- (1.) LEAVE granted.
(2.) CHALLENGE in these appeals is to the judgment of the bombay High Court which while holding that Regulation 33 (7) of the Development Control Regulations, 1991 (in short the 'regulations') for the city of Mumbai as amended in the year 1999 does not suffer from any illegality, further observed that the same applies only to dilapidated buildings of 'a' category which satisfy the requirement and those declared prior to the monsoon of 1997 under 3rd proviso are covered under regulation 33 (7) and are entitled to extra "floor Space Index" (in short 'fsi' ). It also directed that certain site space has also to be provided. The conclusions essentially are as follows: "for the reasons stated above, we hold that the petition is very much maintainable and we read the provisions of the first part of D. C. Regulation 33 (7) to cover only the privately owned dilapidated buildings which require reconstruction and where the cost of structural repairs exceeds the monetary requirement specified under Section 88 (3) of the mhad Act (vis. Rs. 1200/- per sq. meter as of now ). In the circumstances, prayer (b) of the petition deserves to be accepted though not prayer (a) and d. C. Regulation 33 (7) will have to be read to mean that only the dilapidated buildings of "a" category which satisfy this requirement (and those declared unsafe prior to the monsoon of 1997 under 3rd proviso thereof) are covered under D. C. Regulation 33 (7) and entitled to extra FSI provided therein. As far as the challenge to the side spaces being reduced to half as against what is otherwise provided, it was submitted that the provision is totally unreasonable. The side spaces will now hardly be about 1. 5 metres (about 5 feet) and for a building upto 24 metres, no separate fire fighting arrangement will be insisted. This will almost mean a building of ground plus 7 floors. The fire engines will not be able to go inside. In our view, independently on the merits of this submission, it. is required to be accepted. It was submitted by the respondents that in the erstwhile buildings there was hardly any space between two such buildings and if one goes for a tower, i. e. above 24 metres, obviously the side space will increase and the fire fighting facilities will have to be provided. In our view, this is no answer to the safety of the occupants with height of less than 24 metres. We may not interfere into the reduction of the recreational space or not providing the parking facilities though that will also create difficulties for the residents of such buildings. Considering that there is so much of space crunch, we may not interfere into the decision of the rule makers in that behalf. However, having the side space of only 5 feet for buildings of the height less than 24 metres (of ground plus 7 floors) is on the face of it something difficult to substantiate. That provision of the D. C. Regulations will have to be held as arbitrary, unreasonable and violative of Article 14 of the Constitution. We have no option, but to accept prayer (f) to this extent. The requirement of reducing side spaces for the buildings to be reconstructed is bad in law and they will have to be provided with the minimum side spaces as required in the buildings on small plots, vis. 3. 6 metres. The Apex Court has observed in its order of 21st April, 2006 that no third party rights will be created and it further observed that it will be for the high Court to deal with that aspect. This being the position, we direct, with a view not to cause prejudice to the investors, that those projects of reconstruction, which have already been approved, will proceed as it is. However, the buildings not having the certificate of the cost of structural repairs exceeding Rs. 1200/- per sq. m. under section 88 (3) of the MHAD Act will not be permitted reconstruction henceforth. For future, the certificate under section 88 (3) of the MHAD Act, viz. that the structural repairs cannot be carried out within the monetary limits specified therein will be mandatory requirement whereafter if 70% of the occupants and the landlord come together, the benefit under regulation 33 (7) will be available and not otherwise. Similarly, in all such buildings to be reconstructed, the side spaces will be maintained at least as in the case of other buildings on small plots vis. 3. 6 metres. " The background facts in a nutshell are as follows: the three writ petitioners (respondent Nos. 1, 2 and 3 herein) claiming to be public spirited citizens filed a writ petition before the Bombay High Court. The 1st petitioner is a former Municipal Commissioner of Mumbai, who is also a former Chief Secretary of the State of Maharashtra. The 2nd petitioner has been a member of various committees concerning urban development. The 3rd petitioner is a Civil engineer by profession and for many years was an Executive committee Member of the Bombay Metropolitan Authority. He was also a member of the Slum Rehabilitation Committee constituted by the State of Maharashtra. The respondents in the writ petition were the State of maharashtra through the Secretary, Urban Development department, Municipal Corporation of Greater Mumbai which is the Planning Authority for the city of Mumbai under the maharashtra Regional and Town Planning Act, 1966 (in