Case Note & Summary
This incomplete judgment text of the High Court of Judicature at Bombay, Ordinary Original Civil Jurisdiction, concerns two petitions: Public Interest Litigation No. 94 of 2008 filed by Amit Maru and Arun Nathuram Gaikwad, and Writ Petition No. 2443 of 2008 filed by M/s. D.B.S. Realty. Both petitions challenged notifications issued by the State of Maharashtra under the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act) that increased the Floor Space Index (FSI) in the suburbs and extended suburbs of Mumbai from 1 to 1.33. The petitioners contended that FSI is a part of the development plan prepared under Section 22 of the MRTP Act, and Section 37 permits only minor modifications. The increase from 1 to 1.33 was alleged to be a major modification that could not be effected without preparing a fresh development plan. The petitioners argued that the process was tainted by arbitrariness, undue haste, and lack of proper environmental impact assessment, thereby violating the fundamental rights to equality (Article 14) and right to life and environment (Article 21) of the Constitution of India. The petitions were originally filed against the initial notification dated 10.4.2008 under Section 37(1) read with Section 154 of the MRTP Act, subsequently amended to challenge the notification dated 11.7.2008 issued under Section 37(1A) after the Municipal Corporation failed to publish a notice within 90 days, and finally amended to impugn the final notification dated 3.10.2008 under Section 37(2) which sanctioned the amendment to Development Control Regulation 32. The petitioners highlighted that the existing FSI could reach up to 2 through the use of Transferable Development Rights (TDR), and that the increase to 1.33 did not account for the overall built-up area and infrastructure. They also argued that the premium charged for the additional 0.33 FSI was a colourable exercise of power and not authorized by the MRTP Act. The respondent State defended its actions, but the text does not contain the State's submissions or the court's analysis after the arguments. The Supreme Court had directed expeditious disposal of the petitions. On June 10, 2010, the High Court issued rule in both petitions, respondents waived service, and with consent, the petitions were heard and finally disposed of. However, the judgment text as provided ends abruptly in the middle of paragraph 12, before any findings, reasoning, or operative directions could be recorded. Therefore, the outcome of the challenges to the notifications and the ultimate decision of the court remain unavailable in the supplied text.
Issue of Consideration
Whether the increase of Floor Space Index (FSI) from 1 to 1.33 in the suburbs and extended suburbs of Mumbai through notifications under Section 37 of the Maharashtra Regional and Town Planning Act, 1966 is valid, and whether such modification is a major modification not permissible under Section 37, and whether the notifications violate Articles 14 and 21 of the Constitution of India
Law Points
- FSI increase amounts to major modification
- Section 37 MRTP Act allows only minor modifications
- TDR and FSI relationship
- Article 14 and 21 violations
- premium for FSI ultra vires
- environmental impact not considered
Case Details
2010 LawText (BOM) (06) 87
Public Interest Litigation No. 94 of 2008 and Writ Petition No. 2443 of 2008
Ferdino I. Rebello, A.A. Sayed
Mukul Rohatgi, Mahesh Agarwal, Kiran Bhalerao, D.D. Madon, C.S. Balsara, Mohamed Himayatulla, Ravi Kadam, D.A. Nalawade, N.P. Deshpande, K.K. Singhvi, S.A. Module, Janak Dwarkadas, Pravin Samdani, Rahul Dwarkadas, Nevelle Mukherji, Brigitta John, Rhea Marshal, Yogesh Adhia, Robert C. Sequeira
Amit Maru, Arun Nathuram Gaikwad, M/s. D.B.S. Realty
State of Maharashtra, Commissioner, Municipal Corporation of Greater Mumbai
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Public Interest Litigation and Writ Petition challenging notifications that increased Floor Space Index in Mumbai suburbs from 1 to 1.33 under the Maharashtra Regional and Town Planning Act, 1966.
Remedy Sought
Petitioners sought quashing of notifications dated 10.4.2008, 11.7.2008, and 3.10.2008, and a declaration that the increase of FSI is ultra vires the MRTP Act and violative of Articles 14 and 21 of the Constitution.
Filing Reason
The State Government, in purported exercise of powers under Section 37 of the MRTP Act, issued notifications modifying Development Control Regulation 32 to increase FSI from 1 to 1.33, allegedly without proper infrastructure planning, environmental study, or legal authority, and with undue haste.
Issues
Whether the increase of Floor Space Index from 1 to 1.33 in the suburbs and extended suburbs of Mumbai under Section 37 of the MRTP Act constitutes a major modification that cannot be effected without preparing a fresh development plan.
Whether the notifications violate Article 14 of the Constitution of India on the ground of arbitrariness and unreasonableness.
Whether the increase in FSI without adequate environmental impact assessment and infrastructure planning infringes the right to life and environment under Article 21 of the Constitution.
Whether the State Government has the power under Section 154 of the MRTP Act to charge premium for the sale of additional FSI.
Submissions/Arguments
Petitioners argued that FSI is an integral part of the development plan under Section 22 of the MRTP Act, and Section 37 permits only minor modifications; increasing FSI from 1 to 1.33 is a major change that alters the character of the plan and is ultra vires.
The impugned notifications were issued in undue haste, with a predetermined mind, and without proper consideration of objections, thereby violating Article 14 and the principles of natural justice.
The absence of an Environmental Impact Assessment or study before increasing FSI, which would burden Mumbai's already overstretched infrastructure, violates the right to life and environment under Article 21.
The premium charged for the additional 0.33 FSI is a colourable exercise of power and not authorized by the MRTP Act; revenue generation cannot be a ground for altering the development plan.
The process of inviting suggestions and objections under Section 37(1A) was an empty formality, as the State already had a predetermined decision.
The increase in FSI disregards the existing availability of Transferable Development Rights (TDR) which can already take FSI up to 2, and thus the increase from 1 to 1.33 does not ensure proper utilization of TDR or infrastructure planning.
Judgment Excerpts
By the impugned notification the Floor Space Index (FSI) in the suburbs and extended suburbs of Mumbai has been increased on the respective plots from 1 to 1.33.
The increase of FSI from 1 to 1.33 amounts to a major modification which can only be done if the entire development plan is prepared afresh.
The notification dated 3.10.2008 is violative of Article 14 of the Constitution of India.
Infrastructure, basic amenities such as roads, recreation grounds, gardens and other civil facilities are the right of every individual in the country which right is enshrined under Article 21 of the Constitution of India.
Procedural History
PIL No. 94 of 2008 was filed to impugn notification dated 10.4.2008 under Section 37(1) of MRTP Act. The State issued notification dated 11.7.2008 under Section 37(1A), and the petition was amended to challenge it. Final notification dated 3.10.2008 under Section 37(2) was issued, and the petition was further amended. The Supreme Court directed expeditious disposal. The High Court heard the petitions and issued rule on 10.6.2010, but the text does not include the final order.
Acts & Sections
- Maharashtra Regional and Town Planning Act, 1966: Section 22, Section 37(1), Section 37(1A), Section 37(2), Section 154, Section 162
- Development Control Regulations for Maharashtra, 1991: Regulation 32
- Constitution of India: Article 14, Article 21
- Indian Partnership Act, 1932:
