They were aware of the
facts and had consciously occupied the flats illegally
constructed by the developers/builders - No case made out
G for directing the respondents to regularize construction made
in violation of the sanctioned plan - No authority
administering municipal laws and other similar laws can
encourage such violation - The Courts are also expected to
refrain from exercising equitable jurisdiction for regularization
H 478
ESHA EKTA APARTMENTS._CHS LIMITED\'. MUN. 479
CORPORATION OF MUMBAI
of illegal and unauthorized constructions - Flat buyers, A
however, free to avail appropriate remedy against the
developers/builders -: Mumbai Municipal Corporatio'n Act,
1888- ss.337, 351 and 354A - Maharashtra Ownership Flats
(Regulation of the. Promotion of Construction, Sale,
Management an~· Transfer) Act, 1963 - ss.2(c), 3(2), 4, 7(2) B
& 13- Development Control Rules for Greater Mumbai, 1967
- Development, Control Regulations for Greater Mumbai,
1991.
Orders were passed by Deputy Chlet Engineer,
Building Proposals (City) of the Mumbai Municipal
c
Corporation and the Appellate Authority refusing to
regularize illeg.al. constructions r~ised· by developers/
builders. Even' though the Planning Authority had not i:.
sanctioned. the plans, the developers/builders had
'' ..,
constructed additional floors and utilized the Floor Space D I
Index (FSI) far in excess of what was permitted by·the I
Mumbai Municipal Corporation Act, 1888 and the I
1:
Development Control Rules.
for Greater Mumbai, 1967.
~
1·
The Municipal Corporation of Mumbai issued notices E I'1:
under Section 351 of the 1888 Act, giving details of the
illegal structures. proposed to be demolished. The
i'
f•'
housing societies concerned submitted their respective
replies. which . were rejected by the Corporation,
:, 'II
I
whereupon they filed Long Cause Suits for quashing the ,,f
F ''I
notices issued under Section 351 of the 1888 Act and the
rejection order passed by the Corporation. They also I'
filed applications for restraining the Corporation from
' l'
l
demolishing the illegal portions of th.e buildings. I l
1 '1
[ j
· The trial Court dismissed ·the applications for G ; ·l
I I
temporary injunction· and further rejected the contention rq
.'
of the members of the housing societies that they had
purchased the flats without knowing. that the same were iii
; l
illegally constructed ·by the ~evelopers/builders.
H
.
480 SUPREME COURT· REPORTS · [2013) 4 S.C.R.
A The app-eals filed by the housing societies and their
members were dismissed by the High Court, and,
therefore the instant appeals. The Supreme Court,
keeping in view that demolition of the illegal and
unauthorized construction would adversely affect the flat
B buyers and their families and that a writ petition filed by
them for regularization of the disputed construction was
pending before the High Court, considered it appropriate
to transfer. the same to this Court
· Various question's · therefore came up ·. for
C consideration before this Court, viz. 1) whether the orders
·passed by the Deputy Chief Engineer and the Appellant
Authority refusing to regularize the illegal constructions
i were .legally sustainable; 2) whether the flat buyers were
I not aware of the facts and should not be penalized for
II D the illegalities committed by the developers/ builders; 3)
whether in· view· of the Development Control Regulations
for Greater,Mumbai, 1991, the Corporation should be
directedJo'regularize the additional FSI by charging
appropriate penalty; .and that 4) whether In ,view of
E Circular. No.CHE/2005/DP/GEN dated. 4.2.2011 (issued by
the Corporation for regularization of the illegal
.,
construction by charging penalty), this Court may
rexerclse power· under Article 142 of the Constitution for
directing regularization of the disputed construction else
F the flat buyers will be deprived of. the only shelter
available to them; ·· · ·
· Dismissing the appeals and the transferred cases,
the Court· · · ·. •· · · ·· · · -
G HELD: 1.1. By rejecting the prayer for regularization
of the floors constructed in wanton violation of the
sanctioned plan, the Deputy Chief Engineer and the
Appellate Authority · have demonstrated. their
determination to ·ensure planned development of the·
H commercial capital of the country and the orders passed
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 481
CORPORATION OF MUMBAI
by them have given a hope to the law abiding citizens A
that someone in the hierarchy of administration will not
allow unscrupulous developers/builders to take law into
their hands and get away with it. [Para 3) (494-D-F]
1.2. The Deputy Chief Engineer had rejected the 8
request made by the architect for exemption of the area
of staircase, lift and lift lobby from FSI by observing that
the same is not in conformity with Clause 35(2)(c) of the
1991 Regulations because the Corporation had decided
the proposal prior to coming into force of those
regulations and the permissible FSI had already been C
exhausted. The Appellate Authority agreed with the
Deputy Chief Engineer that the 1991 Regulations cannot
be invoked for regularization of the disputed
construction because the same were enforced much after
rejection of the amended plans and the plot in question D
is situated in CRZ area. The reasons assigned by the
Deputy Chief Engineer and the Appellate Authority are in
consonance with the law laid down by this Court. The
Appellate Authority had rightly declined to invoke the
1991 Regulations for entertaining the prayer made by the E
architect for regularization of the constructions made in
violation of the sanctioned plan. (Paras 34, 35, 36) [518-
F-H; 519-A-B; 522-E)
Suresh Estates Private Limited v. Municipal Corporation F
of Greater Mumbai (2007) 14 SCC 439: 2007 (13) SCR 882
- relied on.
2. The argument that the flat buyers should not be
penalized for the illegality committed by the lessee and
the developers/builders in raising construction in G
violation of the sanctioned plan has no merit. The flat
buyers had entered into agreements with the developers/
builders much before commencement of the construction.
They were aware of the fact that the revised plans
submitted by the architect had not been approved by the H
482 SUPREME COURT REPORTS [2013] 4 S.C.R.
A Planning Authority and the developers/builders had
foretold them about the consequence of rejection of the
revised plans. Therefore, there is no escape from the
conclusion that the flat buyers had consciously occupied
the flats illegally constructed by the developers/builders.
B In this scenario, the only remedy available to them is to
sue the lessee and the developer/builder for return of the
money and/or for damages and they cannot seek a
direction for regularization of the illegal and unauthorized
construction made by the developers/builders. [Para 37]
c [522-F-H; 523-A-B]
3. An analysis of the provisions of the Maharashtra
Regional and Town Planning Act, 1966 make it clear that
any person who undertakes or carries out development
or changes the use of land without permission of the
D Planning Authority is liable to be punished with
imprisonment. At the same time, the Planning Authority
is empowered to require the owner to restore the land to
its original condition as it existed before the development
work was undertaken. The scheme of these provisions
E do not mandate regularization of construction made
without obtaining the required permission or in violation
thereof. [Para 39] [525-E-G]
4. Circular No. CHE/2005/DP/GEN dated 4.2.2011
F (issued by the Corporation for regularization of illegal
construction by charging penalty) cannot be invoked for
entertaining the prayer for regularization. That circular
only contains the procedure for regularization of
unauthorized works/structures. It neither deals with the
issues relating to entitlement of the applicant to seek
G regularization nor lays down that the Planning Authority
can regularize illegal construction even after dismissal of
the appeal filed under Section 47 of the 1966 Act.
Therefore, the procedure laid down in Circular dated
4.2.2011 is of no avail to the flat buyers. [Para 40] [525-H;
H 526-A-B]
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 483
CORPORATION OF MUMBAI
5. Though the argument that the developers I A
builders I promoters are responsible for the illegal
construction finds support from the provisions of the
Maharashtra Ownership Flats (Regulation of the
Promotion of Construction, Sale, Management and
Transfer) Act, 1963, but that does not help the housing B
societies and their members because there is no
provision under that Act for condonation of illegal/
unauthorized construction by the developers/builders
and promoters or regularization of such construction. The
1963 Act obligates the promoter to obtain sanctions and c
approvals from the concerned authority and disclose the
same to the flat buyers. The Act also provides for
imposition of penalty on the promoters. However, the
provisions contained therein do not entitle the flat buyers
to seek a mandamus for regularization of the
0
unauthorized/illegal construction. [Paras 41, 44) [526-C-
D; 532-H; 533-A]
Jayantilal Investments v. Madhuvihar Cooperative
Housing Society (2007) 9 SCC 220: 2007 (1) SCR 677 -
relied on. E
6. The petitioners in the transferred case have failed
to make out a case for directing the respondents to
regularize the construction made in violation of the
sanctioned plan. No authority administering municipal
laws and other similar laws can encourage violation of F
the sanctioned plan. The Courts are also expected to
refrain from exercising equitable jurisdiction for
regularization of illegal and unauthorized constructions
else it would encourage violators of the planning laws
and destroy the very idea and concept of planned G
development of urban as well as rural areas. [Para 45]
[533-B-D]
Royal Paradise Hotel (P) Ltd. v. State of Haryana and
Ors. (2006) 7 SCC 597: 2006 (5) Suppl. SCR 396 - held
inapplicable. H
484 SUPREME COURT REPORTS [2013) 4 S.C.R.
A Friends Colony Development Committee v. State of
Orissa (2004) 8 SCC 733: 2004 (5) Suppl. SCR 818; Shanti
Sports Club v. Union of India (2009) 15 SCC 705: 2009 (13)
SCR 710; Priyanka Estates International Pvt. Ltd. v. State of
Assam (2010) 2 SCC 27: 2009 (16) SCR 80 and Dipak
B Kumar Mukherjee v. Kolkata Municipal Corporation and
others (2012) 10 SCALE 29 - referred to.
7. There is no impediment in the implementation of
notices issued by the Corporation under Section 351 of
the 1888 Act and order passed by the competent
C authority. The Corporation is expected to take action in
the matter at the earliest. This Court also directs that the
State Government and its functionaries/officers as also
the officers/employees of the Corporation shall not put
any hurdle or obstacle in the implementation of notices
D issued under Section 351 of the 1888 Act. The flat buyers
shall be free to avail appropriate remedy against the
developers/builders. [Paras 46, 47 and 48] [533-E-G]
Case Law Reference:
E 2004 (5) Suppl. SCR 818 referred to Para 1
2006 (5) Suppl. SCR 396 relied on Para 1, 45
2009 (13) SCR 710 referred to Para 1
F 2009 (16) SCR 80 referred to Para 1
(2012) 10 SCALE 29 referred to Para 1
2007 (13) SCR 882 relied on Para 35
2007 (1) SCR 677 relied on Para 43
G
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7934 of 2012.
From the Judgment & Order dated 24.08.2011 of the High
Court of Judicature at Bombay in Appeal from Order No. 1124
H of 2010.
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 485
CORPORATION OF MUMBAI
WITH A
C.A. Nos. 7935, 7936, 7937 & 7938 of 2012
T.C. (C) No. 55 of 2012.
G.E. Vahanvati, AG, Dr. A.M. Singhvi, Ravi Shankar B
Prasad, Pallav Shishodia, Dushyant Dave, C.U. Singh, Raju
Ramachandran, Abhimanyu Bhandari, Aakansha Munjhal,
Harish Pandey, Naveen Kumar, S. Sukumararr, R.A.
Malandkar, J.J. Xavier, Anand Sukumar, Bhupesh Kumar
Pathak, C. Mukund, Pankaj Jain, Saravana Raja P.V., Kavita C
Wadia, Chitesh, Kavin Gulati, Rashmi Singh, Kumar Kartikay,
Vasu Sharma, Pushpinder Singh for the appearing parties.
