- (1.) This petition under Art. 136 of the Constitution of India is directed against the order of Bombay High Court dated 8th March, 1990.
(2.) Facts necessary and shorn of details are given as under. Pratibha Co-operative Housing Society Ltd. (hereinafter referred to as 'the Housing Society' made some unauthorised constructions in a 36 storeyed building in a posh and important locality of the city of Bombay. The Bombay Municipal Corporation issued a show cause notice dated 7th August, 1984 calling upon the Housing Society to show cause within 7 days as to why the upper eight floors of the building should not be demolished so as to limit the development to the permissible Floor Space Index (F.S.I.). In the notice it was stated that additional F.S.I. to the extent of 2773 sq. mts. was gained by the Housing Society and that the construction work had already reached 36 floors and that on the basis of the actual area of the building, the upper eight floors were beyond the permissible F.S.I. limit and as such were required to be removed. The Housing Society submitted a reply to the show cause notice by their letter dated 13th August, 1984. The Administrator of the Bombay Municipal Corporation made an order on 21st September, 1984 requiring the Housing Society to demolish 24,000 sq. ft. on the eight upper floors of the building on the basis of 3000 sq. ft. on each floor. The Housing Society made a representation but the same was dismissed by the Administrator by order dated 31st October, 1984. An appeal submitted by the Housing Society was also dismissed by the State Government on 7th October, 1985. The Housing Society then filed a Writ Petition No. 4500 of 1985 in the High Court. A Division Bench of the High Court dismissed the Writ Petition on 28th October, 1985. However, the High Court While dismissing the writ petition also observed as under: "It would, however, be fair and just in the circumstances of the case to give a choice to the society to reduce the construction up to permissible limit or whatever other method they can think of. It is of course for the society to come forward with a proposal in that behalf. We therefore direct that in case the society comes with any such alternative proposal within the four corners of the rules and regulations within one month from today the Municipality may consider." The case of the Housing Society is that in pursuance to the said order it submitted application to the Municipal Corporation giving several alternative proposals on 21st November, 1985. It may be noted at this stage that the Housing Society had preferred a special leave petition No. 17351 of 1985 before this Court against the judgment of the High Court dated 28th October, 1985 and the said special leave petition was dismissed by this Court on 17th January, 1986. Further allegation of the Housing Society was that it submitted another proposal to the Municipal Corporation on 17th February, 1986 and thereafter wrote to the Municipal Council on 14th August, 1986 to consider their alternative proposals. A similar letter was also written to the Chief Minister of Maharashtra. On 29th August, 1986 the Municipal Commissioner fixed up a meeting for hearing the alternative proposals of the Housing Society. It has been alleged that in the said meeting the Housing Society had put forward its case in support of the new proposals and the Municpal Commissioner had thereafter informed the Housing Society that he would consider the said proposals and take decision. However, no decision was taken till the filing of the present special leave petition before this Court. It has been further alleged that on 27th December, 1988 the Housing Society wrote a letter to the Municipal Commissioner to consider the alternative proposals mainly of vertical demolition of the building instead of demolishing the eight upper floors. It has been alleged that a meeting took place between the architects of the Housing Society as well as the officers of the Muncipal Corporation in January, 1989 wherein the officers of the Corporation agreed that instead of demolishing eight upper floors, demolition can be made vertically so as to bring the entire construction within the permissible F.S.I. It has been further alleged that immediately thereafter the Housing Society was informed that henceforth it should contact the Municipal Commissioner directly and not any officers of the Corporation. It has been further alleged that the Corporation without considering the proposals of the Housing Society entrusted the work of demolition of the upper eight floors of the building to company. In these circumstances the Housing Society filed Writ Petition No. 3016 of 1989 in the High Court. Learned single Judge dismissed the writ petition by order dated 19th December, 1989 and the appeal preferred against the said order was dismissed by the Division Bench of the High Court by order dated 9th March, 1990.
(3.) In view of the fact that the main grievance of the Housing Society was that its alternative proposal of demolishing the building vertically instead of eight upper floors was not considered on merits by the Corporation, a serious effort was made by this Court to get the feasibility of such proposal examined by the Corporation. Orders in this regard were passed by this Court on several occasions but ultimately no agreeable solution could fructify. The proposal was got examined at the highest level by the Municipal Corporation and ultimately the Commissioner rejected the proposal on 13th November, 1990 and submitted a detailed report in writing for the perusal of this Court. In the above report it has been stated that in pursuance to the order of this Court dated 22nd October, 1990, the proposals submitted by the Housing Society on 27th October, 1990 and 29th October, 1990 in supersession of all alternative proposals, to demolish vertically one bedroom and servant quarters on all the floors to bring the building in tune with the F.S.I. was considered but on the grounds stated in the report the proposal submitted by the Housing Society cannot be approved.;