J. M. Panchal, J. - (1.) Leave granted.
(2.) The instant appeal is directed against judgment dated August 13, 2007 rendered by the Division Bench of High Court of Judicature at Bombay in Writ Petition No. 1627/2007 by which the prayers made by the appellants, (1) to declare that application submitted by them on December 26, 2005 to the Municipal Corporation of Greater Mumbai to give permission to develop land bearing CTS No. 2193 (P) of Bhuleshwar Division at Dr. Babasaheb Jaykar Marg stands granted in view of Section 45(5) of the Maharashtra Regional and Town Planning Act, 1966, (2) in the alternative to direct the respondents to grant forthwith their application for permission to develop land referred to above with additional FSI of 3.73 times the FSI permissible under Rule 10(2) of DC Rules, 1967, and, (3) to direct the respondents to allow them to proceed with the development of their plot mentioned above for construction of luxury hotel by utilization of additional FSI of 3.73 times the FSI permissible on the said plot as per DC Rules, 1967, are refused.
(3.) The appellants Nos.1 and 2 are the Companies incorporated under the provisions of the Companies Act, 1956. The petitioner No. 2 holds/owns a plot of land bearing CTS No. 2193 (P) of Bhuleshwar Division at Dr. Babasaheb Jaykar Marg, Thakurdwar. The plot admeasures approximately 8983 square meters. The respondent No. 1 is the Municipal Corporation for Greater Mumbai, and the Planning Authority under the provisions of Mumbai Municipal Corporation Act, 1888 as well as Maharashtra Regional and Town Planning Act, 1966 (The M.R.T.P. Act, for short). The appellant No. 1, obtained requisite rights in respect of plot referred to above. The plot was reserved for play ground of Municipal Primary School and Secondary School as well as for D.P. Road. The appellant No. 1 caused a purchase notice to be served to the Municipal Authorities on June 16, 2005. The Municipal Corporation found that the land was encumbered with residential as well as commercial structures and the cost of purchase would be roughly about Rs. 13.6 crores which was very high. The Municipal Corporation, therefore, decided not to purchase the said plot of land, as a result of which the reservations on the plot lapsed on December 16, 2005 under the relevant provisions of the M.R.T.P. Act. The appellants thereupon desired to develop the plot for construction of a luxury hotel. It may be mentioned that in exercise of rule-making power conferred by the M.R.T.P. Act, the State Government had earlier framed Development Control Rules, 1967. According to the appellants, the Ministry of Environment and Forests issued Notification I on February 19, 1991 under Section 3(1) and 3(2)(v) of the Environment (Protection) Act, 1986 and Rule 5(3)(d) of the Environment (Protection) Rules, 1986 declaring coastal stretches as Coastal Regulation Zone (CRZ) and regulating activities in the CRZ, as result of which the plot belonging to them falls within CRZ II. What is claimed by the appellants is that the buildings permitted in CRZ II on the landward side of the existing and proposed road would be subject to the existing local Town Planning Regulations and therefore, the luxury hotel will have to be constructed as per D.C. Rules of 1967 which were existing local Town Planning Regulations. The appellant, therefore, submitted the plans to develop the land in question by constructing a luxury hotel in terms of Rules of 1967 on December 26, 2005. The case of the appellants is that they are entitled to additional FSI of 3.73 times the FSI in addition to 1.33 FSI allowable on the said plot as per the provisions of Rule 10(2) of DC Rules, 1967. The appellants did not receive any communication from the Municipal Authorities about their application by which permission to develop the plot was sought. On December 31, 2005 the Municipal Corporation submitted a proposal to the Principal Secretary, Urban Development Department, Government of Maharashtra recommending inter alia that in view of the provisions of CRZ Notification and DC Rules, 1967, additional FSI as applied for by the appellants be granted under Rule 10(2) of DC Rules, 1967. On August 2, 2006 a letter was addressed by the State Government to the Ministry of Environment and Forest, Union of India requesting to examine the proposal of the appellants and communicate to Government of Maharshtra whether the stand taken by the appellants for additional FSI was correct. On August 18, 2006 a communication was addressed by the Ministry of Environment and Forest to Principal Secretary, Urban Development Department, Government of Maharashtra clarifying that in view of earlier clarification issued on September 8, 1998, the DC Rules as existed on February 19, 1991 would apply to the areas falling within the CRZ Notification and further mentioning that "The word existing has been interpreted by the Ministry vide a letter dated 8th September, 1998 to mean the Rules which prevailed on 19th February, 1991". It was also stated in the said communication that the DCR Regulations which were in force on December 19, 1991 i.e. the approved DC Rules of 1967 shall be considered and not the draft Regulations of 1989 which came into force on February 20, 1991 as the Draft Development Plan of 1989 was still at a draft stage on February 19, 1991. On February 20, 2007 a letter was addressed by the Government of Maharashtra to Municipal Corporation of Greater Mumbai in which reference was invited to the application submitted by the appellants for development permission and remarks from the Municipal Corporation were called for. The Municipal Commissioner convened a meeting of the personnel belonging to different Departments and at the said meeting the matter was considered. The Committee decided to recommend the proposal for consideration of Government in terms of the provisions of DC Rule 52(8)(vii). On March 1, 2007 the Municipal Corporation recommended for grant of additional FSI in terms of the DC Rules, 1967 as demanded by the appellants. On February 21, 2007 the Ministry of Environment and Forest granted environmental clearance to the appellants for construction of a residential hotel and commercial project subject to the terms and conditions set out therein. The appellant No. 2, on April 30, 2007 created a registered mortgage of the land in favour of IL and FS Trust Company Ltd. and Ors. for securing loan facilities amounting to Rs. 550 crores for construction of the luxury hotel. The appellants did not receive any further communication from the respondents. The case of the appellants was that the Planning Authority did not communicate its decision to them as to whether the permission sought for was granted or refused, within 60 days from the date of the receipt of application and therefore they were entitled to a declaration that the permission was deemed to have been granted to them in terms of Section 45 (5) of the M.R.T.P. Act. In the alternative it was their case that in terms of the amended DC Rules of 1967 the competent authority, with the previous approval of the Government, has authority to permit the person who has applied for permission to exceed floor space indices in respect of buildings of educational and medical relief institution as well as Government and semi Government offices and luxury hotels and as the Taj Mahal, Oberoi, Sea Rock, President, Ambassador amongst other hotels, were granted benefit of additional FSI under Rule 10 (2) of DC Rules, 1967, they were also entitled to additional FSI 3.73 times permissible FSI of 1.33 available under the relevant Rule. What was asserted by the appellants was that in view of Division Bench decision of the Bombay High Court in Overseas Chinese Cuisines India Pvt. Ltd. Vs. Municipal Corporation of Greater Mumbai 2001 (1) BCR 341, the provisions of DC Rules of 1967 would be applicable and therefore the appellants were entitled to additional FSI. Under the circumstances the appellants invoked extra ordinary jurisdiction of the High Court of Judicature of Bombay under Article 226 of the Constitution by filing Writ Petition No. 1627/2007 and claimed the reliefs referred to earlier.;