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CASE NO.: Appeal (civil)  2970 of 2006

PETITIONER: Jayant Achyut Sathe                                              

RESPONDENT: Joseph Bain D’Souza and Ors.     

DATE OF JUDGMENT: 14/07/2006

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising Out of S.L.P.(C) No.1376 OF 2006 WITH  

(C.A.No 2971/06@SLP (C) No.1375/2006, C.A.No  2972/06@SLP (C) No.1377/2006  C.A.No2973/06@ I.A.No.1 in & SLP) \005\005\005\005/06(CC 1776/06)   C.A.No 2974/06@ I.A.No.1 in & SLP) \005\005\005\005/06(CC 2095/06) C.A.No 2975/06@ I.A.No.1 in & SLP) \005\005\005\005/06(CC 2531/06) C.A.No 2976/06@SLP (C) No.2704/2006 C.A.No 2977/06@SLP (C) No.4747/2006 C.A.No 2978/06@SLP (C) No.71/2006 C.A.No 2979/06@SLP (C) No.9490/2006)

ARIJIT PASAYAT, J.

       Leave granted in each case.

                Challenge in each of these appeals is to the legality of the  judgment rendered by a Division Bench of the Bombay High  Court at Bombay in a Public Interest Litigation filed by three  citizens essentially questioning legality of Regulation 33 (7) of  the Development Control Regulations, 1991 (in short the  ’Regulations’).  These Regulations came into force with effect  from 20th March, 1991. According to writ petitioners it is in  essence delegated legislation under the Maharashtra Regional  and Town Planning Act, 1966 (in short the ’Act’).  The writ  petitioners questioned the amendment brought in 1999 which  provided for a minimum Floor Space Index (in short ’FSI’) of  2.5 plus Additional FSI required for rehabilitation of existing  tenants  plus incentive FSI on several grounds.

       The present appellant resisted the claim.            The High Court instead of deciding the core issue has by  the impugned judgment appointed some Committees to look  into several aspects which according to it had relevance for the  basic and recurring problems.

       In support of the appeals, learned counsel for the  appellants submitted that the High Court instead of deciding  the basic issue has gone into unconnected matters, has lost  sight of the fact that the views of the Committees appointed  really will be of no consequence and would not throw any light  on the legality or otherwise of the provisions which were

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challenged.  The views of the Committees cannot be a  substitute for a decision of the Court and in fact the High  Court has not made it clear as to what will be the effect of the  views of the Committees appointed and how they are to be  implemented and, in short, whether the Committees can deal  with the legality or otherwise of the impugned provisions.   Various details have been submitted to justify the legality of  the impugned provisions.  It was highlighted that the High  Court did not consider a specific plea that the amended  Regulation became operative from 1999 and for the first time  challenge was made by the three writ petitioners in 2004.  By  that time on the basis of the amended provisions, various  steps of conclusive nature have been taken by various  persons.

       In response, learned counsel for the writ petitioners  before the High Court has supported the impugned judgment  of the High Court.   

We do not think it necessary to examine the merits of the  rival contentions.  At the outset it may be stated that it is not  clear as to whether the writ petition has been disposed of by  the High Court or not.  There is no specific indication in that  regard. It is also not clear whether after the Committees  appointed express their views, what was the follow up action  to be taken and by whom.  As rightly pointed out by learned  counsel for the appellants the High Court has not dealt with  the basic issues raised in the writ 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 reiteration that  the High Court shall examine the challenge to Regulation 33(7)  as amended in 1999. The interim order passed by this Court  on 21.4.2006 shall continue to be in operation till disposal of  the matter by the High Court.  By order dated 21.4.2006 we  had directed that no third party right shall be granted without  leave of this Court. During the pendency of the matter before  the High Court it shall be for the High Court to deal with that  aspect.  It is made clear that the High Court shall deal with  only the issue relating to validity of the provisions and  maintainability of the Writ Petitions.  Certain parties have filed  Intervention Applications before this Court. These Applications  shall be dealt with by the High Court.  The High Court is  requested to dispose of the matter within three months from  the date of receipt of the order. It is open to the parties to  bring to the notice of the High Court our order.   

       Place these Appeals for further hearing in the first week  of December, 2006.