Bombay High Court Quashes BMC Order Restricting Developer to G+4 Floors for Public Parking Lot, Finds Construction Substantially Progressed Under Section 51 MRTP Act. Court Holds Protection Under Proviso to Section 51(1) Available Once Operations Have Substantially Progressed, Not Just Substantially Completed.

Case Note & Summary

The dispute arose from a development project on plot bearing Final Plot No. 46 of Town Planning Scheme-III at Shivaji Park, Mumbai, owned by Kohinoor CTNL Infrastructure Company Private Limited. The developers proposed a highrise IT Park, residential and public parking building comprising three wings. Wing-C was to include municipal public parking on ground plus thirteen floors and residential units above. The Municipal Corporation of Greater Mumbai (MCGM) sanctioned plans and issued an IOD in 2006, and commencement certificates were issued up to the fourteenth floor. The state government granted in-principle approval for the public parking lot under DCR 33(24) in 2010. Later, the state directed the MCGM to propose amendments to DCR 33(24) to limit parking towers to ground plus four floors. On 22 June 2011, MCGM issued a circular incorporating such conditions and directed that all proposals be considered subject to them. Subsequently, on 29 November 2011, a show cause notice under Section 51 of the MRTP Act was issued to the petitioners, calling upon them to explain why the commencement certificate should not be revoked based on the circular. The petitioners replied, but on 22 December 2011, a stop work notice was served, directing restriction of work to the fourth floor. The Additional Municipal Commissioner passed an order on 27 April 2012. Finding that construction had progressed substantially on the core portion—about fifty percent beyond the stage of being termed 'substantially completed'—the order allowed the already executed construction on that portion but directed that in the remaining portion, the public parking lot be limited to ground plus four floors and plans be modified accordingly. The petitioners filed a writ petition under Article 226, contending that the order misapplied Section 51, as the proviso protects operations that have substantially progressed, and once substantial progress was found, no restrictive order could be passed. They also pointed to the huge expenditure incurred in building foundations for the full sanctioned height. MCGM argued that the circular and proposed amendments to DCR 33(24) were intended to ensure usability of parking facilities and that only partial work had been done, justifying the restriction. The court analyzed Section 51(1) proviso, which in clause (a) protects operations previously carried out and prohibitions orders being passed after operations have substantially progressed or been completed. The court emphasized that 'substantially progressed' is distinct from 'completed' and does not mean merely 'substantially completed'. The Additional Municipal Commissioner had applied an erroneous test, treating the question as one of substantial completion. Given the finding that fifty percent of the area had construction beyond the substantial stage, the direction to restrict to G+4 was illegal. The court also noted that MCGM could not rely on a circular reflecting draft amendments not yet finalized, particularly after representing in earlier court proceedings that it would not apply such circular. Consequently, the writ petition was allowed. The impugned order insofar as it restricted the parking lot to G+4 and directed plan modification was quashed. The stop work notice and related impounding of plans were set aside. The petitioners were held entitled to proceed with construction of the public parking lot comprising ground plus thirteen floors as per originally sanctioned plans. MCGM was directed to approve revised plans within four weeks. No costs were awarded.

Headnote

Issue of Consideration

Final Decision

The petition is allowed. The impugned order dated 27 April 2012 to the extent it directs the petitioner to restrict the public parking lot to G+4 floors and to modify plans is quashed and set aside. The stop work notice is quashed. The petitioner is entitled to proceed with construction of G+13 floors for public parking lot as per original sanctioned plans. The Municipal Corporation is directed to approve revised plans within 4 weeks. No order as to costs.

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