- (1.) Leave granted.
(2.) This appeal is directed against the order dated 9.7.2012 passed by a Division Bench of the Bombay High Court whereby Writ Petition No.143/2012 filed by the respondents was allowed, and which quashed the stop work notice dated 22.12.2011 issued by Executive Engineer (Building Proposal) City-III, Municipal Corporation of Greater Mumbai, and order dated 27.4.2012 passed by the Additional Municipal Commissioner restricting to four floors the height of Wing 'C' (providing for public parking lot- 'PPL' for short) of the buildings being constructed on Plot No.46 of Town Planning Scheme-III, N.C.Kelkar Road, Shivaji Park, Dadar, Mumbai. Dispute between the parties, settlement thereof and Part-I of the order dated 25.7.2013:-
(3.) This appeal was initially heard by a bench of G.S. Singhvi and H.L. Gokhale, JJ. Mr. Harish Salve and Mr. R.P Bhatt, both learned Senior Counsel appeared for the appellants, and Mr. F.S Nariman, learned Senior Counsel appeared for the respondent. The appellants wanted to restrict the PPL up to four floors only, but before the issuance of the restrictive circular dated 22.6.2011, in this behalf, the respondents had already consumed higher FSI (Floor Space Index) on the basis of the Commencement Certificates issued earlier. In view of the discussion in the Court however, a settlement was arrived at between the appellants and the respondents on the controversy concerning the PPL. Before passing the order on the settlement, the bench noted the backdrop of the facts and circumstances of the case in paragraphs 2 to 5 in Part-I of the order passed on 25.7.2013 (per Singhvi, J. as he then was). These paragraphs read as follows:- "2. The plans submitted by respondent No. 1 for construction of Wings-'A', 'B' and 'C' of the building were sanctioned by the competent authority of the Municipal Corporation of Greater Mumbai (for short, 'the corporation') and Intimation of Disapproval was issued on 15.2.2006. After the Ministry of Environment and Forests, Government of India granted clearance for the construction of commercial building, the competent authority issued commencement certificated dated 13.9.2006. The Joint Commissioner of Police (Traffic) issued NOC dated 11.12.2009 for the development of a multi-storied public parking lot and vide letter dated 2.6.2010, the State government granted in-principle approval under Clause 33(24) of the Development Control Regulations (DCR) for Greater Mumbai, 1991 for construction of a multi-storied public parking lot. Thereafter, the competent authority issued the Letter of Intent dated 27.7.2010. 3. During the construction of the building, the Urban Development Department of the State Government sent letter dated 4.3.2011 to the Municipal Commissioner requiring him to submit a proposal for amendment of Clause 33 (24) of the DCR for limiting the height of parking towers to 4 floors and also for revocation of all sanctioned proposals where the commencement certificates had not been issued. In view of that letter, the Corporation issued circular dated 22.6.2011 prescribing certain conditions under Clause (iv) of DCR 33(24) and clarified that all proposals for public parking lots shall be considered subject to those conditions. The new conditions sought to limit the height of public parking to ground plus 4 upper floors and 2 basements. 4. As a sequel to the above changes, the Corporation issued notice dated 29.11.2011 to respondent No. 1 under Section 51 of the Maharashtra Regional and Town Planning Act, 1966 requiring it to show cause as to why the commencement certificate may not be revoked. Respondent No. 1 submitted detailed reply dated 14.12.2011 and pleaded that the amended DCR 33(24) cannot be made applicable to its buildings because substantial construction had already been made at a cost of Rs. 167/- crores. Thereafter, the concerned Executive Engineer issued stop work notice dated 22.12.2011 and directed respondent No. 1 to restrict the work of public parking to 4 floors instead of 13 floors. After about six months, Additional Municipal Commissioner passed order dated 27.4.2012, the relevant portion of which is extracted below:- "As there is a substantial construction on core part of the plot, PPL done in this part shall be allowed to the extent of already executed construction as per report dated 27.12.2011. In the remaining portion of the plot, where there is no substantial construction, PPL shall be limited to G + 4, Developer is to be asked to modify his plans in consonance with modified DCR." 5. The respondent challenged the stop work notice and the order of the Additional Municipal Commissioner in Writ Petition No. 143/2012, which was allowed by the High Court in the following terms:- "In the facts of this case, the admitted position as accepted in the order of the Additional Municipal Commissioner indicates that the work of development had substantially progressed by the time a notice to show cause was issued under Section 51 of the M.R. & T.P. Act, 1966. The impugned order passed by the Additional Municipal Commissioner restricting the Petitioners to a height of a ground floor and four upper floors in deviation of the permission granted earlier is thereafter contrary to law. Hence, the impugned order would have to be quashed and set aside and is accordingly set aside. The stop work notice which has been issued to the Petitioners on the basis of the notice to show cause dated 29 November 2011 is to that extent quashed and set aside. Rule is made absolute in these terms. There shall be no order as to costs.";