Case Note & Summary
The dispute arose from a notice dated 7th February 1998 issued by the Municipal Corporation of Greater Bombay under Section 354A of the Mumbai Municipal Corporation Act, 1888 for demolition of Building No.4 situated on CTS No.261, Village Dahisar, Borivali. The plaintiffs, a developer firm, had obtained approval for the layout and sanction for construction of stilt plus 21 floors in 1992 after submitting plans in 1989 and complying with conditions including construction of a bridge. The plaintiffs constructed the building beyond plinth level without obtaining the requisite plinth completion certificate, but later claimed to have tendered regularisation charges under the Corporation's circular CHE/4808/DPC dated 13.3.1996. The Corporation instead issued a notice under Section 53(1) of the MRTP Act, 1966 on 16.10.2000 alleging construction not in accordance with permission. The plaintiffs filed L.C. Suit No.2450 of 2003 seeking perpetual injunction against demolition and a declaration that the property is not affected by Coastal Zone Regulation. The trial court, after framing issues, held that the property is situated within the Coastal Regulation Zone, thus the plaintiffs are not entitled to completion and occupation certificates. However, it also found that the construction was carried out as per the sanctioned plan and was not unauthorised, thereby granting a perpetual injunction only to the extent of the notice dated 7.2.1998. Both parties appealed. The plaintiffs in First Appeal No.849 of 2019 challenged the finding on CRZ and the refusal to direct issue of completion/occupation certificate. The Corporation in First Appeal No.165 of 2015 challenged the injunction restraining demolition. The High Court heard both appeals together. The plaintiffs argued that they had all necessary sanctions, had paid regularisation charges, and that the Corporation had admitted approval of the plans; they contended the property was not in CRZ and that the completion certificate should be issued. The Corporation opposed the reliefs. After hearing arguments on 26.9.2019, the High Court reserved judgment and pronounced it on 15.11.2019. The final operative part is not included in the provided extract, but the trial court's partial decree stands as the basis for the cross-appeals.
Headnote
A) Municipal Law - Demolition under Section 354A of Mumbai Municipal Corporation Act, 1888 - Construction carried out as per sanctioned plan - Trial court held that building no.4 constructed as per sanctioned layout/plan is not unauthorised construction, and restrained defendants from taking steps under demolition notice dated 7.2.1998 - Held that plaintiff entitled to perpetual injunction only to the extent of the said notice (Paras 6-7).
B) Environmental Law - Coastal Regulation Zone - Construction in CRZ area - Requirement of compliance with CRZ norms for completion certificate - Trial court found suit property situated within CRZ, therefore plaintiff not entitled to completion and occupation certificate despite development permission - Held that sanction of plan by Corporation cannot override CRZ prohibition (Paras 6-7).
C) Municipal Law - Compounding of Building Offences - Circular CHE/4808/DPC dated 13.3.1996 - Guidelines for levy of regularisation charges for work done without proper approval but otherwise conforming to Development Control Regulations - Plaintiffs claimed tender of regularisation charges for work beyond plinth level without plinth completion certificate - Corporation issued notice under Section 53(1) of MRTP Act, 1966 instead - Relevance of regularisation policy in issuance of completion certificate (Paras 10-11).
Issue of Consideration
1) Whether the suit property is situate within Coastal Regulation Zone? 2) Whether the sanction of layout/plan by the Corporation in ignorance of CRZ provisions can be enforced? 3) Whether the defendants breached the plaintiff's rights? 4) Whether the plaintiff is entitled to perpetual injunction against the demolition notice under Section 354A of the Mumbai Municipal Corporation Act, 1888 and to a direction for completion/occupation certificate?
Law Points
- Section 354A of Mumbai Municipal Corporation Act
- 1888 - demolition of unlawful construction
- Section 337 - sanction of building plans
- Coastal Zone Regulation - construction restrictions
- Completion and occupation certificates - requirement
- Compounding of offences under circular CHE/4808/DPC dated 13.3.1996
- Urban Land (Ceiling and Regulation) Act
- 1976 - weaker section development
Case Details
2019 LawText (BOM) (11) 92
First Appeal No.165 of 2015 with First Appeal No.849 of 2019
B.M. Chatterji, Vishesh Srivastav, Kavita Singh for MCGM; S.U. Kamdar, Vatsal Merchant, Abhishek Bhadang, Sharad Wakchoure for developer
The Municipal Commissioner of Municipal Corporation of Greater Bombay and Anr. (in FA 165/2015) and M/s.Vardhman & Hiranandani Developers (in FA 849/2019)
M/s.Vardhman & Hiranandani Developers (in FA 165/2015) and The Municipal Commissioner of Municipal Corporation of Greater Bombay and Anr. (in FA 849/2019)
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Nature of Litigation
Civil suit for permanent injunction against demolition notice under Section 354A of the Mumbai Municipal Corporation Act, 1888, and for declaration that the property is not affected by Coastal Zone Regulation.