The Judgment of the Court was delivered by
G.S. SINGHVI, J. 1. In last five decades, the provisions D
contained in various municipal laws for planned development
of the areas to which such laws are applicable have been
violated with impunity in all the cities, big or small, and those
entrusted with the task of ensuring implementation of the master
plan, etc., have miserably failed to perform their duties. It is E
highly regrettable that this is so despite the fact that this Court
has, keeping in view the imperatives of preserving the ecology
and environment of the area and protecting the rights of the
citizens, repeatedly cautioned the concerned authorities against
arbitrary regularization of illegal constructions by way of F
compounding and otherwise. In Friends Colony Development
Committee v. State of Orissa (2004) 8 SCC 733, this Court
examined the correctness of an order passed by the Orissa
High Court negating the appellant's right to be heard in a
petition filed by the builder who had raised the building in G
violation of the sanctioned plan. While upholding the appellant's
plea, the two-Judge Bench observed:
" ......... 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 H
486 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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
B is often thrown out of gear. Unwary purchasers in search
of roof over their heads and purchasing flats/apartments
from builders, find themselves having fallen prey and
become victims to the designs of unscrupulous builders.
The builder conveniently walks away having pocketed the
c money leaving behind the unfortunate occupants to face the
music in the event of unauthorised constructions being
detected or exposed and threatened with demolition.
Though the local authorities have the staff consisting of
engineers and inspectors whose duty is to keep a watch
on building activities and to promptly stop the illegal
D
constructions or deviations coming up, they often fail in
discharging their duty. Either they don't act or do not act
promptly or do connive at such activities apparently for
illegitimate considerations. If such activities are to stop
some stringent actions are required to be taken by
E ruthlessly demolishing the illegal constructions and non-
compoundable deviations. The unwary purchasers who
shall be the sufferers must be adequately compensated by
the builder. The arms of the law must stretch to catch hold
of such unscrupulous builders ............ .
F
The conduct of the builder in the present case deserves
to be noticed. He knew it fully well what was the
permissible construction as per the sanctioned building
plans and yet he not only constructed additional built-up
G area on each floor but also added an additional fifth floor
on the building, and such a floor was totally unauthorised.
In spite of the disputes and litigation pending he parted with
his interest in the property and inducted occupants on all
the floors, including the additional one. Probably he was
H under the impression that he would be able to either
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 487
CORPORATION OF MUMBAI [G.S. SINGHVI, J.]
escape the clutches of the law or twist the arm of the law A
by some manipulation. This impression must prove to be
wrong.
In all developed and developing countries there is
emphasis on planned development of cities which is B
sought to be achieved by zoning, planning and regulating
building construction activity. Such planning, though highly
complex, is a matter based on scientific research, study
and experience leading to rationalisation of laws by way
of legislative enactments and rules and regulations framed c
thereunder. Zoning and planning do result in hardship to
individual property owners as their freedom to use their
property in the way they like, is subjected to regulation and
control. The private owners are to some extent prevented
from making the most profitable use of their property. But 0
for this reason alone the controlling regulations cannot be
termed as arbitrary or unreasonable. The private interest
stands subordinated to the public good. It can be stated
in a way that power to plan development of city and to
regulate the building activity therein flows from the police
E
power of the State. The exercise of such governmental
power is justified on account of it being reasonably
necessary for the public health, safety, morals or general
welfare and ecological considerations; though an
unnecessary or unreasonable intermeddling with the
private ownership of the property may not be justified. F
The municipal laws regulating the building construction
activity may provide for regulations as to floor area. the
number of floors. the extent of height rise and the nature
of use to which a built-up property may be subjected in any G
particular area. The individuals as property owners have
to pay some price for securing peace. good order. dignity,
protection and comfort and safety of the community. Not
only filth. stench and unhealthy places have to be
eliminated, but the layout helps in achieving family values. H
488 SUPREME COURT REPORTS [2013] 4 S.C.R.
A youth values. seclusion and clean air to make the locality
a better place to live. Building regulations also help in
reduction or elimination of fire hazards, the avoidance of
traffic dangers and the lessening of prevention of traffic
congestion in the streets and roads. Zoning and building
B regulations are also legitimised from the point of view of
the control of community development. the prevention of
overcrowding of land. the furnishing of recreational
facilities like parks and playgrounds and the availability of
adequate water. sewerage and other governmental or
c utility services.
Structural and lot area regulations authorise the municipal
authorities to regulate and restrict the height. number of
storeys and other structures; the percentage of a plot that
may be occupied; the size of yards. courts and open
D spaces: the density of population: and the location and use
of buildings and structures. All these have in our view and
do achieve the larger purpose of the public health. safety
or general welfare. So are front setback provisions.
average alignments and structural alterations. Any violation
E of zoning and regulation laws takes the toll in terms of
public welfare and convenience being sacrificed apart from
the risk, inconvenience and hardship which is posed to the
occupants of the building.
F Though the municipal laws permit deviations from
sanctioned constructions being regularised by
compounding but that is by way of exception. Unfortunately,
the exception, with the lapse of time and frequent exercise
of the discretionary power conferred by such exception,
has become the rule. Only such deviations deserve to be
G
condoned as are bona fide or are attributable to some
misunderstanding or are such deviations as where the
benefit gained by demolition would be far less than the
disadvantage suffered. Other than these, deliberate
deviations do not deserve to be condoned and
H
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 489
CORPORATION OF MUMBAI [G.S. SINGHVI, J.]
compounded. Compounding of deviations ought to be kept A
at a bare minimum. The cases of professional builders
stand on a 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 safely be assumed to be deliberate and done with the B
intention of earning profits and hence deserve to be dealt
with sternly so as to act as a deterrent for future. It is
common knowledge that the builders enter into underhand
dealings. Be that as it may, the State Governments should
think of levying' heavy penalties on such builders and c
therefrom develop a welfare fund which can be utilised for
compensating and rehabilitating such innocent or unwary
buyers who are displaced on account of demolition of
illegal constructions."
(emphasis supplied) D
In Royal Paradise Hotel (P) Ltd. v. State of Haryana and Ors.
(2006) 7 SCC 597, this Court noted that the construction had
been made in the teeth of notices issued for stopping the
unauthorized construction and held that no authority E
administering municipal laws can regularize the constructions
made in violation of the Act. Some of the observations made
in that judgment are extracted below:
"Whatever it be, the fact remains that the construction was
F
made in the teeth of the notices and the directions to stop
the unauthorized construction. Thus, the predecessor of the
appellant put up the offending construction in a controlled
area in defiance of the provisions of law preventing such
a construction and in spite of notices and orders to stop
the construction activity. The constructions put up are thus G
illegal and unauthorized and put up in defiance of law. The
appellant is only an assignee from the person who put up
such a construction and his present attempt is to defeat
the statute and the statutory scheme of protecting the sides
of highways in the interest of general public and moving H
490 SUPREME COURT REPORTS [2013] 4 S.C.R.
A traffic on such highways. Therefore, this is a fit case for
refusal of interference by this Court against the decision
declining the regularization sought for by the appellant.
Such violations cannot be compounded and the prayer of
the appellant was rightly rejected by the authorities and the
B High Court was correct in dismissing the Writ Petition filed
by. the appellant. It is time that the message goes aboard
that those who defy the Jaw would not be permitted to reap
the benefit of their defiance of law and it is the duty of High
Courts to ensure that such definers of law are not
c rewarded. The High Court was therefore fully justified in
refusing to interfere in the matter. The High Court was
rightly conscious of its duty to ensure that violators of Jaw
do not get away with it.
We also find no merit in the argument that regularization
D of the acts of violation of the provisions of the Act ought to
have been permitted. No authority administering municipal
laws and other laws like the Act involved here, can
encourage such violations. Even otherwise, compounding
is not to be done when the violations are deliberate,
E designed, reckless or motivated. Marginal or insignificant
accidental violations unconsciously made after trying to
comply with all the requirements of the law can alone
qualify for regularization which is not the rule, but a rare
exception. The authorities and the High Court were hence
F right in refusing the request of the appellant."
The aforesaid observations found their echo in Shanti
Sports Club v. Union of India (2009) 15 SCC 705 in the
following words:
G "In the last four decades, almost all cities, big or small,
have seen unplanned growth. In the 21st century, the
menace of illegal and unauthorised constructions and
encroachments has acquired monstrous proportions and
everyone has been paying heavy price for the same.
H Economically affluent people and those having support of
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 491
CORPORATION OF MUMBAI [G.S. SINGHVI, J.]
the political and executive apparatus of the State have A
constructed buildings, commercial complexes, multiplexes,
malls, etc. in blatant violation of the municipal and town
planning laws, master plans, zonal development plans and
even the sanctioned building plans. In most of the cases
of illegal or unauthorised constructions, the officers of the B
municipal and other regulatory bodies turn blind eye either
due to the influence of higher functionaries of the State or
other extraneous reasons. Those who construct buildings
in violation of the relevant statutory provisions, master plan,
etc. and those who directly or indirectly abet such violations c
are totally unmindful of the grave consequences of their
actions and/or omissions on the present as well as future
generations of the country which will be forced to live in
unplanned cities and urban areas. The people belonging
to this class do not realise that the constructions made in
D
violation of the relevant laws, master plan or zonal
development plan or sanctioned building plan or the
building is used for a purpose other than the one specified
in the relevant statute or the master plan, etc., sudh
constructions put unbearable burden on the public facilities/
amenities like water, electricity, sewerage, etc. apart from E
creating chaos on the roads. The pollution caused due to
traffic congestion affects the health of the road users. The
pedestrians and people belonging to weaker sections of
the society, who cannot afford the luxury of air-conditioned
cars, are the worst victims of pollution. They suffer from skin F
diseases of different types, asthma, allergies and even
more dreaded diseases like cancer. It can only be a
matter of imagination how much the Government has to
spend on the treatment of such persons and also for
controlling pollution and adverse impact on the environment G
due to traffic congestion on the roads and chaotic
conditions created due to illegal and unauthorised
constructions. This Court has, from time to time, taken
cognizance of buildings constructed in violation of municipal
and other laws and emphasised that no compromise H
492 SUPREME COURT REPORTS [2013] 4 S.C.R.
A should be made with the town planning scheme and no
relief should be given to the violator of the town planning
scheme, etc. on the ground that he has spent substantial
amount on construction of the buildings, etc.
Unfortunately, despite repeated judgments by this Court
B
and the High Courts, the builders and other affluent people
engaged in the construction activities, who have, over the
years shown scant respect for regulatory mechanism
envisaged in the municipal and other similar laws, as also
the master plans, zonal development plans, sanctioned
c plans, etc., have received encouragement and support
from the State apparatus. As and when the Courts have
passed orders or the officers of local and other bodies
have taken action for ensuring rigorous compliance with
laws relating to planned development of the cities and
D urban areas and issued directions for demolition of the
illegal/unauthorised constructions, those in power have
come forward to protect the wrongdoers either by issuing
administrative orders or enacting laws for regularisation of
illegal and unauthorised constructions in the name of
E compassion and hardship. Such actions have done
irreparable harm to the concept of planned development
of the cities and urban areas. It is high time that the
executive and political apparatus of the State take serious
view of the menace of illegal and unauthorised
F constructions and stop their support to the lobbies of
affluent class of builders and others, else even the rural
areas of the country will soon witness similar chaotic
conditions."
