HUSSEINBHAI M. BAGASRAWALLA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The Petitioners claiming to be owners of a plot of land bearing C.S. No.3B/730 admeasuring 9514 sq. mtrs, situated at Pandit Madan Mohan Malviya Marg, Tardeo, Mumbai, have inter alia challenged a decision of the Municipal Corporation of Greater Mumbai, contained in a letter of the Chief Engineer dated 5 May 2012 calling upon them to resubmit a proposal for development in accordance with a notification of the State Government dated 19 March 2012. In consequence the Petitioners seek an order directing the Municipal Corporation to revalidate a letter of intent for construction of a multistoried parking lot and a direction to the Municipal Corporation and its officers to scrutinize and sanction the plans without reference to a proposed modification of the relevant Development Control Regulations.

(2.) On 28 October 2008 the Municipal Corporation brought into effect the provisions of Development Control Regulation 33(24). DCR 33(24) contemplates the grant of permission for the construction of multi-storied parking lots on the grant of an incentive FSI. The Petitioners submitted a proposal on 14 January 2009 for the construction of a residential building together with the construction of a multi-storied public parking lot thereon. As DCR 33(24) was originally framed, there was no restriction on the height of a public parking amenity to be provided by a developer against the grant of incentive FSI. DCR 33(24) inter alia provided as follows :

(3.) The conditions which were appended to the Regulation provided for a minimum plot area, the constitution of a committee for considering the proposals, grant of incentive FSI (over and above the FSI permissible under other provisions of the Regulations) and the total maximum permissible FSI. The proposal submitted by the Petitioners received the in-principle approval of the Government of Maharashtra on 20 May 2010. Following this the Municipal Corporation issued a letter of intent on 19 October 2010 for the development of a public parking lot under DCR 33(24) comprising of 1024 public parking spaces. After the insertion of DCR 33(24) the Municipal Corporation as the planning authority took cognizance of the fact that in the absence of height restrictions, it would be open to a developer to construct a building for housing a parking lot in the form of a multi-storied tower which when constructed may not be even fully utilized by the public. The developers were to be granted an incentive FSI nonetheless for having constructed a multi-storied parking lot. An administrative circular was issued by the Municipal Commissioner on 22 June 2011 under which inter alia a cap was sought to be introduced in respect of the height which would be permissible for the construction of a public parking amenity. The Petitioners instituted before this Court a writ petition under Article 226 challenging the administrative circular. On 23 February 2012 a Division Bench of this Court, while disposing of the petition recorded the following statement made on behalf of the Corporation :