ASHOK GAJANAN JOSHI Vs. STATE OF MAHARTASHTRA

JUDGEMENT

(1.) THE petitioner by invoking Article 226 of the Constitution as pro bone public has prayed for a writ of mandamus or any other appropriate writ, direction or order for grant of benefits of development Control Regulations and of incentive additional Floor space Index ("fsi" for short) to all owners, occupiers and cooperative societies. Other reliefs also have been sought.

(2.) IT is the case of the petitioner that he is a public spirited citizen and has been prosecuting the cause highlighted in the petition since several years. Even in past, he had filed petitions being Writ Petition nos. 5286 of 1998 and 6290 of 1999. The question raised in the present petition relates to Final Development Plan prepared by Thane municipal Corporation, respondent No. 3 herein ("corporation" for short ). Respondent No. 1 is the State of Maharashtra and respondent no. 2 is the Secretary of Urban Development Department, government of Maharashtra. Respondent No. 3 is Municipal corporation, Thane, and also a "planning Authority" under the maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as "the Act" ). Certain modifications have been suggested by respondent No. 3 in the Final Development Plan and were sanctioned by the first respondent in accordance with the provisions of the Act. The grievance of the petitioner is that the Final development Plan sanctioned by the State Government is not in consonance with law, and hence a writ of mandamus is sought by the petitioner directing respondents to act according to law by granting certain benefits under the said Final Development Plan.

(3.) THE grievance of the petitioner is that the modified Regulations which have been brought into force by respondent Wo. 3 are illegal, unlawful and improper. Firstly, it is contended that the modified regulations have been brought into force in 1999 but the benefits of the said Regulations have not been granted to buildings which have been demolished prior to 4th October, 1999. The said action is arbitrary, discriminatory and violative of Article 14 of the constitution. Secondly, the benefit of incentive FSI has been granted to the owners who had put up such construction authorisedly and legally but the similar benefits had not been given to the owners who had made the construction anauthorisedly. Such action is illegal and discriminatory and deserves to be interfered with. Thirdly, FSI has not been calculated correctly and the benefit to which the owners are entitled would be more on correct interpretation of the relevant rules. Finally, the benefit of incentive FSI has been extended in favour of owners of the properties which have been let out and are in actual and physical possession of tenants and not in possession of owners, occupiers or co-operative housing societies. A classification of properties in possession of tenants on the one hand and in possession of owners, occupiers or other persons on the other hand is artificial, irrational and discriminatory without there being any rationale with the object sought to be achieved. Such classification, therefore, must be held arbitrary, unreasonable and violative of Articles 14, 19 and 21 of the Constitution.