In Priyanka Estates International Pvt. Ltd. v. State of
G Assam (2010) 2 SCC 27, this Court declined the appellant's
prayer for directing the respondents to regularize the illegal
construction and observed:
"It is a matter of common knowledge that illegal and
H unauthorised constructions beyond the sanctioned plans
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 493
CORPORATION OF MUMBAI [G.S. SINGH.VI, J.]
are on rise, may be due to paucity of land in big cities. A
Such activities are required to be dealt with by firm hands
otherwise builders/colonisers would continue to build or
construct beyond the sanctioned and approved plans and
would still go scot-free. Ultimately, it is the flat owners who
fall prey to .such activities as the ultimate desire of a B
common man is to have a shelter of his own. Such unlawful
constructions are definitely against the public interest and
hazardous to ·\he safety of occupiers and residents of
multistoreyed byildings. To some extent both parties can
be said to be eq4ally responsible for this. Still the greater c
loss would be of those flat owners whose flats are to be
demolished as conwared to the builder."
A somewhat simila{ question was recently considered in
Dipak Kumar Mukherjee v. Kolkata Municipal Corporation
and others (2012) 10 SCALE 29. While setting aside the order D
of the Division Bench of the Calcutta High Court, this Court
referred to the provisions of the Kolkata Municipal Corporation ;.
Act, 1980 in the context of c0t1struction of additional floors in a
residential building in violatib_n of the sanctioned plan and
observed: E
"What needs to be emphasised is that illegal and
unauthorised constructions of ~uildings and other structure
not only violate the municipal laws and the concept of
planned development of the particular area but also affect · F
various fundamental and constitutional rights of other
persons. The common man feels cheated when he finds
that those making illegal and unauthorised constructions
are supported by the people entrusted with the duty of
preparing and executing master plan/development plan/ G
zonal plan. The reports of demolition of hutments and jhuggi
jhopris belonging to poor and disadvantaged section of the
society frequently appear in the print media but one seldom
gets to read about demolition of illegally/unauthorisedly
constructed multi-storied structure raised by 'ec;:onomically
H
494 SUPREME COURT REPORTS [2013] 4 S.C.R.
A affluent people. The failure of the State apparatus to take
prompt action to demolish such illegal constructions has
convinced the citizens that planning laws are enforced only
against poor and all compromises are made by the State
machinery when it is required to deal with those who have
B money power or unholy nexus with the power corridors."
2. We have prefaced disposal of these matters by taking
cognizance of the observations made in the aforementioned
judgments because the main question which arises for our
C consideration is whether the orders passed by Deputy Chief
Engineer, Building Proposals (City) of the Mumbai Municipal
Corporation (hereinafter referred to as 'the Deputy Chief
Engineer') and the Appellate Authority refusing to regularize the
illegal constructions made on Plot No.9, Scheme 58, Worli,
Mumbai are legally sustainable.
D
3. At the outset, we would like to observe that by rejecting
the prayer for regularization of the floors constructed in wanton
violation of the sanctioned plan, the Deputy Chief Engineer and
the Appellate Authority have demonstrated their determination
E to ensure planned development of the commercial capital of the
country and the orders passed by them have given a hope to
the law abiding citizens that someone in the hierarchy of
administration will not allow unscrupulous developers/builders
to take law into their hands and get away with it.
F
4. The Municipal Corporation of Mumbai (for short, 'the
Corporation') leased out the plot in question, of which land use
was shown in the development plan as 'General Industrial' to
M/s. Pure Drinks (hereinafter referred to as, 'the lessee') in
January, 1962. The lessee constructed a factory and started
G manufacturing cold drinks under the brand name 'Campa Cola'.
After about 16 years, the lessee engaged an architect for
utilizing the land for construction of residential buildings. The
architect made an application under Section 337 of the Mumbai
Municipal Corporation Act, 1888 (for short, 'the 1888 Act') for
H sanction of plans of the proposed residential buildings. The
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 495
CORPORATION OF MUMBAI [G.S. SINGHVI, J.)
same was rejected by the Planning Authority vide order dated A
31.7.1980 on the ground that the required NOCs had not been
obtained and the Competent Authority had not given exemption
under the Urban Land (Ceiling and Regulation) Act, 1976.
Another application made by the architect was rejected by the
Planning Authority on similar grounds. B
5. In view of the above development, the lessee made an
application to the Corporation for change of land use from
'General Industrial' to 'Residential'. The latter forwarded the
same to the State Government along with a proposal for
modification of the development plan of the area. The State C
Government accepted the proposal of the Corporation and
passed an order dated 31.12.1980 under Section 37(2) of the
Maharashtra Regional and Town Planning Act, 1966 (for short,
'the 1966 Act') in respect of 13049 sq. meters leaving the
balance 4856 sq. meters for industrial use. This was subject D
to the condition that development shall be as per the
Development Control Rules for Greater Mumbai, 1967 (for
short, 'the D.C. Rules') and other relevant statutory provisions.
Thereafter, the architect engaged by the lessee submitted
revised plans for construction of residential buildings. The E
Planning Authority granted approval on 8.6.1981 for
construction 9f 6 buildings comprising basement, ground and
5 upper floors. The commencement certificate was issued on
10.6.1981. On 27 .6.1981, the Additional Collector and
Competent Authority granted permission under Section 22 of F
the Urban Land (Ceiling and Regulation) Act for demolition of
the structure and redevelopment in accordance with the
provisions of the D.C. Rules.
6. On 12.8.1981, the lessee executed an Assignment G
Agreement in favour of P.S.B. Construction Company Limited.
Paragraphs 10 and 11 of that agreement read as under:
"10. The Developer shall construct the said buildings on
the said sub-plot in accordance with the approved plan of
the said buildings as sanctioned by the Corporation and/ H
496 SUPREME COURT REPORTS (2013] 4 S.C.R.
A or in accordance with modifications and/or amendments
thereto as may be sanctioned by the Corporation on the
application in that behalf being made by the Owner at the
instance of the Developer.
11. The Developer shall also construct the said building
B
on the said sub-plot in accordance with and subject to the
conditions stipulated in the letter of Intent dated 27th May
1981 made by the Additional Collector and Competent
Authority under the ULC Act or such modifications and/or
amendments thereto as may be sanctioned by the
c Additional Collector and Competent Authority on the
application in that behalf being made by the Owner at the
instance of the Developer and the sanction under Section
22 under the ULC Act, to be obtained by the Owner after
compliance with the conditions in the said Letter of Intent
D or any modifications and/or amendments thereto as
aforesaid and the development control rules of the
Corporation and such other rules and regulations as are
applicable".
E Simultaneously, an irrevocable Power of Attorney was
executed by the lessee in favour of the developer, i.e., P.S.B.
Construction Company Limited.
7. Similar agreements were executed by the lessee on
20.8.1981 in favour of Mohamed Yusuf Patel son of Abdulla
F Patel and Mohinuddin son of Tayab Soni. On 16.6.1982, P.S.B.
Construction Company Limited entered into an agreement with
S/Shri B.K. Gupta, Manmohansingh Bhasin and Mohamed
Yusuf Abdullah Patel appointing the latter as promoters of the
builders and authorised them to develop one portion of the plot
G by demolishing the existing structures and constructing building
Nos. 1, 3 and 8 in accordance with the sanctioned plan.
8. The architect, who was initially engaged by the lessee,
continued to work on behalf of the developers/builders and
H promoters. The amended plans submitted by him for
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 497
CORPORATION OF MUMBAI [G.S. SINGHVI, J.]
construction of 9 buildings with ground and 5 upper floors were A
also approved vide order dated 2.2.1983.
9. In 1983, the lessee secured permission from the Chief
Minister of the State to raise the height of the buildings up to
60 feet. However, the revised plans submitted for construction B
of separate buildings comprising stilt and 24 upper floors; stilt
and 16 upper floors with additional 6th and 7th floor on building
No.2 and additional 6th floor on building No.3 were rejected by
the Planning Authority vide order dated 6.9.1984.
10. Notwithstanding rejection of the revised building plans, C
the developers/builders continued to construct the buildings.
Therefore, Executive Engineer, A.E. Division of the Corporation
issued 'stop work notice' dated 12.11.1984 under Section
354A of the 1888 Act mentioning therein that if the needful is
not done, the construction will be forcibly removed. It is a D
different story that after issuing 'stop work notice', the authorities
of the Corporation buckled under pressure from the developers/
builders and turned blind eye to the illegal constructions made
between 1984 and 1989. For the sake of reference, notice
dated 12.11.1984 is reproduced below: E
"MUNICIPAL CORPORATION OF
GREATER BOMBAY
Notice under section 354A of the
Bombay Municipal
Corporation Act 12.11.1984 F
No.EB/3347/A of 1981
To
Shri Madanjit Singh C.A. Shri Charanjit Singh, Pure Drinks
Pvt. Ltd., Plot. No.9 Worli Scheme No.58 B.G. Kher Marg, G
Worli Bombay-18.
Whereas the erection of a building work as described in
section 342 of the-above-rrnm11oned act is being unlawfully
H
498 SUPREME COURT REPORTS [2013] 4 S.C.R.
A carried on you at premises NO.C.S.No.868 and 1/868 of
Worli situated at plot No.9 Worli Scheme 58 B.G. Kher
Marg Worli.
And whereas under section 68 of the said Act the Municipal
Commissioner for greater Bombay has duly empowered
B
me to exercise the powers conferred upon him by section
354 A of the said Act. Now I do hereby give you notice
that if, after the expiration 24 hours from the service hereof
upon you, it is found that the construction of said building
work is still being carried on by you, I shall, pursuant to
c section 354A of the said Act and in exercise of the powers
conferred on me as aforesaid, direct that you be removed
from the said-premises by police officer.
Work being carried out beyond approved plan in as much
D as the foundation work of sky scrapper is being lane site
incharge plot no.9.
B.G. Kher Marg Worli.
A.E. Division
Executive Engineer
E B.P. (City)
Bombay Municipal Corporation"
11. In the interregnum, the lessee and the developers/
builders engaged a new architect, namely, Shri Jayant Tipnis.
He submitted another set of plans on 3.6.1985 proposing 7
F new buildings and requested for withdrawal of stop work notice.
The Planning Authority rejected the new plans on the ground
that the construction had been raised in gross violation of the
sanctioned plan. Thereupon, Shri Jayant Tipnis sent notice
dated 9.8.1985 to the lessee that no work should continue till
G the amended plans are sanctioned. The Executive Engineer of
the Corporation sent letter dated 28.9.1988 to Shri Jayant lipnis
with a copy to the lessee and asked them to inform the
developers/builders not to proceed with the work till the stop
work notice was withdrawn. In turn, Shri Jayant lipnis wrote to
H
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 499
CORPORATION OF MUMBAI [G.S. SINGHVI, J.]
construction. He also informed the Corporation about the A
intimation sent to the developers/builders and stated that
despite intimation they had illegally and unauthorisedly carried
out the construction work by utilizing excess Floor Space Index
(FSI).
B
12. In 1994, Shri Jayant Tipnis submitted further amended
plans prepared by M/s. Designs Consortium. The Deputy Chief
Engineer rejected the new plans by recording the following
reasons:
"(1) Advantage of lift, staircase lobby area claimed which C
is not admissible as per the prevailing rules, regulations
and policy.
(2) Flower-beds are not counted in F.S.I. As per then M.C.'s
order the same are to be counted in F.S.I. since they are D
at the same floor level beyond balcony.
