Case Note & Summary
The petitioner, M/s. Shakti Commercial Premises Society Ltd., a cooperative society registered under the Maharashtra Coop. Societies Act, 1960, filed a writ petition under Article 226 of the Constitution of India challenging the decision of Respondent No. 2, City and Industrial Development Corporation (CIDCO), declining to grant a No-Objection Certificate (NOC) for additional 100% Floor Space Index (FSI) over the basic FSI of 1.5 already available on Plot No. 1A in Sector 19D, Vashi, Navi Mumbai. The petitioner had applied for allotment of 32 shops, 3 offices, and 1 canteen on the said land in November 2003, and CIDCO issued separate letters of allotment. Subsequently, the petitioner applied on 16th November 2004 for permission to use the units for commercial purposes and for grant of unconsumed FSI based on the General Development Control Regulations (GDCR) of the Navi Mumbai Municipal Corporation (NMMC), sanctioned by the State Government vide Notification dated 27th May 2004. CIDCO's Board of Directors, by Resolution No. 9142 dated 23rd December 2004, accepted the request and granted approval for allotment of balance unconsumed FSI and NOC for change of user from existing shops and godown to general commercial use, subject to NMMC's approval. However, when the petitioner later sought additional FSI for development of proposed IT/ITES use, relying on the Government order dated 31st August 2009 which enabled NMMC to permit additional FSI for IT/ITES development, CIDCO refused to grant the NOC. The petitioner argued that the Government order was binding on CIDCO and that the refusal was arbitrary. The respondents contended that CIDCO, as the planning authority, had the discretion to grant or refuse NOC and that the Government order did not mandate automatic grant. The court analyzed the Government order and found that it was issued under Section 154 of the Maharashtra Regional and Town Planning Act, 1966, and was binding on all planning authorities, including CIDCO. The court held that CIDCO's refusal was not based on any valid ground under the order and was therefore arbitrary and unsustainable. The court allowed the petition, quashed CIDCO's decision, and directed CIDCO to grant the NOC for additional FSI for IT/ITES use within four weeks, subject to compliance with other requirements.
Headnote
A) Constitutional Law - Writ Jurisdiction - Article 226 of Constitution of India - Government Order Binding on Planning Authority - The petitioner sought a writ against CIDCO's refusal to grant NOC for additional FSI for IT/ITES use. The court held that the Government order dated 31st August 2009 is binding on CIDCO as a planning authority and CIDCO cannot refuse NOC on grounds not stipulated in the order. (Paras 3-26) B) Town Planning - Additional FSI - IT/ITES Development - Government Order dated 31st August 2009 - The Government order permitted additional 100% FSI over basic FSI of 1.5 for IT/ITES development in Navi Mumbai. The court held that the petitioner's proposal for IT/ITES use falls within the ambit of the order and CIDCO's refusal was arbitrary. (Paras 7-20) C) Cooperative Societies - Allotment of Units - Change of User - The petitioner-Society had been allotted units for commercial use and had applied for additional FSI. The court noted that CIDCO had earlier granted approval for change of user to general commercial use, and the subsequent refusal for additional FSI was inconsistent. (Paras 4-6)
Issue of Consideration
Whether CIDCO's refusal to grant No-Objection Certificate for additional 100% FSI over basic FSI of 1.5 for proposed IT/ITES development on the subject land is valid, despite the Government order dated 31st August 2009 enabling such additional FSI.
Final Decision
The court allowed the writ petition, quashed CIDCO's decision refusing to grant NOC, and directed CIDCO to grant NOC for additional 100% FSI for IT/ITES development within four weeks, subject to compliance with other requirements.
Law Points
- Government order binding on planning authority
- Additional FSI for IT/ITES
- Change of user
- Unconsumed FSI
- Article 226 of Constitution of India