short the 'town Planning Act') whereunder the regulations are framed. Respondent No. 3 was a statutory authority constituted under the Maharashtra Housing and Area development Act, 1976 (in short the 'development Act' ). The concerned authority is Maharashtra Housing and Area development Authority (MHADA ). Respondent No. 4 was the former Municipal Commissioner of Mumbai whose report was amongst others led to the amendment of the Regulations in the year 1999. Several parties intervened in the matter. Two of them were the property owners. One was the Property Owners' association and one claimed to be a tenant in pre 1940 building. One of the interveners was Property Redevelopers' association. Intervener No. 6 was an Architect by profession who supported the petition while others opposed the petition. Earlier, a Division Bench of the High Court rendered a judgment on 17. 10. 2005. The Division Bench accepted number of grievances and amongst others appointed a few committees to look into some such aspects which according to it had relevance for the issues highlighted in the petition. One of the interveners filed an appeal relatable to Special leave Petition (C) No. 1376 of 2006 and others also filed appeals. By order dated 14th July, 2006 this Court disposed of the appeals inter-alia with the following observations: "the High Court has not dealt with the basic issues raised in the petition, i. e. as to whether the amended Regulation 33 (7) suffered from any infirmity. We, therefore, think it appropriate to direct the High Court to examine those issues. The parties shall be permitted to place their respective stands before the High Court. It is open to the appellants to canvass before the High Court as to the non-maintainability of the writ petitions. The High Court shall appropriately deal with the same. It needs no re-iteration that the high Court shall examine the challenge to regulation 33 (7) as amended in 1999. " Therefore, this Court directed the High Court to deal with only that issue relating to the validity of the provisions and the maintainability of the writ petitions. Intervention applications had also been filed before this Court. These applications were also to be directed to be dealt with by the High Court. The grievances of the petitioners as noted before the high Court were as follows: "the petitioners are concerned with the problem of congestion of the population in the island city of Mumbai. The island area of the city covers the area from Colaba in the South to Mahim and Sion in the North (which originally consisted of eight islands before they were all linked ). The areas of suburbs and extended suburbs are not covered when one speaks of the island city. The existing infrastructure in the island city, particularly with respect to roads, water supply, sewage system, open areas and gardens, is already over stretched and under extreme strain. The petitioners point out that the island city has already reached the saturation point with respect to the population that it can accommodate, which is not disputed by any of the public authorities concerned. According to the report entitled "report on the Development Plan of Greater Bombay, 1966", the total acreage of the island city is 17, 388. 83 acres and the ultimate population, which it can accommodate, is 32. 5 lakhs. As of now, the existing population of the island city is already in excess of this figure of ultimate population. It is now estimated to be 33. 4 lakhs. It is another matter that the population in the suburbs is much more, but the area covered there is also much more than the island city. The petition is concerning only the island city. There is no dispute whatsoever that the present pubic amenities are inadequate to cater to the present population. Hence, according to the petitioners, any cause for the increase in the population in the island city has to be appropriately dealt with. Coupled with this deterioration of the infrastructure in the island city, it is also a fact that a very large number of buildings, i. e. more than 16,500 (16,502 according to one estimate) were constructed prior to 1940 and are in the need of urgent repairs and in some cases reconstruction. The State has taken it upon itself to see to it that these buildings are repaired and, wherever necessary, reconstructed and for that purpose, it created the Bombay Building, Repairs and reconstruction Board by passing the Bombay building Repairs and Reconstruction Board Act (Act no. XLVII of 1969 ). One of the main reasons for this large number of unattended buildings has been the freezing of the rent under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ("the bombay Rent Act" for short ). Rents received by the landlords were found very much insufficient for them to carry out repairs. The Bombay Buildings, Repairs and reconstruction Board Act was later on repealed and the activities under the Act were taken over by the maharashtra Housing and Area Development authority (MHADA) when the Maharashtra Housing and Area Development Act (MHAD Act) was passed in 1976. A cess was to be contributed by the tenants of the private buildings known as Mumbai building, Repairs and Reconstruction Cess under section 82 of the said Act. Lands and buildings owned by the Central Government, State