(3) Inadequate parking provisions.
(4) Height of towers contravene D.C. Rule (9) provisions.
E
(5) R.G. is not as per D.C. Rule.
(6) Plot area for the permissible F.S.I. shall be in
accordance with the change of user permitted by U.D.
Deptt.'s order."
F
13. On receipt of the. letter of rejection, Shri Jayant Tipnis
informed the lessee and the developers/builders that in view of
the stop work notice, the construction could not have been made
in violation of the sanctioned plan and the D.C. Rules. This was
incorporated by him in letter No.BC 1414 (C)-91 dated G
22.2.2002 sent to the Executive Engineer, Building Proposals
(City-I), the relevant portions of which are extracted below:
"Ref.No.BC 1414 (C)-91 22nd February, 2002
The Executive Engineer, H
500 SUPREME COURT REPORTS [2013] 4 S.C.R.
A Building Proposals (City-I),
Municipal Corporation of Greater Mumbai,
Byculla,
Mumbai - 400 008.
Sub : Violation of F.S.I. at Campa-cola compound, plot
B No.9, Worli Scheme No.58, B. G. Kher Marg, Worli,
Mumbai - 400 018.
Dear Sir,
We thank for your letter No.EB/3342/GS/A dated 'nil'
c personally handed over to us 21.2.2002.
Gist of how file/project moved till date is enclosed.
There was no correspondence since the last several
years. However, there used to be some notice or letter we
D used to receive from a few members and correspondence
of B.Y.Builders Pvt. Ltd. We have time and again informed
you that we have informed all the developers/society
members, managing bodies upto what level the plans have
been sanctioned, what was the stage of construction they
E have carried out and to the developers of the project. After
site visit the summary report was worked out by the
Corporation and it was informed to owners Mis. Pure
Drinks Pvt. Ltd., copy of which was sent to us. However,
how this file moved, summary of which is enclosed which
F probably would be useful while going through the matter
and would also be clear about the stand we have taken.
On a number of occasions we have informed you
that all the developers have been informed to stop the work
in view of the stop work notice and such copies have been
G already on record. The developers have almost vanished
from the scene and nobody is coming forward to take on
the responsibility of the work done by them inspite of our
instructions nor the owners have any query. To sum up it
is only interested parties/flat purchasers keep on running
H
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 501
CORPORATION OF MUMBAI [G.S. SINGHVI, J.]
is only interested parties/flat purchasers keep on running A
here and there for their daily necessities and the matter is
reopened after a lapse of few years. We strongly feel that
this is a gross violation of Development Control Rules and
since the year 1984 the stop work notice is on record.
Action under MRTP Act was initiated by you against the B
developers and the owners but we do not know exactly
what happened thereafter.
Sub: Proposed Development at Campa Cola
Compound, Plot No.9, Worli Scheme, B.G. Kher Marg, C
Worli, Mumbai-400018.
1) to 5) xxx xxx xxx
6) By our letter BC 1414 (B)-56 dated 05.01.1990 we
addressed to all the Developers stating that the STOP o
WORK notice issued by the Brihanmumbai
Mahanagarpalika against the subject work was not yet
withdrawn by them but it was observed they continue to
carry out the work of one way or other nature of the
proposed structure which was in violation of the directives E
issued by EEBP (City) to them, for which responsibility
solely rested with them. We, therefore, instructed them to
stop the work being carried out by them on all fronts
forthwith and if however, they continued any work at site
henceforth it would be entirely at their risk and
F
consequences and requested them to confirm to us in
writing that the work was stopped by them completely
immediately on receipt of the said letter. Copy of the said
letter was endorsed to EEBP (City) to note the above
instructions issued to the Developers.
G
7) xxx xxx xxx
8) In reply to letter dated 30.03.1992 addressed to the 4
Developers and copy endorsed to us by Campa cola
Compound Residents Association, we clarified to them
H
502 SUPREME COURT REPORTS (2013] 4 S.C.R.
A vide our letter No.BC 1414 {B) 6 dated 10.04.1992
bringing to their notice following facts.
8 b) To the best of our knowledge there was no occupation
permission granted by Brihanmumbai Mahanagarpalika for
any part of the building except building No. ?A and B in
B
any of the units covered by the said proposal and therefore
ii was informed that they could not occupy the flats without
OCC from the Corporation and requested them to vacate
the flats occupied by them without delay and to inform us
accordingly.
c
9) Esha Ekta Apartment Co-operative Housing Society
Limited addressed a letter dated 04.08.1994 to EEBP
(City) and copy endorsed to us and the Director,
Engineering Services and Projects and the Municipal
D Commissioner, stating that they were members occupying
building No. 2 and requiring action against Developers.
1 Oa) The Developers concerned with the said
Development were kept fully informed by us about the
STOP WORK notice issued on the proposal on
E
24.11.1986 that no work could be carried out at site. On
the very same day of receipt of STOP WORK notice on
24.11.1986 we instructed all the Developers concerned to
pay the penalty to BMC and also to stop the work of the
project forthwith otherwise the plans would not be
F processed further with the said authority. On receipt of the
EEBP letter dated 02.06.1990, we have issued final
instructions to the Developers I Lessee to stop the work
on the project forthwith and that the responsibility for such
work carried out but not cleared by the said authority would
G be on them We further stated that we were not aware of
any occupation already obtained by Esha Ekta Apartment
Cooperative Housing Society and therefore we did not
undertake any responsibility for anything contrary to the
plans submitted by us to EEBP (City) Office, if found,
H carried out by the said Society through their Developers.
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 503
CORPORATION OF MUMBAI [G.S. SINGHVI, J.]
said Developers and, therefore, did not agree with any of A
their statement mentioned in the said letter.
12) We have informed all the 3 Developers vide our letter
No. BC 1414(B)-77 dated 25.11.1994 intimating that
amended plans were not approvable and requesting them
B
to coordinate with us for arranging a joint inventory of the
premises and copy of the said letter was endorsed to
Dy.C.E. B.P. (City)."
14. It is borne out from the record that even before
commencement of the construction, some of the developers/ C
builders executed agreements with the prospective buyers. A
copy of such an agreement signed on 18.7.1985 between
P.S.B. Construction Company Limited and Mrs. Manjula Devi,
W/o Amar Chand and Amar Chand was placed before the Court
on 5.1.2012 by Shri Harish Salve, who had earlier appeared o
on behalf of respondent No.4, to show that the buyers of the
flat were aware that the revised plans submitted by the architect
had not been approved by the Planning Authority till the signing
of agreement. This is evinced from paragraphs (v), (w), (x) and
(a-1) of the agreement, which are extracted below: E
"(v) The Builders plan to demolish the present structures
standing on the said Plot X and to put up a new multi-
storeyed buildings on the said Plot in accordance with the
terms of the said Letter of intent dated 27th May 1981 of
the Additional Collector and Competent Authority or any F
modification thereof may be made by him and the
permission under Section 22 of the U.L.C. Act that may
be granted by him in pursuance thereof.
(w) Building plans got prepared by the Builders for revising G
the said plans sanctioned by the said corporation for
putting up such new multi-storeyed buildings on the said
Plot X have been submitted to the said Corporation for
approval and sanction.
H
504 SUPREME COURT REPORTS (2013] 4 S.C.R.
A (x) The Purchaser has taken inspection of the documents
of title relating to the said property, the said Notification
dated 25th December 1980, the said Letter of intent dated
27th. May 1981, the said Agreements respectively dated
12th August 1981, 20th August 1981, 1st September 1981
B and 10th September 1981 and the said Power of Attorney
dated 10th September 1981, and the said plans
sanctioned by the said Corporation and the revised plans,
designs and specifications prepared by the Builders'
Architects Messrs. B. K. Gupta and of such other
documents as are specified under the Maharashtra
c Ownership Flats (Regulation of Construction, Management
and Transfer) Act, 1963 (which the Purchaser doth hereby
confirm).
(a-1) The Purchaser has agreed to acquire from the
D Builders Flat/Shop No. Two on the fifth floor of the Building
No.Two and/or covered/open car parking space garage
No. NIL in the compound (hereinafter referred to as 'the
said Premises') with full notice of the terms and conditions
and provisions contained in the documents referred to
E hereinabove and subject to the terms and conditions
hereinafter contained."
15. Similar agreements were executed between the
purchasers and the developers/builders. In each of the
F agreements it was mentioned that the developers/builders had
submitted a revised plan for sanction and the purchaser has
taken inspection of the documents of title, etc.
16. After executing agreements with the developers/
builders, the prospective buyers formed Cooperative Housing
G Societies, namely, Esha Ekta Apartments Cooperative Housing
Society Limited, Patel Apartments Cooperative Housing
Society Limited, Orchid Cooperative Housing Society Limited,
B.Y. Apartments Cooperative Housing Society Limited,
Midtown Apartments Cooperative Housing Society Limited and
H Shubh Apartment Cooperative Housing Society Limited
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 505
CORPORATION OF MUMBAI [GS. SINGHVI, J.]
(hereinafter referred to as 'the housing societies'). A
17. Although the members of the housing societies knew
that the construction had been raised in violation of the
sanctioned plan and permission for occupation of the buildings
had not been issued by the Competent Authority, a large B
number of them occupied the illegally constructed buildings.
After this, the housing societies started litigation in one form
or the other. Midtown Apartments Cooperative Housing Society
Limited filed Writ Petition No.1141 of 1999 in the Bombay High
Court for issue of a direction to the Corporation and its C
functionaries to supply water to the building occupied by its
members. That petition was decided by the Division Bench of
the High Court vide order dated 12.7.1999, which reads as
under:
"1. The burning issue of non supply of water to the D
tenements is now satisfactory resolved. We are not in a
position to go into the dispute between the Bombay
Municipal Corporation and the builder on the issues of FSI
violation and the consequent non-granting of Occupation
certificate. This is a matter where there is a triangular E
dispute between the Petitioner-Society the 1st Respondent-
Bombay Municipal Corporation and the 4th Respondent-
builder.
2. We give liberty to the parties to agitate their rights in F
an appropriate Court of law and obtain such reliefs as they
are entitled to in law. This is not an issue which can be
satisfactorily resolved in a writ petition since there appear
to be several disputed facts.
3. The 1st Respondent BMC shall non dis-continue the G
water supply of the Petitioner-Society on the ground that
there are outstanding arrears or disputes with the 4th
Respondent-builder.
4. The 1st Respondent-BMC shall submit a copy of the bill H
506 SUPREME COURT REPORTS [2013] 4 S.C.R.
A for water charges to the petitioner and shall accept
payment from it, if offered.
5. The 1st Respondent-BMC is at liberty in take such
action as is permissible in as against the Petitioner-
Society and the 4th Respondent-builder for recovery of
B
arrears of all other charges which are alleged to be due.
6. The petitioner and/or the 4th Respondent to comply with
the requisitions made by the 1st Respondent-BMC, as
specified in the Permission Form date 22.06.1990.
c
7. In view of the above directions, nothing further needs to
be done in the matter which is allowed to be withdrawn and
dismissed as such with liberty aforesaid."
(Reproduced from the paper book)
D
18. Thereafter, other housing societies filed Writ Petition
Nos. 2402, 2403, 2904, 2949 of 1999 and 1808 of 2000 for
grant of similar relief.
