Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Contempt Petition (Civil) No. 102 of 2008

In

Civil Appeal No. 5948 of 2007

Suresh Estate Pvt. Ltd. & others … Petitioners

Versus

Municipal Corporation of Greater Mumbai And others … Respondents

J U D G M E N T

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  play  ground  of  municipal  primary

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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

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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

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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

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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  extra  ordinary

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

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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.

4. This Court, by judgment dated December 14, 2007, held

(1) that the D.C. Rules of 1967 would be applicable to the

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facts of the case, (2) the petitioners were entitled to use

the  plot  in question for  construction  of  a  hotel,  (3)  the

petitioners would be entitled to be granted more FSI than

1.33 in view of the norms set out in D.C. Rules of 1967, (4)

the petitioners were not entitled to a declaration that the

permission applied for was deemed to have been granted

to them as the planning authority had failed to indicate

its decision within 60 days from the date of receipt of the

application, and (5) the respondents cannot be directed to

grant  the  permission  to  develop  their  plot  with

demanded  FSI  but  the  respondent-State  should  be

directed to exercise discretion vested in it under Rule 10

(2) of the D.C. Rules, 1967 after taking into consideration

the relevant material including the fact that other hotels

were in past granted additional FSI.

5. In  view of  abovereferredto  conclusions  the appeal  was

partly allowed and the State Government was directed to

take  a  decision  on  the  application  submitted  by  the

petitioners  seeking  permission  to  develop their  plot  on

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the  basis  that  the  provisions  of  D.C.  Rules,  1967  were

applicable  and decide the application submitted by the

petitioners in the light of recommendations made by the

Competent Authority as well as the fact that other hotels,

as pointed out by the petitioners, were also granted more

FSI  than  1.33  permissible  under  Rule  10(1)  of  the  D.C.

Rules, 1967.   

6. The  petitioners  have  claimed  that  they  made  an

application on December 17, 2007 to the respondent Nos.

4  and  5  to  pass  necessary  orders  in  the  light  of  the

directions  given  by  this  Court  in  the  above  numbered

appeal.  By letter dated April 22, 2008, the respondent No.

5 informed the petitioners that the respondent No. 4, i.e.,

the Maharashtra  Government,  had approved additional

FSI  of  3.67  on  the  net  plot  area  subject  to  payment  of

premium at  25% for  first  100% additional  FSI,  50% for

second  100%  additional  FSI  and  100%  for  remaining

additional  FSI.   According  to  the  petitioners,  the

respondent  No.  4  asked  the  petitioners  to  pay  the

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premium to the Government as well as to the Municipal

Corporation  of  Greater  Mumbai  and  informed  that  on

payment of the amount of premium, the order for grant

of additional FSI would be communicated to Municipal

Corporation of Greater Mumbai.  The assertion made by

the petitioners is that they are entitled to FSI of 6.29 on

gross plot area as per Rule 10(2) of D.C. Rules, 1967, but

the  respondents  have  approved  additional  FSI  of  3.67

times of net plot area, which is contrary to the directions

issued by this Court in the above numbered appeal.  The

petitioners contend that as the other hotels were granted

additional FSI over and above the FSI of 1.33 permissible

under the Rules,  the decision to grant additional FSI of

3.67  on the  net  plot  area  is  in  breach  of  the  directions

issued by this Court.  What is claimed by the petitioners

is that the petitioners are not liable to pay any premium

at all as other hotels were granted additional FSI without

payment of premium to the Government and, therefore,

the  respondents  should  be  hauled  up  for  willful

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disobedience of the directions issued by this Court.  In the

alternative, it is claimed by the petitioners that even if the

premium is to be calculated, the same works out at Rs.28

crores as against Rs.128 crores, which is calculated by the

respondents  and,  therefore,  by  imposing  premium  the

respondents have brushed aside the directions issued by

this Court for which appropriate action should be taken

against  them.   Under  the  circumstances  the  petitioners

have filed the instant contempt application and claimed

reliefs to which reference is made earlier.

7. On service of notice the respondents have filed counter

affidavit  controverting  the  averments  made  in  the

contempt application.  In the reply it is claimed that this

Court  had  left  the  question  of  quantum  of  FSI  to  be

granted  to  the  discretion  of  the  Government  and  after

taking into consideration the relevant factors, the decision

has  been  taken  to  grant  additional  FSI  of  3.67  to  the

petitioners,  which cannot  be  said to  be  contrary  to  the

directions  issued by this  Court.   It  is  mentioned in the

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reply that the base FSI of 3.5 was taken as far as hotels

Hilton Tower, Oberoi, President, etc. were concerned, as

those hotels were located in Backbay Reclamation Area of

‘A’ Ward and in addition to the base FSI, Hilton Tower

was  granted  additional  FSI  of  1.95,  Oberoi  Hotel  was

granted additiona  FSI  of  1.00  and Hotel  President  was

granted additional FSI of 0.82 whereas in the case of Taj

Mahal Hotel the base FSI of 2.45 was taken because it was

not located in the Backbay Reclamation Area and the said

hotel  was granted additional  FSI of 2.28 and, therefore,

the claim of the petitioners that on the basis of additional

FSI  granted  to  the  abovenamed  hotels,  the  petitioners

were  entitled  to  FSI  of  6.29  has  no  basis  at  all.   The

respondents  have  stressed  in  the  reply  that  in  Civil

Appeal  No.  5948  of  2007,  decided  by  this  Court  on

December  14,  2007,  there  was  no  specific  mandamus

issued directing the respondents to grant FSI of  6.29 to

the petitioners nor specific prohibition was issued not to

charge premium on the additional FSI and, therefore, the

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order dated April 22, 2008, passed by the Government of

