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PETITIONER: PRATIBHA CO-OPERATIVE HOUSING SOCIETY LTD.AND ANR.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA AND ORS.

DATE OF JUDGMENT09/05/1991

BENCH: KASLIWAL, N.M. (J) BENCH: KASLIWAL, N.M. (J) PUNCHHI, M.M.

CITATION:  1991 AIR 1453            1991 SCR  (2) 745  1991 SCC  (3) 341        JT 1991 (2)   543  1991 SCALE  (1)920

ACT:      Bombay  Municipal  Corporation   Act-Housing   Society- Violation  of  building  laws-Rule  51  violation-Demolition ordered-Whether valid.

HEADNOTE:      The  appellant Co-operative Housing Society  Ltd.  made some  unauthorised constructions in a 36 storeyed  building. The Bombay Municipal Corporation issued a show cause  notice calling  upon the society to show cause 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.) since the additional Floor Space Index to the extent  of 2773 sq. mts. was gained by the  appellant.   The appellants submitted a reply to the show-cause notice.   The Administrator of the Municipal Corporation made an order  on 21st  Septmber,  1984 requiring the  appellant  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  Administrator as well as the State Government dismissed the representation and appeal by the appellant.  So the appellant filed a  writ petition  in  the High Court which also dismissed  with  the observation  that the appellant be given a choice to  reduce the  construction upto permissible limit by any  alternative proposal   within  the  four  corners  of  the   rules   and regulations  within  one month from 28th  October  1985  the Municipality may consider.      The   appellant  made  application  to  the   Municipal Corporation  giving  several alternative proposals  on  21st November  1985.   But  it also  preferred  a  special  leave petition before this court against the High Court  Judgment. The  special leave petition leave petition was dismissed  on January   17,  1986.   The  appellants  alleged  that   they submitted  another proposal to the Municipal Corporation  on 17th  February, 1986 and a meeting for  hearing  alternative proposals was fixed up by the Municipal commissioner and put forward  its case in support of the  new proposals  and  the Municipal Commissioner said he would consider the  proposals and  take  decision.  On 27th December  1988  the  appellant wrote a letter to the Municipal Commissioner to consider the alternative proposal i.e. of

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                                                      746 vertical demolition  of the building instead of  demolishing the  eight upper floors.  In January, 1989 the  officers  of the   corporation  agreed  that  demolition  can   be   made vertically so as to bring the entire construction within the permissible   Floor  Space  Index  where  as  the  work   of demolition  of  upper  eight floors  of  the  building  were entrusted  to a company by the Municipal  Commissioner.   So the appellant again filed a writ in the High Court.  It  was dismissed  by  the Single Judge as well as by  the  Division Bench dated 5th March, 1990.      The  appellants came by Special Leave Petition in  this Court;  The  main  grievance of  the  appellant  being  that vertical demolition proposal was not considered.  Inspite of orders  of  this  Court  in this  regard  to  the  Municipal Corporation  no  agreeable  solution  could  fructify.   The proposal  was  examined by the  Municipal  Commissioner  but rejected  on 13th November, 1990 and submitted the  detailed report to this Court.      Dismissing the petition the Court      HELD:  The appellant had made illegal constructions  in violation  of Floor Space Index to the extent of  more  than 24000   sq.  ft.  The  decision  taken  by   the   Municipal Commissioner  does not suffer from any want of  jurisdiction nor  is violative of any law or rules.  It is  well  settled that the High Court under Article 226 of the Constitution is not an appellate Court on the administrative decision  taken by the authorities.  Since the tendency of raising  unlawful constructions  and unauthorised encroachments is  increasing in the entire country and such activities are required to be dealt  with by firm hands.  Such unlawful constructions  are against  public  interest  and hazardous to  the  safety  of occupiers  and  residents of  the  multistoreyed  buildings. [749F, 750B, E-F]      This case should be a pointer to all the builders  that making  of  unauthorised  construction  never  pays  and  is against  the interest of the society at large.   The  rules, regulations  and  by laws are made by  the  corporations  or development  authorities  taking in view the  larger  public interest  of the society and it is the bounden duty  of  the citizens  of obey and follow such rules which are  made  for their own benefits. [750H-715B]

JUDGMENT:      CIVIL  APPELLATE JURISDICTION: Special  Leave  Petition (Civil) No. 5383 of 1990.      From  the  Judgment  and Order dated  9.3.1990  of  the Bombay High Court in Appeal No. 231 of 1990 in W.P. No. 3016 of 1989.                                                        747      K.K. Venugopal, G.L. Sanghi, Sudhir Shah and P.N. Misra for the Petitioners.      K.K. Singhavi, N.B. Shetye, D.N. Mishra and A.S. Bhasme for the Respondents.      The Judgment of the Court was delivered by      KASLIWAL,  J.  This  petition  under  Article  136  the Constitution  of  India  is directed against  the  order  of Bombay High Court dated 9th March, 1990.      Facts  necessary  and  shorn of details  are  given  as under.    Pratibha   Cooperative   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