E 19. During the pendency of the writ petitions, Shri Jayant
Tipnis submitted application dated 22.2.2002 for regularization
of the unauthorized construction by stating that 9292.95 sq. fts.
had been consumed over and above the FSI granted for the
project and this was done without his knowledge. His proposal
F was rejected by the Deputy Chief Engineer vide order dated
7.7.2003, which reads as under:
"Dy. Ch. E.B.P. (C)/1627/ Gen Ben
7.7.03
MUNICIPAL CORPORATION OF GREATER MUMBAI
G No. EB/3342/GS/A
Shri Jayant C. Tipnis,
Architect,
Sadguru Darshan, 1050,
New Prabhadevi Road,
Mumbai-400 025.
H
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 507
CORPORATION OF MUMBAI [G.S. SINGHVI, J.]
Sub: Proposed development of Plot No.9, Worli Scheme A
No. 53, CTS No.868, 1/868, Worli Division, B.G.
Kher Marg, Mumbai 400 018 Popularly known as
Campa Cola compound.
Ref: Your letter addressed to M.C. bearing No.BC-1414
8
(:'C)-117 dated 02.06.2003
Sir,
By directions, this is to inform you that your request to
exempt the area of staircase, lift and lift lobby from F.S.I, c
computation cannot be acceded to, since the same is not
in conformity with the provisions of D.C. Regn. 35 (2)(c).
Further, proposal under reference was decided by the
Corporation prior to coming into force of D.C. Regn. 1991
and C.C. for the entire work was issued on 08.09.82. The D
permissible F.S.I, has already been exhausted.
Yours faithfully,
Sd/-
Dy. Chief Engineer,
Building Proposals (City)" E
20. Shri Jayant Tipnis challenged the aforesaid order by
filing an appeal under Section 47(1) of the 1966 Act and prayed
that the Corporation be directed to reconsider the proposal
under Development Control Regulations for Greater Mumbai,
1991 (for short, 'the 1991 Regulations') and regularize the FSI F
consumed in constructing the buildings by charging premium.
The Chief Minister of the State, who was also in-charge of the
Department of Urban Development, dismissed the appeal vide
order dated 4.6.2010, the relevant portions of which are
extracted below: G
"The statement of residential buildings approved by
MCGM on the above plot under reference along with the
progress of the work of the buildings constructed is as
under:-
H
508 SUPREME COURT REPORTS [2013] 4 S.C.R.
A
Building Approval details as Present position
No. plans dated 2.2.83
Building Basement + stilt + 5 No work carried out
No. 1 upper floors
B
Building Basement + Ground Floor Basement + Stilt + 7
No.2 (pt.) + Stilt (pt.) + 5 upper upper floors + 8th upper
floor floor (pt.)
Building Basement + Stilt (pt.) + Basement + Stilt (pt.) +
c No.3 Ground Floor (pt. ) + 5 Ground Floor (pt. ) + 5
upper floors upper floors + 6 upper
floor (pt.)
Building Basement + Stilt (pt.) + Basement + Ground
D No.4 Ground Floor (pt. ) + 5 Floor (pt.) + 6 upper
upper floors floors + 7 upper floor (pt.)
Building Stilt (pt) + Ground Floor Stilt + 19 Upper floor +
No.5 (pt. ) + 5 upper floors 20th upper floor (pt)
E Building Stilt (pt) + Ground Floor Ground Floor + 17 upper
No.6 (pt) + 5 upper floors floors
Building Stilt + 5 upper floors Stilt + 5 upper floors + 6
No.7A upper floor (pt.)
Building Stilt + 5 upper floors Stilt + 6 upper floor
F
No.7B
Building Stilt + 5 upper floors Work not carried out
No. 8
Accordingly, MCGM has initiated necessary action
G as per the provisions of ... M.C. Act. 1888 I MRTP Act,
against the Builder I Developer and the same are ...
vigorously followed and occupation permission has not
been granted to any of the building in the Campa Cola
Compound till date.
H
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 509
CORPORATION OF MUMBAI [G.S. SINGHVI, J.]
Architect Shri Jayant Tipnis vide his letter dated A
7.6.2002 No. BC I C-92 addressed to the Ex. Eng. (B.P.)
City has stated that roughly 9292.95 sq.ft. of area has been
consumer over and above the FSI granted to the said
project and almost the area of 14148.22 sq.ft. has been
consumed in the staircase lift and lift lobby which if made· B
available to the complex on payment of premium, it is
possible that the whole complex as is and as built up could
be regularized on the payment of concessional penalty, as
the builders who have developed this property are not in
developers and he can not be blamed and I or held c
responsible for the same. Balance FSI from their remaining
part shall not be utilized to regularize this unauthorized
constructions. The unauthorized construction carried out by
the Developer is not as per the provisions of the
Development Control Regulations-1967. The MCGM has D
given the permission prior to 1991. Therefore,
Development Control Regulations, 1991 will not be
applicable and accordingly, the unauthorized construction
cannot be regularized. Hence, appeal may be rejected.
In this matter, Hon'ble High Court passed an order E
dated 17.03.2010. In this order, Hon'ble High Court gave
directives to the Minister (UDD) to hear and dispose off
the appeal under Section 47 filed by the applicant within
12 weeks from the date of the Order.
F
It is pertinent to note here that Appellant Architect Shri
Jayant Tipnis submitted the amended plans BC/ 1414 C-
95 dated 3.7.2002 by claiming the area of staircase, lift
and lift lobby area free of FSI as per the Clause 35 (2) of
Development Control Regulations 1991 to MCGM. G
However the said plan was rejected by MCGM vide letter
No. Dy. Ch. Engineer (B.P.) City I 2186 I Gen. dated
6.8.2002 stating therein that the amended plans submitted
cannot be considered for approval as the area of staircase ·
lift, lift lobby can not be exempted on FSI computation.
H
510 SUPREME COURT REPORTS (2013] 4 S.C.R.
A Since the proposal under reference was approved and CCI
was also issued prior to OCR (1991) coming into force i.e.
25.3.1991 and the same was already intimated to the
applicant vide MCGM's letter dated 19.11.1994.
Considering the Hon'ble High Court's order dated
B
17.03.2010 and the representation made by appellant,
MCGM & M/s Pure Drinks P. Ltd. and considering the plot
under reference is situated in CRZ area, exemption under
Section 35 (2)(c) of the Development Control Regulations,
1991 for the area of staircase, lift, lift lobby from floor
c space index computation cannot be granted. Appeal is not
maintainable. Since the land belongs to MC_GM, for the
issues other than FSI appellant may approach MCGM
separately."
D 21. When the writ petitions filed by the housing societies
and their members for issue of direction to the Corporation to
supply water to their buildings were taken up for hearing, the
Division Bench of the High Court noted that even though the
buildings were constructed in violation of the sanctioned plan,
E the Corporation had not taken action against those responsible
for such construction and passed order dated 11.10.2005 for
appearance of Additional Commissioner of the Corporation.
The relevant portions of that order are extracted below:
"In the course of the argument, it was revealed by the
F Advocate for the Corporation on taking instructions that
original licence for construction was granted in favour of
four persons viz. Shri Manjit Singh Madanjit Singh, Power
of Attorney Holder of S. Karanjit Singh, Chief Executive
Officer of Pure Drink Pvt.Ltd., Shri lshwarsingh Chawla of
G PSD Construction Pvt.Ltd., Shri D.K.Gupta of D.Y. Builders
Pvt.Ltd. and Abdula Yusuf Patel. Pursuant to the illegality
in construction having been found, notices were issued
under Section 53-1 of the M.R.T.P. Act on 20th February,
2002 to all the four persons mentioned above. Thereafter,
H sanction was granted for prosecution of all the four persons
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 511
CORPORATION OF MUMBAI [G.S. SINGHVI, J.]
and decision in that regard was taken on 19th May, 2003 A
by the Executive Engineer (Building Proposal), CT/1 of the
Corporation. Meanwhile, the panchanama of the illegal
construction was carried out on 13th November, 2002.
Besides, the prosecution was launched against builder,
developer and all the occupants of the building and they B
were convicted on admission of guilt and sentenced by
way of imposition of fine from Rs.600/- to Rs.2000/-
imposed by the Magistrate. Apart from the above actions,
no other action has been taken by the Corporation in
relation to the illegal construction. The affidavit-in-reply filed c
on behalf of the Corporation before issuance of rule in the
petition by Shri Kurmi Deonath Sitaram, Executive
Engineer, DP(City)(I) discloses that initial approval was
granted for six wings consisting of ground plus five upper
floors and it was issued on 9th June, 1981 and
0
Commencement Certificate was granted on 10th June,
1981. The amendment plans were approved for nine wings
of ground plus five upper floors on 2nd February, 1983.
Thereafter, amendment plans proposing stilt plus twenty-
four floors and stilt plus sixteen floors with additional sixth
and seventh floor to building nos.2 and 4 and additional · E
sixth floor for the part of building no.3 were submitted but
they were refused on 6th September, 1984. lnspite of that,
the constructive activities continued and the work beyond
the approved plans was carried out, and therefore Stop
Work notice was issued under Section 353-A of the MMC F
Act on 12th November, 1984. However, the work
continued. Again new architect submitted further plan with
a fresh notice under Section 337. The same was rejected
by the Corporation.
G
The affidavit also discloses the various illegalities
committed in the course of construction of the buildings
which include construction of additional floors without
approval, increase in the height of the building and carrying
of construction beyond the permissible limits of FSI, apart H
512 SUPREME COURT REPORTS [2013] 4 S.C.R.
A from other illegalities. The affidavit, however, does not
disclose as to what action, if any, for prohibiting the
developer and the owner from proceeding with the
construction, was taken as wall as what action was taken
after illegal construction having been carried out, apart from
B launching prosecution and issuance of notices. Even in the
course of the argument, learned Advocate appearing for
the Corporation could not satisfy us about any concrete
action having been taken by the Corporation for stoppage
of illegal construction or demolition of illegal construction.
c In fact, the arguments in the matter were heard partly on
27th September and again yesterday and as well as today.
On the very first day of the argument, it was orally informed
by the learned Advocate for the Corporation that he would
ensure the presence of the officer of the Corporation to
assist him in order to enable him to give correct detail
D
information in the matter. lnspite the officer being present,
we are not able to get the detail information regarding the
action taken by the Corporation as also the detail
description of the illegalities committed by the builder and
any other persons on his behalf in the matter. It is to be
E noted that undisputedly the records disclose some
illegalities in the matter of construction carried out since
the year 1984 onwards. lnspite of affidavit having been filed
in the year 2000, the Corporation has not explained the
reason for failure on its part to take appropriate action
F against the illegal construction and even today. Apart from
being assisted by the officer of the Corporation, the
Advocate appearing for the Corporation is unable to
disclose the reason for the same. We find it necessary to
issue notice to the Additional Commissioner to appear in
G person before us on Friday i.e. 14th October, 2005 at
11.00 a.m. to explain the same alor\gwith all records in the
matter, as it is informed by the Advocate for the
Corporation that Commissioner is out of India."
22. On the next date of hearing, the Commissioner of the
H
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 513
CORPORATION OF MUMBAI [G.S. SINGHVI, J.]
Corporation appeared before the High Court and gave an A
assurance that necessary steps will be taken in accordance with
law within a period of two months. Thereafter, the Corporation
issued notices dated 11.11.2005, 19.11.2005 and 5.12.2005
under Section 351 of the 1888 Act giving details of the illegal
structures proposed to be demolished. The housing societies B
submitted their respective replies which were rejected by the
Corporation vide order dated 3/8.12.2005.
