Case Note & Summary
The petitioners, M/s Aarts Module International Pvt. Ltd. and another, filed a writ petition challenging clause 4 of Appendix III of Regulation 33(7) of the Development Control Regulations for Greater Mumbai, 1991. The land in question, C.S. no.1/104 of Dadar Naigaum Division, admeasuring 1474.92 sq.mtrs., was reserved for a municipal market. In 1981, the petitioners obtained permission to construct a municipal market of 636.37 sq.mtrs. on the ground floor, to be handed over to the Municipal Corporation free of cost. Subsequently, the petitioners obtained a No Objection Certificate (NOC) dated 19 December 2003 from respondent no.1 Board, which included condition no.12 requiring surrender of 907.03 sq.mtrs. as surplus area under DCR 33(7). The petitioners contended that the surplus area should be reduced by the 636.37 sq.mtrs. of market area already constructed. The court noted that all other contentions had been rejected in a previous judgment dated 7 May 2015 in M/s J. Gala Builders v. Mumbai Building Repairs and Reconstruction Board. The only remaining issue was the calculation of surplus area. The court held that the market area was already constructed and handed over to the Municipal Corporation free of cost, and the surrender condition under DCR 33(7) was an independent obligation. Therefore, the petitioners were not entitled to deduct the market area from the surplus area. The petition was dismissed, and the petitioners were directed to surrender 907.03 sq.mtrs. as per the NOC condition.
Headnote
A) Development Control Regulations - Surrender of Land - DCR 33(7) Appendix III clause 4 - Surplus Area Calculation - Petitioners challenged the quantum of land to be surrendered under clause 4 of Appendix III to DCR 33(7) of the Development Control Regulations for Greater Mumbai, 1991 - The court held that the petitioners were not entitled to deduct the municipal market area from the surplus area to be surrendered, as the market area was already constructed and handed over to the Municipal Corporation free of cost, and the surrender condition was independent of that obligation - Held that the petitioners must surrender 907.03 sq.mtrs. as per the NOC condition (Paras 3-6).
Issue of Consideration
Whether the petitioners are liable to surrender 907.03 sq.mtrs. as per condition no.12 in the NOC dated 19 December 2003, or whether the surplus to be surrendered should be reduced by 636.37 sq.mtrs. of municipal market area.
Final Decision
The petition is dismissed. The petitioners are directed to surrender 907.03 sq.mtrs. as per condition no.12 of the NOC dated 19 December 2003.
Law Points
- Development Control Regulations
- Surrender of land
- Municipal market reservation
- DCR 33(7) Appendix III clause 4
- Surplus area calculation
Case Details
2015 LawText (BOM) (06) 44
Writ Petition No. 950 of 2012
Mohit S. Shah, C.J., A.K. Menon, J.
Mr. Sanjay Kadam with Ms. Aieksha Sharma i/b. Kadam & Co. for the petitioners; Ms. P.D. Ankalesaria, Senior Advocate with Ms. Aparna Murlidharan for the respondent – MHADA; Ms. T.H. Puranik for the respondent – BMC; Mr. G.W. Mattos, A.G.P. for respondent no.4 – State
M/s Aarts Module International Pvt. Ltd. and Anr.
Mumbai Building Repairs and Reconstruction Board & Ors.
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Nature of Litigation
Writ petition challenging clause 4 of Appendix III of Regulation 33(7) of the Development Control Regulations for Greater Mumbai, 1991, and the quantum of land to be surrendered.
Remedy Sought
Petitioners sought to reduce the surplus area to be surrendered by 636.37 sq.mtrs. of municipal market area.
Filing Reason
Petitioners disputed the calculation of surplus area to be surrendered under condition no.12 of NOC dated 19 December 2003.
Previous Decisions
This Court in judgment dated 7 May 2015 in Writ Petition No.2359 of 2011 (M/s J. Gala Builders v. Mumbai Building Repairs and Reconstruction Board) rejected all contentions except the alternative contention regarding calculation of surplus area.
Issues
Whether the petitioners are liable to surrender 907.03 sq.mtrs. as per condition no.12 in the NOC dated 19 December 2003.
Whether the surplus to be surrendered should be reduced by 636.37 sq.mtrs. of municipal market area.
Submissions/Arguments
Petitioners argued that the surplus area to be surrendered should be 907.03 sq.mtrs. minus 636.37 sq.mtrs. of municipal market area.
Respondents contended that the market area was already constructed and handed over free of cost, and the surrender condition under DCR 33(7) was independent.
Ratio Decidendi
The surrender of land under clause 4 of Appendix III to DCR 33(7) is an independent obligation and not reduced by the area already constructed and handed over to the Municipal Corporation free of cost for a municipal market.
Judgment Excerpts
The only contention, which now remains, is the petitioners' alternative contention that even if clause 4 of Appendix III to the above DCR is valid, they are not liable to surrender 907.03 sq.mtrs. as per condition no.12 in the NOC dated 19 December 2003 of respondent no.1 Board and that the surplus to be surrendered would be 907.03 sq. mtrs. minus 636.37 sq. mtrs. of Municipal market area.
Procedural History
The petition was filed in 2012 challenging clause 4 of Appendix III of DCR 33(7). All contentions except one were rejected in a previous judgment dated 7 May 2015 in Writ Petition No.2359 of 2011. The remaining contention was heard and decided by this judgment.
Acts & Sections
- Development Control Regulations for Greater Mumbai, 1991: Regulation 33(7), Appendix III clause 4