Remedy Sought
Plaintiffs sought injunction restraining the Municipal Corporation from taking any steps under the demolition notice dated 7.2.1998, and a declaration that the suit property (CTS No.261, Village Dahisar) is not in the Coastal Regulation Zone, thereby entitling them to completion and occupation certificates.
Filing Reason
The Municipal Corporation issued a notice under Section 354A on 7.2.1998 for demolition of Building No.4, alleging unauthorised construction. The plaintiffs contended that the construction was as per the sanctioned plan and that the property is not in CRZ.
Previous Decisions
The Bombay City Civil Court at Dindoshi passed a judgment and decree on 17.6.2014 in L.C. Suit No.2450 of 2003, holding: (i) suit property is in Coastal Regulation Zone, hence plaintiffs are not entitled to completion/occupation certificate; (ii) construction is not unauthorised as it conforms to the sanctioned layout, thus granting perpetual injunction only against the demolition notice dated 7.2.1998.
Issues
Whether the suit property falls within the Coastal Regulation Zone and thereby in a non-residential zone?
Whether the sanction of layout/plan for stilt plus 21 floor building by the Corporation, ignoring Coastal Regulation Zone provisions, can be enforced?
Whether the defendants breached the plaintiff's rights in respect of Building No.4?
Whether the plaintiff is entitled to a decree of perpetual and mandatory injunction?
Whether the plaintiffs are entitled to completion and occupation certificates despite the property being in CRZ?
Submissions/Arguments
Plaintiffs argued that the State Government approved development for weaker section under Urban Land (Ceiling and Regulation) Act, 1976 in 1988.
Plaintiffs submitted layout for sanction and IOD under Section 337 of MMC Act on 7.8.1989, and after compliance, the Corporation approved plans and issued IOD for Building No.4 on 14.3.1992.
Construction was carried out as per the sanctioned plan, and the Corporation admitted approval in letter dated 24.8.1998 (Exhibit 18).
Upon completing construction, plaintiffs applied for completion/occupation certificate and tendered regularisation charges as per circular CHE/4808/DPC dated 13.3.1996 for work done beyond plinth level without plinth completion certificate.
Instead of issuing certificates, the Corporation issued a notice under Section 53(1) of MRTP Act, 1966 on 16.10.2000, which was arbitrary and illegal.
Judgment Excerpts
the Defendants, their servants and agents be restrained by a permanent order and injunction of this Hon’ble Court from taking any steps under the said impugned notice dated 7th February, 1998
it may be declared that the property on which the Suit Building No.4 which is constructed by the Plaintiffs is not affected by the Coastal Zone Regulation.
the amended plans submitted by you for stilt +21 upper floors are approved however, the same are not issued for non payment of requisite fees
Work done without and work is not approvable case of regularisation beyond approvable. Not to be regularised and demolition action be taken.
Procedural History
1988: State Government approved development for weaker section under ULC Act. 1989: Plaintiffs submitted layout application for sanction under Section 337 of MMC Act. 1992: Corporation approved plans and issued IOD for Building No.4. 1998: Corporation issued notice under Section 354A for demolition of Building No.4. 2003: Plaintiffs filed L.C. Suit No.2450 of 2003. 2014: Trial court passed judgment partly decreeing suit. 2015: Corporation filed First Appeal No.165 of 2015. 2019: Plaintiffs filed First Appeal No.849 of 2019. 26.9.2019: High Court reserved judgment. 15.11.2019: High Court pronounced judgment.
Acts & Sections
- Mumbai Municipal Corporation Act, 1888: 354A, 337
- Urban Land (Ceiling and Regulation) Act, 1976:
- Maharashtra Regional and Town Planning Act, 1966: 53(1)