23. Faced with the threat of demolition of the buildings, the
housing societies and some of their members filed Long Cause C
Suits for quashing the notices issued under Section 351 of the
1888 Act and order dated 3/8.12.2005. They pleaded that the
buyers of the flats were not aware that the buildings had been
constructed in violation of the sanctioned plan. They also filed
applications for restraining the Corporation from demolishing
the illegal portions of the buildings. Initially, the trial Court stayed D
the demolition of the illegal construction but, after hearing the
parties, the applications for temporary injunction were
dismissed on the premise that the developers/builders had
constructed a number of floors without obtaining permission from
the Planning Authority, that too, despite the stop work notice E
issued under the 1888 Act and that the application made for
regularization of the illegal construction had been rejected by
the Corporation. The trial Court rejected the contention of the
members of the housing societies that they had purchased the
flats without knowing that the same were illegally constructed F
by the developers/builden:>. The trial Court noted that the
architect had repeatedly told the developers/builders that
construction cf buildings beyond the sanctioned plan was illegal
and the members of the housing societies were very much
aware of this fact. G
24. The appeals filed by the housing societies and their
members were dismissed by the learned Single Judge of the
Bombay High Court, who agreed with the trial Court that
members of the housing societies were in know of the fact that H
514 SUPREME COURT REPORTS [2013] 4 S.C.R.
A the.flats occupied by them had been constructed in violation of
the sanctioned plan. ·
25. The housing societies and their members challenged
the order of the High Court in Special Leave Petition (C) Nos.
8 33471, 33601, 33940, 35402 and 35324 of 2011. After hearing
the counsel for the parties at length, this Court expressed the
view that the special leave petitions are liable to be dismissed.
However, keeping in view the submission of the learned counsel
that demolition of the illegal and unauthorized construction
would adversely affect the flat buyers and their families and the
C writ petition filed by them for regularization of the disputed
construction was pending before the High Court, it was
considered appropriate to transfer the writ petition to this Court.
Accordingly, order dated 29.2.2012 was passed, paragraphs
16 to 19 of which are reproduced below:
D
"16. In these cases, the trial Court and the High Court have,
after threadbare analysis of the pleadings of the parties
and the documents filed by them concurrently held that the
buildings in question were constructed in violation of the
E sanctioned plans and that the flat buyers do not have the
locus to complain against the action taken by the
Corporation under Section 351 of 1888 Act. Both, the trial
Court and the High Court have assigned detailed reasons
for declining the petitioners' prayer for temporary injunction
F and we do not find any valid ground or justification to take
a different view in the matter..
17. The submission of Dr. Abhishek Manu Singhvi that the
constructed area should be measured with reference to the
total area of the plot cannot be accepted for the simple
G reason that the State Government had sanctioned change
of land use only in respect of 13049.45 sq. meters.
18. In view of the above, we may have dismissed the
special leave petitions and allowed the Corporation to take
H ·action in furtherance of notices dated 19.11.2005 and
ESHA EKTA APARTMENTS CHS LIMl.TED v. MUN. 515
CORPORATION OF MUMBAI [G.S. SINGHVI, J.]
orders dated 3/8.12.2005, but keeping in view the fact that A
the flat buyers and their families are residing in the
buildings in question for the last more than one decade,
we feel that it will be in the interest of justice that the issue
relating to the petitioners' plea for regularization should be
considered by this Court at the earliest so that they may B
finally know their fate.
19. We, therefore, direct the petitioners to furnish the
particulars of the writ petitions filed for regularization of the
construction which are pending before the High Court. The C
needful be done within a period of two weeks from today.
Within this period of two weeks, the petitioners shall also
furnish the particulars and details of the developers from
whom the members of the ·societies had purchased the
flats. List the cases on 16th March, 2012 (Friday)."
D
26. In compliance of the direction issued by this Court,
learned counsel for the petitioners informed that Writ Petition
Nos.6550/201 O filed for regularization of the disputed
construction is pending before the High Court. They also
furnished the particulars of the developers/builders from whom E
members of the housing societies are said to have purchased
the flats. Thereafter, this Court suo motu ordered transfer of the
writ petition pending before the Bombay High Court and
impleadment of the developers/builders with a direction that
notice be issued to them. F
27. The record received from the Bombay High Court
revealed that Writ Petition No.6550/2010 was filed by Campa
Cola Residents Association, which is said to have been
registered on 3.2.1992 and of which the residents of the six
housing societies are members, and its Secretary - Shri Rohit G
Malhotra for quashing orders dated 7.7.2003 passed by the
Deputy Chief Engineer and 4.6.2010 passed by the Appellate
Authority as also the notices issued under Section 351 of the
1888 Act with a further prayer for issue of a mandamus to the
Corporation to regularize the disputed constructions. H
516 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 28. The writ petitioners have pleaded that the flat buyers
should not be penalized for the illegalities committed by the
lessee and developers/builders in connivance with the officers
of the Corporation. According to the petitioners, the purchasers
of the flat were not aware of the fact that even though the
s Planning Authority had not sanctioned the revised plans, the
developers/builders constructed additional floors and utilized
the FSI far in excess of what is permitted by the 1888 Act and
the D.C. Rules.
29. The lessee and respondent No.4 have filed separate
C counter affidavit. Their stand is that the purchasers of the flat
cannot plead innocent ignorance because they were very much
aware of the fact that the revised plans submitted by the
developers/builders had not been sanctioned by the Planning
Authority and also that construction had been made despite the
D stop work notice issued by the Corporation. It is also the case
of the lessee that while executing Assignment Agreement, it had
made it clear to the developers/builders that they must raise
construction strictly in consonance with the sanctioned plan. On
its part, respondent No.4 has pleaded that it had purchased the
E remaining portion of the plot in question by paying a huge
amount of Rs.30 crores and the petitioners have nothing to do
with that portion of the plot.
30. Shri Ravi Shankar Prasad, learned senior counsel
F appearing for the petitioners in the transferred case ~rgued that
the order passed by the Deputy Chief Engineer and the
Appellant Authority are liable to be quashed because neither
of them applied mind on the petitioners' prayer for
regularization. Learned senior counsel laid considerable
G emphasis on the fact that the members of the housing societies
were not aware of the illegal nature of construction made by
the developers/builders and argued that the innocent buyers
should not be penalized for the misadventure of the lessee and
the developers/builders. Shri Prasad read out portions of
agreement dated 10.6.1981 executed between the lessee and
H the developers/builders and sample of the agreement entered
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 517
CORPORATION OF MUMBAI [G.S. SINGHVI, J.]
into between the developers/builders and the flat buyers to A
show that the latter were not apprised of the fact that some
floors of the buildings were constructed in violation of the
sanctioned plan and submitted that the Corporation cannot take
advantage of its own wrong of not taking any action against the
lessee and the developers/builders, who are solely responsible B
for constructing the buildings in violation of the· sanctioned plans.
He then relied upon the 1991 Regulations and argued that the
Corporation should be,directed to regularize the additional FSI
by charging appropriate penalty. Shri Prasad also referred to
Circular No.CHE/2005/DP/GEN dated 4.2.2011 issued by the c
Corporation for regularization of the illegal construction by
charging penalty and submitted that this Court may exercise
power under Article 142 of the Constitution for directing
regularization of the disputed construction else the flat buyers
will be deprived of the only shelter available to them. D
31. Dr. A. M. Singhvi, learned senior counsel appearing
for some of the housing societies and their members
emphasized that the flat buyers should not be made victim of
the illegalities committed by the lessee in collusion and
connivance with the developers/builders. He argued that the E
Corporation cannot take advantage of its own wrong, i.e., failure
to take prompt steps to stop the illegal construction. Learned
senior counsel then referred to the provisions of the
Maharashtra Ownership Flats (Regulation of the Promotion of
Construction, Sale, Management and Transfer) Act, 1963 (for F
short, 'the 1963 Act') and argued that the developers/builders
and promoters should be held liable for acting in violation of
the sanctioned plans but the disputed construction should be
regularized by invoking the provisions of the 1991 Regulations.
G
32. Learned Attorney General referred to Sections 44, 45,
47, 52 and 53 of the 1966 Act and argued that the extra floors
constructed by the developers/builders cannot be regularized
because that would tantamount to violation of the D.C. Rules.
He further argued that the Deputy Chief Engineer and the
H
518 SUPREME COURT REPORTS [2013] 4 S.C.R.
A Appellate Authority did not commit any error by refusing to
entertain the prayer made by the architect of the lessee for
regularization of the buildings because the same fall within the
CRZ area. He relied upon the judgment in Suresh Estates
Private Limited v. Municipal Corporation of Greater Mumbai
B (2007) 14 sec 439 and argued that the petitioners cannot rely
upon the 1991 Regulations for seeking regularization of the
illegally constructed floors.
33. Shri C.U. Singh, learned senior counsel appearing for
C the lessee and Shri Dave, learned senior counsel for
respondent No.4 relied upon the sanction accorded by the
State Government vide order dated 31 .12 .1980 for change of
land use subject to the condition of compliance with relevant
statutory provisions including the D.C. Rules and argued that
the appellants do not have the locus to challenge the action
D taken by the Corporation for demolition of the illegal and
unauthorized construction or seek regularization thereof, more
so, because even before commencement of the construction,
tha flat buyers knew that the Planning Authority had not
sanctioned the revised plans submitted by the developers/
E builders through their architect.
34. We have considered the respective arguments/
submissions. The first question which arises for consideration
in the transferred case is whether the writ petitioners are entitled
F to seek regularization of the illegal and unauthorized
construction made by the developers/builders. At the cost of
repetition, it will be apposite to note that the Deputy Chief
Engineer had rejected the request made by the architect for
exemption of the area of staircase, lift and lift lobby from FSI
G by observing that the same is not in conformity with Clause
35(2)(c) of the 1991 Regulations because the Corporation had
decided the proposal prior to coming into force of those
regulations and the permissible FSI had already been
exhausted. The Appellate Authority agreed with the Deputy
H Chief Engineer that the 1991 Regulations cannot be invoked
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 519
CORPORATION OF MUMBAI [G.S. SINGHVI, J.]
for regularization of the disputed construction because the same A
were enforced much after rejection of the amended plans and
the plot in question is situated in CRZ area.
35. In our view, the reasons assigned by the Deputy Chief
Engineer and the Appellate Authority are in consonance with B
the law laid down by this Court in Suresh Estates Private
Limited v. Municipal Corporation of Greater Mumbai (supra).