government, Municipal Corporation of Mumbai, mumbai Port Trusts, lands and buildings vested in mhada, lards and buildings of the Public Trusts exclusively occupied for worship or educational purposes and those vested in or leased to a cooperative society, buildings exclusively in occupation of the owner, buildings exclusively used for non-residential purposes and some other properties as mentioned in section 83 were exempted from this requirement of paying the cess. These cessed buildings were divided into the following three categories under section 84 of the MHAD Act. JUDGEMENT_1351_TLPRE0_2008Html1.htm It appears to be the common case that as of now as per the affidavit of the State Government in the present matter, there are some 16502 buildings in "a" Category, 1491 buildings in "b" Category and 1651 buildings in "c" Category. Chapter VIII of MHAD Act provided for repairs and reconstruction of dilapidated buildings. Under section 88 from Chapter VIII of the MHAD Act, mumbai Housing and Area Development Board was supposed to undertake structural repairs of the buildings, which were in ruinous condition and likely to deteriorate and fall. However, section 88 (3)provides that where the cost of the structural repairs exceed Rs. 1200/- per sq. m. , the Board may not consider such buildings for repairs and issue a certificate to that effect to the owner of the buildings and affix it on the building for the information of occupiers and then proceed to take action as provided in this Chapter. Thereafter where the occupiers were ready to contribute to the cost in excess of Ps. 1200/- per sq. metre, the Board may carry out the structural repairs, for which a provision is made in section 89 of the MHAD Act. This will mean that oherwise the steps for reconstruction will be taken by acquiring the property as provided in sections 91 and 92 of this chapter. Section 91 provides for reconstruction where a building suddenly collapses or becomes inhabitate due to fire, torrential rein or tempest or otherwise. Section 92 lays down the procedure for acquisition where however a building suddenly collapses. " the High Court noted that there was no dispute that there was hardly any progress in the matter of repairs and/or re-construction by the procedure provided. Therefore, even in the year 1981 the Government appointed a Committee under one Mr. Ajit Kerkar to consider the problems. The Committee emphasized that there should be a shift from re-construction of individual buildings to the re-development of the entire localities and the formulation of a programme of urban renewal. The High Court noted that it was a common case that mhada found it difficult to put in adequate funds for acquisition of properties for reconstruction under Chapter VIII of the Development Act and, therefore, Chapter VIII-A was introduced in the said Act. The provisions of this Chapter have been stated to be notwithstanding what was provided in chapter VIII as stated in Section 103-B of Chapter VIII-A. The provisions under this Chapter were to operate when 70% of the occupiers came together and approached the Government to acquire the property. They were required to assure to contribute towards acquisition and take steps since the landlords were not cooperating and under the Scheme of this chapter the developed buildings were to be given FSI 2. These provisions also did not receive adequate response. On 25. 3. 1991 the Regulations were notified for greater mumbai. Regulation 33 (7) to which these cases relate provided for reconstruction or re-development of cessed buildings in the island city by cooperative housing societies or of old buildings belonging to the Corporation. The Regulation provided for old consumed FSI or FSI 2 whichever is higher. This Regulation was further amended on 25. 1. 1999 to provide the FSI of 2. 5 on the gross plot area or the FSI required for rehabilitation of the existing tenants plus incentive FSI as specified in appendix III to the Regulations. This amendment was brought about after a report was submitted by Study Group under the chairmanship of Shri D. M. Sukhtankar, former Municipal commissioner who was respondent No. 4 in the writ petition. The Study Group had submitted its reply to the State government in July 1997 leading to amendments in the year 1999. The Regulation was further amended by adding a new clause w. e. f. 27th February, 2004 whereby apart from the corporation buildings, those of Department of Police, Police housing Corporation, Jail and Home Guard of Government of maharashtra constructed prior to 1940 were also covered. The main grievance in the writ petitions was that there was gross misuse of the amended Regulation 33 (7) when applied to private buildings with which the petitions were concerned. They submitted that taking shelter under the amended Regulation 33, there has been misuse by pulling down buildings which are otherwise in good conditions merely because they were constructed prior to 1940. It was further submitted that there are no guidelines under the Regulations to lay down as to who are the tenants or occupiers who are eligible to be protected under the Regulations. Numbers of instances were cited. It was submitted that builders and developers and people with money and muscle power were dishousing genuine