NARIMAN POINT ASSOCIATION Vs. UNION OF INDIA

JUDGEMENT

(1.) The Petitioners in these proceedings under Article 226 of the Constitution had instituted before this Court, a Writ Petition in December, 2001 in the public interest to challenge the sanction granted for a project which involved the construction of a multistoreyed car parking facility together with a commercial complex at nariman Point, Mumbai. The earlier petition filed by the Petitioners was disposed of by a judgment and order of a Division Bench of this court consisting of the Hon'ble the Chief justice, Mr. Justice C. K. Thakker (as His lordship then was) and one of us (D. Y. Chandrachud, J. ). The aforesaid decision in nariman Point Association Vs. State of maharashtra was delivered on 14th February 2003 and is reported in 2003 (5) Bom. C. R. 273. This Court came to the conclusion that there was no merit in the challenge to the project raised before the Court. This Court held that the dominant purpose of the reservation of the land for a multi storeyed car parking facility had been fulfilled upon the utilisation of the entire permissible F. S. I. for the aforesaid purpose. The Court held that once this had been done, the permission which was granted for setting up a commercial complex as a part of the overall project was consistent with Development control Regulation 9 (IV) (i). In the judgment that was delivered by the Court, all the challenges were dealt with on merits. The court, however, also noted that there was a gross and unexplained delay on the part of the petitioners. The Petitioners had themselves submitted a proposal in 1989 for the construction of a multi sloreyed car parking facility and that proposal envisaged the utilisation of commercial space as a part of the overall development of the plot of land in question, for multi storeyed car parking. This court held that the Petitioners were aware since june 1998 that the Fifth Respondent herein, was to put up a multi storeyed car parking facility and the Petitioners had taken inspection of documents in May 2001 from MMRDA. The petition was filed before the Court in December, 2001 at which point of time, a substantial part of construction work had been carried out. In the circumstances, dealing with the issue of delay, this Court held as follows :"in a matter such as the present, the Court would be slow to interfere with the construction and with the implementation of the project when there has been a significant delay on the part of the petitioners in moving the Court. The question of laches is one to be addressed in the facts of each case, where the issue arises. In the present case, there has been a significant delay on the part of the petitioners even after they obtained knowledge of the project and thereafter, since the date on which inspection of documents was taken. Moreover, as already noted earlier, the Petitioners had themselves submitted a proposal in 1989 for the construction of a multi storeyed car parking facility and that proposal also envisaged utilisation of commercial space as a part of the overall development of the plots of land in question for multi storeyed car parking. "

(2.) On behalf of the Fifth respondent, it has been stated before the Court that the construction which began in October, 2001 has since been completed at a cost of over Rs. 85 Crores. The multi storeyed car parking is stated to be operational with a capacity for the parking of 500 cars. The commercial Complex is stated to have been launched on 12th November, 2004. It has been stated that of a total area admeasuring 23,572 sq. mtrs. , an area admeasuring 17,170 sq. mtrs. has been utilised for a multi storeyed car park and 6402 sq. mtrs. for a commercial centre. This petition was instituted on 29th April 2004, nearly one year after the judgment in the earlier proceedings.

(3.) In these proceedings it has been submitted that the State Government had issued a letter of sanction on 26th June, 2002 for the development of the plot and since the plot falls in the CRZ-II category, development was permitted in accordance with the Development control Regulations prevailing on 19th february, 1991. It has now been submitted that there is a breach of the CRZ notification dated 19th February, 1991 issued by the Ministry of environment and Forests, the Development control Regulations in force on 19th February, 1991 and the letter of sanction dated 26th June, 2002. In the submissions which have been filed in these proceedings, it has been urged that the issue in the earlier petition was as to whether, in the absence of an amendment to the development Plan earmarking plots 240 and 240-A for multi storeyed car parking, the said plot could be allowed to be utilised for commercial purposes. It has been submitted that the issue which is urged before the Court in these proceedings was not raised in the earlier proceedings.