The facts of that case were that after purchasing a plot
measuring 8983 sq. mtrs. situated at Dr.Babasaheb Jaykar
Marg, appellant Nos. 1 and 2 submitted plans to develop the
same by constructing a luxury hotel in terms of the D.C. Rules. C
In the application, the appellants mentioned that they are entitled
to additional FSI as per Rule 10(2) of the D.C Rules. The
Corporation made a recommendation to the State Government
that in view of the CRZ notification and the D.C. Rules,
additional FSI be granted to the appellants. The Ministry of D
Environment and Forest sent communication dated 18.8.2006
to the Principal Secretary, Urban Development Department,
Government of Maharashtra clarifying that the D.C. Rules, which
existed on 19.2.1991 wouJd apply to the areas falling within the
· CRZ notification and the word 'existing' means the rules which E
prevailed on 19.2.1991. It was also mentioned that the draft
regulations of 1989, which came into force on 20.2.1991 would
not apply. At that stage, the appellants filed a writ petition before
the High Court with the complaint that the Corporation had not
communicated its decision within 60 days. The same was F
disposed of by the High Court with a direction to the State
Government to' decide the application of the appellants within
six weeks. Before this Court, it was argued on behalf of the
Corporation that the D.C. Rules would not apply to the
development permission sought by the appellants and the 1991 G
Regulations are applicable in the matter. According to the
Corporation, the 1991 Regulations do not provide for additional
FSI for the proposed hotel project. It was further argued that the
restrictions contained in the CRZ notification will be attracted
because the plot is situated in CRZ area. This Court noted that H
520 SUPREME COURT REPORTS [2013] 4 S.C.R.
A the 1991 Regulations were notified on 20.2.1991 and came into
force on 25.3.1991 whereas CRZ notification was issued on
2.2.1991 and observed:
"The word "existing" as employed in the CRZ notification
means the town and country planning regulations in force
B as on 19-2-1991. If it had been the intention that the tow11
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
c which were in existence on the date of the notification.
What is stressed by the notification 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
D on the date of the notification.
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 contents
of CRZ II notification issued under the provisions of the
E
Environment (Protection) Act which has the effect of
prevailing over the provisions of other Acts. the application
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
F
of 1989 which came into force on 20-2-1991 in the form
of the Development Control Regulations for Greater
Bombay. 1991.
The argument that in view of the provisions of Section 46
G of the Town Planning Act, 1966, the Planning Authority has
to take into consideration the draft regulations of 1989
and, therefore, the appellants would not be entitled to
additional FSI is devoid of merits.
Section 3 of the Environment (Protection) Act, 1986 inter
H
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 521
CORPORATION OF MUMBAI [G.S. SINGHVI, J.)
alia provides that the provisions of the Act and any order A
or notification issued under the said Act will prevail over
the provisions of any other law.
The phrase "any other law" will also include the MRTP Act,
1966. As noticed earlier the Notification dated 19-2-1991 B
issued under the provisions of the Environment
(Protection) Act, 1986 freezes the building activity in an
area falling within CRZ II to the law which was prevalent
and in force as on 19-2-1991. The draft regulations of 1989
would therefore not apply as they were not existing law in C
force and prevalent as on 19-2-1991.
In view of the peculiar circumstances obtaining in the
instant case, the Court is of the opinion that Section 46 of
the MRTP Act, 1966 would not apply to the facts of the
instant case. Further, when the sanctioned DC D
Regulations for Greater Bombay, 1991 do not apply to
areas covered within CRZ II, since those Regulations came
into force with effect from 25-3-1991, its previous draft
also cannot apply. The draft published is to be taken into
consideration so that the development plan is advanced E
and not thwarted. The draft development plan was capable
of being sanctioned, but when the final development plan
is not applicable, its draft would equally not apply as there
is no question of that plan being thwarted at all. As far as
development in the area covered by CRZ II is concerned, F
one will have to proceed on the footing that the draft plan
after CRZ notification never existed. Even otherwise what
is envisaged under Section 46 of the MRTP Act is due
regard to draft plan only if there is no final plan. The DC
Rules of 1967 were in existence as on 19-2-1991 and G
therefore the plan prepared thereunder would govern the
case.
The draft regulations of 1989 were not in force as on 19-
2-1991 and. therefore. would not apply to the plot in
question. What is emphasised in Section 46 of the MRTP H
522 SUPREME COURT REPORTS (2013] 4 S.C.R.
A Act. 1966 is that the Planning Authority should have due
regard to the draft rules (sic regulations). The legislature
has not used the phrase "must have regard" or "shall have
regard". Municipal Corporation of Greater Mumbai which
is the Planning Authority had given due regard to the draft
B DC Regulations of 1989 in the light of CRZ notification and
recommended to the Government to grant additional FSI
of 3. 73 times permissible as per the Development Control
Rules. 1967 over and above 1.33 permissible. to the
appellants. Having regard to the facts of the case this Court
c is of the opinion that the contention that the Planning
Authoritv has to take into consideration the draft regulations
of 1989 and. therefore. the appellants would not be entitled
to additional FSI. cannot be accepted and is hereby
rejected." ·
D (Emphasis supplied)
36. In view of the aforesaid judgment of the three Judge
Bench, it must be held that the Appellate Authority had rightly
declined to invoke the 1991 Regulations for entertaining the
E prayer made by the architect Shri Jayant Tipnis for regularization
of the constructions made in violation of the sanctioned plan.
37. The argument of Shri Prasad and Dr. Singhvi that the
flat buyers should not be penalized for the illegality committed
by the lessee and the developers/builders in raising
F construction in violation of the sanctioned plan sounds attractive
in the first blush but on a closer scrutiny, we do not find any
merit in the same. Admittedly, the flat buyers had entered into
agreements with the developers/builders much before
commencement of the construction. They were aware of the fact
G that the revised plans submitted by the architect had not been
approved by the Planning Authority and the developers/builders
had foretold them about the consequence of rejection of the
revised plans. Therefore, there is no escape from the
conclusion that the flat buyers had consciously occupied the
H flats illegally constructed by the developers/builders. In this
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 523
CORPORATION OF MUMBAI [G.S. SINGHVI, J.]
scenario, the only remedy available to them is to sue the lessee A
and the developer/builder for return of the money and/or for
damages and they cannot seek a direction for regularization
of the illegal and unauthorized construction made by the
developers/builders.
B
38. We shall now notice the provisions of the 1966 Act.
Section 44(1) of that Act postulates making of an application
to the Planning Authority by any person intending to carry out
any development on any land. Such an application is required
to be made in the prescribed form incorporating therein the C
relevant particulars and must be accompanied by such
documents, as may be prescribed. This requirement is not
applicable if the Central or State Government or local authority
intends to carry out any development on any land. Similarly, a
person intending to execute a Special Township Project on any
land is not required to make an application under Section 44(1). D
Instead, he has to make an application to the State Government.
Section 45 postulates grant or refusal of permission. In terms
of Section 45(1). the Planning Authority is empowered to grant
permission without any condition or with such general or speCial
conditions which may be imposed with the previous approval E
of the State Government. It is also open to the Planning
Authority to refuse the permission. As per Section 45(2) the
permission granted under sub-section (1), with or without
conditions, shall be contained in a commencement certificate
in the prescribed form. Section 45(3) m_andates that the order F
passed by the Planning Authority granting or refusing
permission shall state the grounds for its decision. Section
45(5) contains a deeming provision and lays down that if the
Planning Authority does not communicate its decision within 60
days from the date of receipt of application, or within 60 days G
from the date of receipt of reply from the applicant in respect
of any requisition made by the Planning Authority, then such
permission shall be deemed to have been granted on the date
immediately following the date of expiry of 60 days. However,
the deemed permission is subject to the rider contained in the H
524 SUPREME COURT REPORTS [2013] 4 S.C.R.
A first proviso to Section 45(5) that the development proposal is
in conformity with the relevant Development Control Regulations
framed under the 1966 Act or bye-laws or regulations framed
in that behalf under any law for the time being in force and the
same is not violative of the provisions of any draft or final plan
B or proposals published by means of notice, submitted for
sanction under the Act. The second proviso to this sub-section
lays down that any development carried out pursuant to such
deemed permission, which is in contravention of the provisions
of the first proviso, shall be deemed to be an unauthorized
C development for the purposes of Sections 52 to 57. Section
52 prescribes the penalty for unauthorized development or for
use of land otherwise than in conformity with development plan.
Any person who commences, undertakes or carries out
development, or institutes or changes the use of any land
without obtaining the required permission or acts in violation
0
of the i:-ermission originally granted or duly modified is liable
to be punished with imprisonment for a term of at least one
month, which may extend to three years. He is also liable to
pay fine of at least Rs.2,000/-, which may extend to Rs.
5,0001-. In case of continuing offence, an additional daily fine
E of Rs.200/- is payable. Any person who continues to use or
allows the use of any land or building in contravention of the
provisions of a development plan without being allowed to do
so under Section 45 or 47, or where the continuance of such
use has been allowed under that section, continues such use
F after expiry of the period for which the use has been allowed,
or in violation of the terms and conditions under which the
continuance of such use is allowed is liable to pay fine which
may extend to Rs.5,000/-. In the case of a continuing offence,
further fine of Rs.100/- per day can be imposed. Section 53
G empowers the Planning Authority to require the wrongdoer to
remove unauthorized development. Of course, this power can
be exercised only after following the rules of natural justice, as
engrafted in sub-sections (1) and (2) of Section 53. By virtue
of Section 53(3), any person to whom notice under sub-section
H (2) has been given can apply for permission under Section 44
ESHA EKTA APARTMENTS CHS LIMITED v. _MUN. 525
CORPORATION OF MUMBAI [G.S. SINGHVI, J.]
for retention of any building or works or for the continuance of A
· any use of the land pending final determination or withdrawal
of the application. If the permission applied for is granted, the
notice issued under Section 53(2) stands automatically
withdrawn. If, however, the permission is not granted, the notice
becomes effective. If the person to whom notice under Section B
53(2) is given or the application, if any, made by him is not
entertained, then the Planning Authority can prosecute the
owner for not complying with the notice. Likewise, if the notice
requires the demolition or alteration of any building or works
or carrying out of any building or other operation, then the c
Planning Authority is free to take steps for demolition, etc., and
recover the expenses incurred in this behalf from the owner as
arrears of land revenue. Section 54 empowers the Planning
Authority to stop unauthorized development. Section 55
enables the Planning Authority to remove or dis.::ontinue
0
unauthorized temporary development summarily. Section 56
empowers the Planning Authority to take various steps in the
interest of proper planning of particular areas including the
amenities contemplated by the development plan. These steps
include discontinuance of any use of land or alteration or
E
removal of any building or work.
39. An analysis of the above reproduced provisions makes
it clear that any person who undertakes or carries out
development or changes the use of land without permission of
the Planning Authority is liable to be punished with F
imprisonment. At the same time, the Planning Authority is
empowered to require the owner to restore the land to its
original condition as it existed before the development work was
undertaken. The scheme of these provisions do not mandate
regularization of construction made without obtaining the G
required permission or in violation thereof.
40. Circular dated 4.2.2011, on which reliance was placed
by Shri Prasad, cannot be invoked for entertaining the prayer
for regularization. That circular only contains the procedure for
H
526 SUPREME COURT REPORTS (2013) 4 S.C.R.
A regularization of unauthorized works/structures. It neither deals
with the issues relating to entitlement of the applicant to seek
regularization nor lays down that the Planning Authority can
regularize illegal construction even after dismissal of the appeal
filed under Section 47 of the 1966 Act. Therefore, the
B procedure laid down in Circular dated 4.2.2011 is of no avail
to the flat buyers.
41. Though the argument of Dr. Singhvi that the developers
I builders I promoters are responsible for the illegal construction
C finds support from the provisions of the 1963 Act, but that does
not help the housing societies and their members because
there is no provision under that Act for condonation of illegal/
unauthorized construction by the developers/builders and
promoters or regularization of such construction. Section 2(c)
of that Act defines the term 'promoter' in the following words:
D
"Section 2(c) "promoter" means a person and includes a
partnership firm or a body or association of persons,
whether registered or not who constructs or causes to be
constructed a block or building of flats, or apartments for
E the purpose of selling some or all of them to other persons,
or to a company, co-operative society or other association
of persons, and includes his assignees; and where the
person who builds and the person who sells are different
persons, the term includes both;"
F Section 3 specifies general liabilities of the promoter.