Maharashtra,  should not be treated as contemptuous at

all.   According  to  the  respondents  the  Chief  Engineer

(Development  Plan),  MCGM  had  requested  the

Government by letter dated December 31, 2005 to grant

additional  FSI,  but  neither  MCGM  nor  Municipal

Commissioner had recommended grant of additional FSI

of 3.73 times of permissible FSI of 1.33 and, therefore, the

present  contempt  application  should  be  rejected.   In

paragraph 11 of the reply the respondents have tried to

justify  the  premium  of  Rs.128.06  crores  sought  to  be

charged  from  the  petitioners  and  pointed  out  that  the

hotel of the petitioners, which is situated in ‘C’ Ward as

per  D.C.  Rules,  1991,  is  not  entitled  to  more  FSI  than

granted by  the Government of  Maharashtra  vide order

dated April 22, 2008.  By filing the reply the respondents

have  prayed  to  dismiss  the  contempt  application  with

exemplary costs.

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8. The petitioners  have filed rejoinder  affidavit  reiterating

what  is  averred  in  the  contempt  application  and,

therefore, this Court does not deem it fit to deal with the

same in detail.

9. This Court has heard the learned counsel for the parties

at length and considered the documents forming part of

the instant application.

10. As is clear from the directions issued by this Court vide

judgment  dated  December  14,  2007,  rendered  in  Civil

Appeal  No.  5948  of  2007,  the  prayer  made  by  the

petitioners to direct the respondents to grant FSI of 6.29

was specifically refused and the State Government was

directed  to  decide  the  application  submitted  by  the

petitioners  for  sanction  of  the  plans  in  the  light  of  the

provisions  of  D.C.  Rules,  1967.   As pointed out  by the

respondents the base FSI was 3.5 in cases of Hotels Hilton

Tower, Oberoi and President as those hotels were located

in  Backbay  Reclamation  Area  of  ‘A’  Ward  and  Hilton

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Towers was granted additional  FSI of  1.95,  Oberoi  was

granted additional  FSI of  1.00  and Hotel  President  was

granted additional FSI of 0.82.  It is averred in the reply

that as far as Taj Mahal Hotel is concerned the same was

not  located  in  the  Backbay  Reclamation  Area  and,

therefore,  base FSI was taken to be 2.45 and additional

FSI  of  2.28  was  granted.   Under  the  circumstances  it

becomes evident that the additional FSI of 3.67 granted to

the  petitioners  is  much  more  than  the  additional  FSI

granted  to  the  other  hotels.   As  explained  by  the

respondents  the  Chief  Engineer  (Development  Plan),

MCGM had requested the Government vide letter dated

December 31, 2005 to grant additional FSI, as demanded

by  the  petitioners,  but  neither  MCGM  nor  Municipal

Commissioner had recommended for grant of additional

FSI of 3.73 times of permissible FSI of 1.33.  Moreover, it

is stated by the respondent in paragraph 10 of the reply

that the decision to grant additional FSI of 3.67 over and

above the basic permissible 1.33 comes to 93.06%.  On the

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facts and in the circumstances of the case it is difficult for

this Court to conclude that the decision to grant total FSI

of 5.00 to the proposed hotel of the petitioners is contrary

to the directions issued by this Court.   

11. By  this  Court’s  judgment  the  State  Government  was

directed to take a decision on the application submitted

by the petitioners to develop their plot on the basis of the

provisions  of  D.C.  Rules,  1967  with  the  discretion

available to the Competent Authority under Rule 10(2) of

the said Rules.

In paragraph 15 of the judgment, it was directed: -

“In the light of the recommendations made by the Competent Authority as well as the fact that other hotels  as  pointed out  by the appellants  were also granted more FSI than 1.33 permissible under Rule 10(1) of the D.C. Rules, 1967.”

It was urged by the petitioners that the order passed by

the authority, calling upon the petitioners to pay premium of

Rs.128.06 crores, is contrary to what had been directed by this

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Court.   As  regards  premium  payable  by  the  applicants/

petitioners, it was not a matter in issue, nor it was argued.  But

the direction was  to consider  application in accordance  with

D.C. Rules, 1967.  According to the Petitioners, if 1967 Rules are

applicable, no premium would be payable by the petitioners.  It

is also argued that the imposition of heavy premium was done

purposely to deny the benefits of the judgment passed by this

Court.  As it is a matter which came into issue subsequent to

judgment passed by this Court, we leave the matter open to be

agitated in other appropriate forum and we make it clear that

we  do  not  express  anything  on  merit  regarding  the  issue

whether the petitioners are liable to pay any premium or not.

12. The above discussion makes it very clear that there is no

willful  disobedience  of  any  of  the  directions  issued by

this  Court  while  disposing  of  the  appeal  filed  by  the

petitioners.  This Court does not find that the respondents

are  guilty  of  willful  disobedience  to  the  judgment

rendered  by  this  Court.   As  no  case  for  initiating

proceedings  for  civil  contempt  is  made  out  by  the

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petitioners  against  the  respondents,  the  instant

application  cannot  be  entertained  and  is  liable  to  be

dismissed.

13. For the foregoing reasons, the contempt application fails

and is dismissed.  Having regard to the facts of the case

there shall be no order as to costs.

...................................CJI [K.G. Balakrishnan]

.....................................J. [P. Sathasivam]

.....................................J. [J.M. Panchal]

New Delhi; December 16, 2008

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