Case Note & Summary
The case arose from a public interest litigation filed under Article 226 of the Constitution of India before the High Court of Judicature at Bombay. The petitioner, an active member of several non-governmental organisations involved in environmental protection and compliance with planning laws, challenged permissions granted by the Urban Development Department, the Mira Bhayandar Municipal Corporation, and the Assistant Director, Town Planning Department, in favour of a private company for construction of a star grade hotel on a plot of land falling within a No Development Zone. The petitioner alleged that the permissions were issued in utter disregard of the Development Control Regulations for the Corporation and against public interest, and sought quashing of the approvals as well as demolition of the construction. On February 15, 2008, the company's authorised representative applied for non-agricultural permission in respect of land bearing old Survey Nos. 265/4, 266/2, 3, 5, 6 and 267/3 of Village Navghar admeasuring 11,170 sq. mtrs. The Corporation on February 16, 2008 permitted the company to apply to the Collector, and the Collector granted non-agricultural permission by order dated April 9, 2008. Subsequently, on October 30, 2015, the company applied for a commencement certificate; the Corporation issued commencement certificate dated November 19, 2015 for construction of a gymnasium plus club house with basement, ground and one upper floor. The plot was stated to fall in No Development Zone and to be affected by a 30-metre DP road and Coastal Regulatory Zone. The Corporation in its letter dated July 7, 2016 to the Urban Development Department noted FSI of 1.0 permissible for residential users in No Development Zone. The Town Planning and Valuation Department on September 23, 2016 observed that an identical proposal for a hotel with 1.0 FSI had been rejected earlier by the State Government on May 31, 2008. On January 21, 2017, the company sought approval of a revised plan, and the Corporation issued a fresh commencement certificate on February 18, 2017, with Clause 36 requiring non-agricultural permission before construction. On March 22, 2018 the company sought additional FSI for constructing a star grade hotel based on a Government Notification dated August 25, 2000. The Urban Development Department by letter dated April 13, 2018 approved the proposal, stating such user was permissible for a project abutting National Highway/State Highway. The Corporation on September 5, 2018 informed the UDD of area calculations and FSI bifurcation. On November 23, 2020, the petitioner issued an advocate's notice objecting to the hotel permission, and the Corporation replied on December 2, 2020 that additional FSI was granted by charging premium. The core legal issues included whether the plot fell in No Development Zone and the permissions violated DCRs; whether UDD had authority to approve additional FSI of 1.0 by charging premium; whether building permissions had to be tested under bye-laws existing at the time of permission, not the UDCR effective from December 2, 2020; and whether the PIL was maintainable. The petitioner argued that the grant of FSI 1.0 was without authority, the 2000 notification was inapplicable, and relied on provisions including DCR 51(7)(vii), 57(xiii)(a) to (d), 59(3) and Section 31(1) of the MRTP Act, as well as case law on maintainability and the applicable law at the time of grant. The State, through the Joint Director of Town Planning, contended that the development plan and DCRs had been duly sanctioned under Section 31(1) of the MRTP Act; that the subject land was shown in No Development Zone as per the 2000 notification; that Regulation 59(3) empowered the State Government to interpret the Regulations and its decision was final; and that Regulation 57 and DCR 51(7)(vii) permitted star category hotels in residential zones. The High Court heard the matter on March 21, 2022 and pronounced judgment on September 29, 2022. The available extracted text ends during the submissions on behalf of the State; no detailed court analysis, final decision, or operative directions are included in the provided excerpt.
Headnote
A) Public Interest Litigation - Maintainability - Article 226 Constitution of India - PIL filed by active member of NGOs challenging planning permissions; maintainability argued by relying on Rajendra Thacker that absence of mischievous intention supports PIL; no final ruling in available text (Paras 3,5). B) Town Planning - No Development Zone - Development Control Regulations Regulation 57(xiii)(a)-(d), Maharashtra Regional and Town Planning Act 1966 Section 31(1) - Plot claimed in NDZ but State relied on sanctioned development plan; whether hotel permission on NDZ land valid was core dispute; no final ruling in excerpt (Paras 4,6). C) Building Permissions - Additional FSI - DCR 51(7)(vii), 59(3), Government Notification August 25, 2000 - Grant of FSI 1.0 by charging premium challenged as without authority; State contended notification and DCR provisions permit star hotels; UDD letter dated 13 April 2018 relied upon; court to examine validity; no final holding in available text (Paras 5,6). D) Applicability of UDCR - Building permission date principle - T. Vijayalakshmi, R. Satyanarayana - Permissions to be tested under bye-laws in force at time of grant, not UDCR effective Dec 2, 2020; party argued as part OC already issued; no final determination (Para 5).
Issue of Consideration
Whether permissions and commencement certificates for construction of a star grade hotel on a plot falling in No Development Zone were illegal, without authority, and contrary to DCRs and MRTP Act; whether UDD communication dated 13 April 2018 was valid; whether additional FSI of 1.0 could be granted by charging premium.
Law Points
- Public interest litigation maintainability where no mischievous intention
- building permissions to be decided in accordance with law applicable on day permission granted
- bye-law violation adjudged with respect to time of construction
- State Government empowered to interpret DCRs under Regulation 59(3)
- no development zone restrictions under DCR 57
- star hotels in residential zones under DCR 51(7)(vii)
- writ of certiorari and mandamus under Article 226.