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Bombay Municipal Corporation issued a showcause notice dated 7th  August,  1984  calling  upon  the  Housing  Society  to showcause within 7 days as to why the upper right 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 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 showcause notice by  their  letter 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                                                        748          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  Municipal 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 had been alleged that a meeting took place between the architects of the Housing Society as well as the officers  of  the  Municipal Corporation  in  January,  1989 wherein the officers of the Corporation agreed that  instead

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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 a 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                                                        749 Court by order dated 9th March, 1990.      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.      In the circumstances mentioned above on the request  of learned  counsel for both the parties to decide the case  on merits,  we  heard  the arguments in  detail  on  23.4.1991. Thereafter, in order to clarify some points we directed  the Chief Engineer cum Architect and the Municipal  Commissioner to  remain present on the next date namely, 1.5.1991 and  to keep the record of the case also ready for our perusal.      We have heard learned counsel for the parties at  great length  and have thoroughly perused the record.  It  may  be noted   that   the   Housing  Society   had   made   illegal constructions  in violation of F.S.I. to the extent of  more than  24,000 sq. ft. and as such an order for demolition  or eight  floors  was passed by  the  Administrator,  Municipal Council as back as 21st September, 1984.  The writ  petition filed against the said order was dismissed by the High Court on 28th October, 1985 and special leave petition against the said  order  of the High Court was also  dismissed  by  this Court.   The  High Court in its order  dated  28th  October, 1985  had granted an indulgence to the Housing  Society  for submitting  an alternative proposal within the four  corners of  the  rules  and regulations within  one  month  and  the municipality  to  consider  the  same.   The  proposal   was submitted  on 21st November, 1985 but in the  said  proposal there  was  no  mention of any vertical  demolition  of  the building.   The  proposal  with  regard  to  the  demolition vertically of one                                                        750

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bedroom and servant quarters on all the floors was submitted for  the  first  time on 27th  December,  1988.  During  the pendency  of the special leave petition before  this  Court, this proposal was got examined by the Municipal corporation. The  Municipal  commissioner  submitted  a  report  on  13th November,  1990 giving detailed reasons for  rejecting  such proposal.   It  is well settled that the  High  Court  under Article 226 of the Constitution is not an Appellate Court on the  administrative decisions taken by the authorities.   It cannot  be  said that the decision taken  by  the  Municipal Commissioner  suffers  from any want of jurisdiction  or  is violative  of any law or rules.  The proposal  submitted  by the  Housing Society was got examined by the architects  and engineers  and  thereafter  the  order  was  passed  by  the Municipal  Commissioner.  It cannot be said that the  action of the Municipal Corporation is tainted with mala fides.  It was  submitted  by the learned counsel for  the  Corporation that   the   Corporation  has  entrusted  the   matter   for investigation  by  the  CBI and  suitable  action  is  being processed  against  the guilty officers of  the  Corporation with whose connivance these illegal constructions were  made by the Housing Society.      It  is an admitted position that six floors  have  been completely  demolished and a part of seventh floor has  also been  demolished.   It was pointed out by Mr.  K.K.  Sighvi, learned  counsel  for the Corporation that the  tendency  of raising unlawful constructions by the builders in  violation of the rules and regulations of the Corporation was  rampant in the city of Bombay and the Municipal Corporation with its limited  sources  was  finding it  difficult  to  curb  such activities.   We are also of the view that the  tendency  of raising    unlawful    constructions    and     unauthorised encroachments  is increasing in the entire country and  such activities  are  required to be dealt with  by  firm  hands. Such unlawful constructions are against public interest  and hazardous  to  the  safety of  occupiers  and  residents  of multistoreyed  buildings.   The violation of F.S.I.  in  the present  case  was not a minor one but was to an  extent  of more than 24,000 sq. ft. Such unlawful construction was made by  the Housing Society in clear and flagrant violation  and disregard  of F.S.I. and the order for demolition  of  eight floors  had  attained finality right upto this  Court.   The order for demolition of eight floors has been  substantially carried out and we find no justification to interfere in the order  passed  by  the High Court as well as  in  the  order passed  by the Municipal Commissioner dated  13th  November, 1990.      In the result we find no force in the petition and  the same is dismissed with no order as to costs.  Before parting with the case we would like to observe that this case should be a pointer to all the                                                        751 builders  that  making of unauthorised  constructions  never pays  and is against the interest of the society  at  large. The   rules,  regulations  and  bylaws  and  made   by   the Corporations  or development authorities taking in view  the larger public interest of the society and it is the  bounden duty of the Citizens to obey and follow such rules which are made for their own benefits. S.B.                                      Petition dismissed.                                                        752