J. M. Panchal, J. - (1.) By filing the present contempt petition, the petitioners have prayed to take action against the respondents, who, according to them, have not implemented nor acted according to the judgment of this Court dated December 14, 2007, rendered in Civil Appeal No. 5948 of 2007, requiring the State Government to take a decision on the application submitted by the petitioners seeking permission to develop their plot on the basis that the provisions of D.C. Rules, 1967 were applicable and decide the said application in the light of the recommendations made by the Competent Authority as well as the fact that other hotels, as pointed out by the petitioners, were granted more FSI than 1.33 permissible under Rule 10(1) of the D.C. Rules, 1967.
(2.) The petitioner Nos. 1 and 2 are the companies incorporated under the provisions of the Companies Act, 1956. The petitioner No. 2 owns a plot of land bearing CTS No. 2193(P) of Bhuleshwar Division at Dr. Babasaheb Jaykar Marg, Thakurdwar, Mumbai. The plot admeasures approximately 8983 square meters. The plot was reserved for playground of municipal primary school and secondary school as well as for D.P. Road. The petitioner No. 1 caused a purchase notice to be served upon the municipal authorities on June 16, 2005. Under the provisions of the Maharashtra Regional Town Planning Act, 1966 ('M.R.T.P. Act' for short) 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. Therefore, the reservation on the plot lapsed on December 16, 2005 under the relevant provisions of M.R.T.P. Act. The petitioners thereupon desired to develop the plot for construction of a luxury hotel. In exercise of rule-making power conferred by the M.R.T.P. Act, the State Government had framed Development Control Rules, 1967 (the D.C. Rules' for short). The Ministry of Environment and Forests had issued Notification I on February 19, 1991 under Sections 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 said zone, as a result of which the plot belonging to the petitioners falls within the CRZ II. The petitioners submitted the plans to develop the land in question by constructing a luxury hotel in terms of D.C. Rules of 1967 on December 26, 2005. According to them, they were entitled to additional FSI of 3.73 times the FSI in addition to 1.33 FSI allowable on the said plot. It was the case of the petitioners that on December 31, 2005, the Municipal Corporation submitted a proposal to the Principal Secretary, Urban Development Department, Government of Maharashtra recommending, inter alia, to grant additional FSI as prayed for by the petitioners. On a clarification sought by the State Government from Ministry of Environment and Forests, the Union of India informed the Principal Secretary, Urban Development Department, Government of Maharashtra, that the D.C. Rules as existed on February 19, 1991 would apply to the areas falling within the CRZ Notification and not the Draft Regulations of 1989. Incidentally, it may be mentioned that the Draft Regulations of 1989 came into force on February 20, 1991. On February 21, 2007 the Ministry of Environment and Forests granted environmental clearance to the petitioners for construction of a residential hotel and commercial project subject to the terms and conditions set out therein. The case of the petitioners 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 receipt of the application and, therefore, they were entitled to a declaration that the permission was deemed to have been granted 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 D.C. Rules of 1967, the Competent Authority, with the previous approval of the Government, had authority to permit the person who had applied for permission to exceed floor space indices in respect of buildings of educational and medical relief institutions 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 D.C. Rules, 1967, they were also entitled to additional FSI of 3.73 than the permissible FSI of 1.33 available under the relevant Rules. Under the circumstances the petitioners invoked extraordinary jurisdiction of the High Court of Judicature at Bombay under Article 226 of the Constitution by filing Writ Petition No. 1627 of 2007 and prayed (1) to declare that the application submitted by them on December 26, 2005 to the Municipal Corporation of Greater Mumbai to give permission to develop the land in question 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 the D.C. 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 D.C. Rules, 1967.
(3.) The High Court, by judgment dated August 13, 2007, refused to grant the reliefs claimed by the petitioners, but directed the Government to take a decision on the application filed by the petitioners within 6 weeks from the date of order and communicate the order so passed to them. Feeling aggrieved the petitioners had filed the above numbered appeal before this Court.;