Sub-section (1) thereof contains a non-obstante clause and
declares that notwithstanding anything in any other law, a
promoter who intends to construct or constructs a block or
building of flats, all or some of which are to be taken or taken
G on ownership basis, shall in all transactions with persons
intending to take or taking one or more of such flats, be liable
to give or produce, or cause to be given or produced, the
information and the documents mentioned in the section.
Section 3(2) lays down that a promoter, who constructs or
H intends to construct such block or building of flats, shall -
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 527
CORPORATION OF MUMBAI [G.S. SINGHVI, J.]
"(a) make full and true disclosure of the nature of his title A
to the land on which the flats are constructed, or are to be
constructed; such title to the land as aforesaid having been
duly certified by an Attorney-at-law, or by an Advocate of
not less than three years standing, and having entered in
the Property card or extract of Village Forms V or VII and B
XII or any other relevant revenue record;
(b} make full and true disclosure of all encumbrances on
such land, including any right, title, interest or claim of any
party in or over such land;
c
(c} give inspection on seven days' notice or demand, of
the plans and specifications of the building built or to be
built on the land; such plans and specifications. having
been approved by the local authority which he is required
so to do under any law for the time being in force; D
(d) disclose the nature of fixtures, fittings and amenities
(including the provision for one or more lifts} provided or
to be provided;
(e) disclose on reasonable notice or demand if the E
promoter is himself the builder, the prescribed particulars
as respect the design and the materials to be used in the
construction of the building, and if the promoter is not
himself the builder disclose. on such notice or demand, all
agreements (and where there is no written agreement. the F
details of all agreements) entered into by him with the
architects and contractors regarding the design, materials
and construction of the buildings;
(f) specify in writing the date by which possession of the G
flat is to be handed over (and he shall hand over such
possession accordingly);
(g) prepare and maintain a list of flats with their numbers
already taken or agreed to be taken, and the names and
addresses of the parties and the price charged or agreed H
528 SUPREME COURT REPORTS (2013) 4 S.C.R.
A to be charged therefor, and the terms and conditions if any
on which the flats are taken or agreed to be taken;
(h) state in writing, the precise nature of the organisation
of persons to be constituted and to which title is to be
passed, and the terms and conditions governing such
B
organisation of persons who have taken or are to take the
flats;
(i) not allow persons to enter into possession until a
completion certificate where such certificate is required to
c be given under any law, is duly given by the local authority
(and no person shall take possession of a flat until such
completion certificate has been duly given by the local
authority);
D Q) make a full and true disclosure of all outgoings (including
ground rent, if any, municipal or other local taxes, taxes on
income, water charges and electricity charges, revenue
assessment, interest on any mortgage or other
encumbrances, if any);
E (k) make a full and true disclosure of such other information
and document; in such a manner as may be prescribed;
and give on demand true copies of such of the documents
referred to in any of the clauses of this sub-section as may
be prescribed at a reasonable charge therefor;
F
(I) display or keep all the documents, plans or
specifications (or copies thereof) referred to in clauses (a),
(b) and (c), at the site and permit inspection thereof to
persons intending to take or taking one or more flats;
G (m) when the flats are advertised for sale, disclose inter
alia in the advertisement the following particulars, namely:
(i) the extent of the carpet area of the flat including
H the area of the balconies which should be shown
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 529
CORPORATION OF MUMBAI [GS. SINGHVI, J.]
separately; A
(ii) the price of the flat including the proportionate
price of the .common areas and facilities which
should be shown separately, to be paid by the
purchaser of flat; and the intervals at which the B
installments thereof may be paid;
(iii) the nature, extent and description of the
common areas and facilities; and
(iv) the nature, extent and description of limited C
common areas and facilities, if any.
(n) sell flat on basis of carpet area only:
Provided that, the promoter may separately charge for the
common areas and facilities in proportion 'to the carpet D
area of the flat'.
Explanation - For the purposes of this clause, the carpet
area of the flat shall include the area of the balcony of such
flat." E
Section 4(1) also contains a non-obstante clause and lays
down that a promoter who intends to construct or constructs a
block or building of flats shall, before accepting any money as
advance payment or deposit, which shall not be more than 20
per cent of the sale price, enter into a written agreement for F
sale with the buyer. Section 4(1A) specifies the particulars to
be included in such agreement and the documents which must
form part of it. Section 4(2) casts a duty on the promoter to get
the agreement registered in accordance with the provisions of
the Registration Act, 1908. Section 7 contains a prohibition G
against alterations or additions in the plans and specification
without the consent of the persons who have agreed to take
the flats. The promoter is also required to rectify the defects
noticed within three years. Section 7(2) casts a duty on the
promoter to construct and complete the building in accordance H
530 SUPREME COURT REPORTS [2013] 4 S.C.R.
A with the plans and specifications. Section 13 postulates
punishment to any promoter who is found guilty of violating the
provisions contained in Sections 3, 4, 5 (except sub-section (2))
and 1O and 11 .
42. Rule 3 of the Maharashtra Ownership Flats
8
(Regulations of the Promotion of Construction, etc.) Rules,
1964 lays down the manner of making disclosure by the
promoter to the flat buyers. Rule 5 specifies the particulars to
be incorporated in the agreement required to be entered into
C between the promoter and the flat purchaser. Form V appended
to the rules contains the model form of agreement to be
entered into between promoter and flat purchaser.
43. The above noted provisions were interpreted by this
Court in Jayantilal Investments v. Madhuvihar Cooperative
D Housing Society (2007) 9 SCC 220. After noticing the relevant
statutory provisions the two Judge Bench held:
"Reading the above provisions of MOFA, we are required
to balance the rights of the promoter to make alterations
or additions in the structure of the building in accordance
E
with the layout plan on the one hand vis-a-vis his
obligations to form the society and convey the right, title
and interest in the property to that society. The obligation
of the promoter under MOFA to make true and full
disclosure to the flat takers remains unfettered even after
F the inclusion of Section 7-A in MOFA. That obligation
remains unfettered even after the amendment made in
Section 7(1 )(ii) of MOFA. That obligation is strengthened
by insertion of sub-section (1-A) in Section 4 of MOFA by
Maharashtra Amendment Act 36 of 1986. Therefore, every
G agreement between the promoter and the flat taker shall
comply with the prescribed Form V. It may be noted that,
in that prescribed form, there is an explanatory note which
inter alia states that clauses 3 and 4 shall be statutory and
shall be retained. It shows the intention of the legislature.
H Note 1 clarifies that a model form of agreement has been
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 531
CORPORATION OF MUMBAI [G.S. SINGHVI, J.]
prescribed which could be modified and adapted in each A
case depending upon the facts and circumstances of each
case but, in any event, certain clauses including clauses
3 and 4 shall be treated as statutory and mandatory and
shall be retained in each and every individual agreements
between the promoter and the flat taker. Clauses 3 and 4 B
of the Form V of the Maharashtra Ownership Flats
(Regulation of the Promotion of Construction, etc.) Rules,
1964 are quoted hereinbelow:
"3. The promoter hereby agrees to observe,
perform and comply with all the terms, conditions, C
stipulations and restrictions, if any, which may have
been imposed by the local authority concerned at
the time of sanctioning the said plans or thereafter
and shall, before handing over possession of the
flat to the flat purchaser, obtain from the local D
authority concerned occupation and/or completion
certificates in respect of the flat.
4. The promoter hereby declares. that the floor
space index available in respect of the said land E
is ... square metres only and that no part of the said
floor space index has been utilised by the promoter
elsewhere for any purpose whatsoever. In case the
said floor space index has been utilised by the
promoter elsewhere, then the promoter shall furnish F
to the flat purchaser all the detailed particulars in
respect of such utilisation of said floor space index
by him. In case while developing the said land the
promoter has utilised any floor space index of any
other land or property by way of floating floor space G
index, then the particulars of such floor space index
shall be disclosed by the promoter to the flat
purchaser. The residual FAR (FSI) in the plot or the
layout not consumed will be available to the
promoter till the registration of the society. Whereas
H
532 SUPREME COURT REPORTS (2013] 4 S.C.R.
A after the registration of the society the residual FAR
(FSI), shall be available to the society."
The above clauses 3 and 4 are declared to be statutory
and mandatory by the legislature because the promoter is
not only obliged statutorily to give the particulars of the land,
B
amenities, facilities, etc., he is also obliged to make full
and true disclosure of the development potentiality of the
plot which is the subject-matter of the agreement. The
promoter is not only required to make disclosure
concerning the inherent FSI, he is also required at the stage
c of layout plan to declare whether the plot in question in
future is capable of being loaded with additional FSI/
floating FSl!TDR. In other words, at the time of execution
of the agreement with the flat takers the promoter is
obliged statutorily to place before the flat takers the entire
D project/scheme, be it a one-building scheme or multiple
number of buildings scheme. Clause 4 shows the effect
of the formation of the Society.
In our view, the above condition of true and full disclosure
E flows from the obligation of the promoter under MOFA vide
Sections 3 and 4 and Form V which prescribes the form
of agreement to the extent indicated above. This obligation
remains unfettered because the concept of developability
has to be harmoniously read with the concept of
registration of society and conveyance of title. Once the
F
entire project is placed before the flat takers at the time
of the agreement, then the promoter is not required to
obtain prior consent of the flat takers as long as the builder
puts up additional construction in accordance with the
layout plan, building rules and Development Control
G Regulations, etc."
44. It is thus evident that the 1963 Act obligates the
promoter to obtain sanctions and approvals from the concerned
authority and disclose the same to the flat buyers. The Act also
H provides for imposition of penalty on the promoters. However,
ESHA EKTA APARTMENTS CHS LIMITED v. MUN. 533
CORPORATION OF MUMBAI [G.S. SINGHVI, J.]
the provisions contained therein do not entitle the flat buyers A
to seek a mandamus for regularization of the unauthorized/
illegal construction.
45. In view of the above discussion, we hold that the
petitioners in the transferred case have failed to make out a 8
case for directing the respondents to regularize the construction
made in violation of the sanctioned plan. Rather, the ratio of
the above-noted judgments and, in particular, Royal Paradise
Hotel (P) Ltd. v. State of Haryana and Ors. (supra) is clearly
attracted in the present case. We would like to reiterate that C
no authority administering municipal laws and other similar laws
can encourage violation of the sanctioned plan. The Courts are
also expected to refrain from exercising equitable jurisdiction
for regularization of illegal and unauthorized constructions else
it would encourage violators of the planning laws and destroy
the very idea and concept of planned development of urban as D
well as rural areas.
46. In the result, the appeals and the transferred case are
dismissed and it is declared that there is no impediment in the
implementation of notices issued by the Corporation under E
Section 351 of the 1888 Act and order dated 3/8.12.2005
passed by the competent authority. The Corporation is expected
to take action in the matter at the earliest.
47. We also direct that the State Government and its
F
functionaries/officers as also the officers/employees of the
Corporation shall not put any hurdle or obstacle in the
implementation of notices issued under Section 351 of the
1888 Act.
48. It is needless to say that the flat buyers shall be free to G
avail appropriate remedy against the developers/builders.
B.B.B. Appeals & Transferred Case dismissed.
H
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