SADANAND VARDE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The Petitioners are tax payers of the State of Maharashtra and rate-payers of Respondent No.2. All of them are nationals and citizens of India, and have been active in agitating various social issues. By the present petition, they have sought quashing of notification dated 25th January 1999, whereby modifications have been made to the Development Control Regulations for Greater Bombay, 1991. Regulation 31 was modified by adding a proviso making non applicable height restrictions for reconstruction and redevelopment of old buildings undertaken under Regulation 33(7), 33(8) and 33(9) and which are not affected by the Costal Regulation Zone Notification dated 19th February 1991, issued by the Ministry of Environment and Forest, Government of India, and orders issued from time to time. Similarly, Regulation 59 was modified, pursuant to which restrictions on height were not to be made applicable for reconstruction and redevelopment of old buildings undertaken under Regulation 33(7), 33(8) and 33(9) of the Regulations, which are not affected by the Costal Regulation Zone, dated 19th February, 1991. Similarly, modification was made to regulation 67, making applicable the provisions of the Regulation only to Grade I and grade II category of Heritage Buildings for reconstruction and redevelopment of old buildings undertaken under Regulation 33(7), 33(8) and 33(9). There is a provision also made for redevelopment of cessed buildings from Grade III and precincts. Regulation 33(7) was replaced by new regulation for reconstruction and redevelopment of cessed buildings. Similarly, Regulation 33(8) and 33(9) were replaced increasing the FSI for reconstruction of buildings for Housing the Dishoused in the island city with additional FSI, which is not available, when owner undertakes development. So also additional FSI was provided for repairs and, reconstruction of cessed buildings under Urban Renewal Scheme. It is not necessary to refer to Appendix thereof. The Regulations have been made in exercise of the powers conferred on the State of Maharashtra by Sub-section (2) of Section 37 of the Maharashtra Regional Town Planning Development Act, which hereinafter shall be referred to as the MRTP Act.

(2.) The validity of these Regulations have been challenged, contending that these are not minor modifications. The Petitioners have also sought to challenge the practice of indiscriminate user of TDR on residential plots, which are not eligible as also the Circular under the Caption "Fees for Revalidation of Building Proposals", which is based on the Corporation Resolution No. 563, dated 14-9-1995. Prayer Clause (i) seeks quashing the notification of 25th January 1999 and also the 1994 amendment of the definition of FSI, by insertion of Section 2(13-A) by Maharashtra Act No. 39 of 1994. We may also note at this stage itself that an amendment has also been made to the marginal notes under Section 37 and for the words "minor modification." the word modification has been substituted." Prayer Clause (ii) seeks to quash Regulation 34, which enables incentive FSI obtained by way of TDR from the Island City to be used in the Suburbs on plots, which do not have marginal side spaces in proportion to the height and length of the building, as required as per original Regulation 29 of DC Regulations 91. Prayer Clause (iii) is for quashing the building permission, which is consequential, if prayer Clause (ii) is allowed. Prayer Clause (iv) is to quash Regulation 34 and to direct Respondent Nos. 1,2 and 3 to amend the same as per the norms internationally accepted, particularly from the US from where this concept is borrowed. We are afraid a Court exercising its extra jurisdiction under Article 226 of the Constitution of India or for that matter a civil court exercising powers of judicial review cannot issue a Mandamus or direction to the legislature or its delegate to make any law. That relief therefore, cannot be considered by this Court. Prayer Clause (b) is for quashing Resolution No. 563 of 14-9-1995 of Respondent No.2, which permits the Commissioner to charge a fee. We may at once note here, that the exercise of power under Regulation 64(b) in those cases where discretion can be exercised for relaxation of dimensions. Municipal Resolution lays down the manner in which premium shall be charged. Prayer (c) is consequential to the other reliefs.

(3.) In support of the petition, the Petitioners have referred to material in the matter of use of FSI in island city, the enactment of MRTP Act and other Acts, and also Development Plans & DC Regulations. It is the case of the Petitioners that use of additional FSI alongwith removal of height restrictions and shrinking of marginal side open spaces has been done in contravention of all Town Planning norms, endangering the health, and safety of the public and also fire safety and causing undue strain , almost to the point of break down of essential services like water and power supply, drainage and sewerage system which was, designed several decades ago, for a much smaller population and also damaging the ecology. Instances are given of various constructions put up which are in contravention of the DC Regulations. In para 6(d) of the Petition, Petitioner No.6 points out to complaints made of illegal construction by H(W) Ward Citizens Trust. Further instances are set out in paragraph 7. It is the submission of the Petitioners that the various amendments denies them the right to clean environment, recognized as part of right to life, under Article 21 of the Constitution. It is submitted that the modifications made are changing the nature and character of the Development Plan and consequently are ultra vires Section 37 of the MRTP Act. It is submitted that allowing the change in definition of FSI and allowing increase in FSI and height of the buildings by leaps and bounds, without augmenting the essential services like water & power supply, drainage, sewerage and transport facilities and shrinking side & rear open spaces, which are meant for light and ventilation and open recreation grounds, which are the lungs of the city, amounts to practicing fraud on the statute and is therefore, without the authority of the law, illegal, null and void. It is next submitted that the amendments to the DC Regulations are unreasonable, discriminatory and capricious. It discloses non application of mind as the increased FSI has caused severe strain on infrastructural facilities. For similar reasons, the impugned amendments are productive of public mischief and are destructive of the very concept of FSI which was conceived to prevent congestion of buildings and population density. The amendments are defeating the very policy and purpose of the Development Plan. The aim of D.P. Plan is to provide facilities for housing, commerce and industry, provisions of schools and play grounds, medical and transport facilities and clean environment which aims for providing a better quality of life. It is submitted that subordinatate legislation cannot subvert the purpose and policy of the legislative enactment. To that extent they are ultra vires the statute and therefore void. Though the concept of TDR in DC Regulation 34 is borrowed from the American Town Planning Scheme and is an excellent concept in so far as acquiring properties for public purpose like recreation or those mentioned in Section 22 of the MRTP Act like play ground, road widening and of making new road without paying monetary compensation, by giving FSI advantage to be used elsewhere, the consequential amendments providing for additional 20% FSI from Slum Schemes and unlimited FSI from island city on receiving plots in the suburbs, without taking into consideration whether receiving plot has capacity like marginal side spaces and other infrastructural facilities defeats that object. It is also pointed out that discretionary powers conferred on Municipal Corporation under Regulation 64(b) can only be exercised in specific case of clearly demonstrable hardship for reasons to be recorded in writing. The Municipal Resolution which permits the Municipal Commissioner to grant concessions, otherwise than in accordance with the Resolution 64(2) for a premium, is clearly arbitrary and violates the guarantee of protection of equal laws under Article 14 of the Constitution. The delay in filing the petition it is explained, is because the ill effects of the impugned Regulations have now started being felt, when multi storeyed structures started mushrooming and choking the infrastructural facilities.