tenants/occupiers. The numbers of tenants/occupiers were being inflated by creating bogus tenancies to claim extra FSI. The consequence, it was submitted, was that there was going to be unjustified and tremendous increase in the population in the island city causing further strain on its infrastructure. It was their case that the extra FSI as per the amended Regulation was meant for the reconstruction of unsafe and dilapidated buildings only and not for all the 16502 'a' category cessed buildings. The dilapidated buildings are supposed to be just about 10% of them. Accordingly, there was a prayer to prevent strong and sound cessed buildings which are not in danger of collapse to be not pulled down and Regulation 33 (7) should be declared to be applicable only to those cessed buildings which are dilapidated and are in unsound and in unsafe condition. Challenge was to the reduction in the marginal open space requirement for the buildings under Regulation 33 (7)read with Appendix III as provided for the buildings under other regulations and it was prayed that same should be also struck down. Stand of the respondents apart from questioning the maintainability of the writ petitions, the locus standi of the writ petitioners, was that Regulation 33 (7) as amended was applicable to all 'a' category cessed buildings which are constructed prior to 1940. Whenever 70% of the tenants/occupiers of such buildings came together alongwith their landlords for redevelopment of their properties, they were entitled to get extra FSI. This will provide houses with minimum 225 sq. ft. free of cost to all tenants in these pre-1940 buildings. Many of them are otherwise cramped in still smaller tenements. The benefit could not be restricted only to the old and dilapidated buildings. There was no such restriction contemplated under Regulation 33. The High Court while upholding the validity of Regulation 33 (7) accepted some of the prayers of the writ petitioners which are led to the filing of the appeals.
(3.) STAND of appellants in these appeals is that the amended regulation 33 (7) came into force on 25th January, 1999 after inviting suggestions/objections from the public at large under section 37 of the Town Planning Act, 1966 and after considering the same. Neither any suggestions nor any objections were filed by the writ petitioners nor did they challenge the said amended D. C. Regulation 33 (7) from 1999 till October, 2004. In other words there was a delay of nearly 6 years. It is submitted by learned counsel for the appellants that public Interest Litigation as claimed to have been filed is not maintainable. Such a petition lies at the instance of the a third party only when it is shown that the affected person is unable to approach the Court. It would not lie if a section of the public was not interested in the cause. The writ petitioners did not file any objections or suggestions when statutory notice was issued. Therefore, they could not have invoked Article 226 of the Constitution and to pray that the high Court should consider their suggestions and restrict the regulation to old and dilapidated buildings beyond economic repair as set out in Section 88 of the Development Act or to consider impact on environment or infrastructure due to unlimited FSI or to restrict the FSI given to MHADA. They, therefore, seek to substitute the High Court for the statutory authorities. This is not permissible. The affected parties to any dispute on the PIL are essentially the property owners and the persons against whom serious allegations of alleged misuse of the regulation were made. These persons were not impleaded. It is a settled position in law that in cases of public interest litigation the principles of natural justice apply and any order passed without impleading the affected parties would be bad. The prayer was to amend the Regulations as framed. This prayer could not have been accepted. As per the Kerkar report the FSI permissible to the Board ranged between 3. 19 and 5. 88. By the impugned judgment the applicability of regulation 33 (7) was restricted to dilapidated buildings, the cost of repair which was beyond the statutory time limit fixed under Section 88 of the Development Act. Such a course is impermissible as it is contrary to the intention of the delegated legislation in view of the clear use of the expression "subject to the provision of MHADA Act" which has been used in the directives issued under Section 154 of Town Planning Act in january 1989. Notification dated 9. 3. 1989, DC Regulation of 1991 and the amendments made in 1994 to the DC regulations of 1991 were deleted. The expression "old and dilapidated cessed buildings" have been used in the government Policy on reconstruction of old buildings of 12. 11. 1984 and in the letter dated 20. 3. 1987 regarding regulations of 1991, and the amendments made in 1994 to the Regulations of 1991. The expression "old and dilapidated cessed building" had been used in the Government Policy on reconstruction of old buildings of 12. 11. 1984 and in the letter dated 20. 3. 1987 regarding Regulations, and the said expression is not found in Regulation 33 (7 ). It has been consistently held that landlord need not wait for the building to get dilapidated as he is entitled to re-construct to augment his income.;