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CASE NO.: Appeal (civil)  6433 of 2005

PETITIONER: Mass Holdings Pvt. Ltd.                          

RESPONDENT: Municipal Corpn. of Greater Mumbai & Anr.        

DATE OF JUDGMENT: 21/10/2005

BENCH: Ruma Pal & Dr. AR. Lakshmanan

JUDGMENT: J U D G M E N T (Arising out of SLP (C ) No. 19929 of 2005) WITH

C.A. No. 6434 of 2005  @SLP(C ) No.19931/2005 &  C.A. No 6435 of 2005  @SLP (C) No.19933 of 2005

RUMA PAL, J.

       Leave granted. The appellant had filed a writ petition before the Bombay  High Court challenging a notice dated 26th May, 2004 issued by  the respondents, calling upon the appellant to remove its  hoarding as it was erected in a Heritage Precinct.  The impugned notice had been issued pursuant to an  order of the High Court dated 5th May, 2004 confirming a report  of the Maharashtra Heritage Conservation Committee (set up  by the State Government under the Heritage Regulations, 1995  and referred to hereafter as the ’MHCC’) filed in Writ Petition  No. 1132 of 2002.  That writ petition had been filed  by way of  public interest litigation by the added respondent herein.  The  writ petition had inter alia sought for an order from the High  Court directing the removal of hoardings.  The High Court had  referred the matter to an Expert Committee set up by the High  Court.  The Expert Committee submitted two lists of hoardings  which, according to the Committee, violated the Heritage  Regulations for Greater Bombay, 1995.  On 19th April, 2003, the  High Court granted liberty to the owners of the hoardings to file  representations before the MHCC raising any objections that  they might have to the removal of the hoardings. The MHCC  heard the objections of the hoarding owners and others  concerned with the hoardings, and ultimately submitted a report  to the High Court.  The MHCC was of the opinion that various  hoardings including the appellant’s hoardings, violated the  guidelines formulated relating to heritage buildings/structures  and in heritage precincts.  The High Court directed the  implementation of the report of the MHCC by the respondents  on 5th May, 2004.  Consequently the impugned notice was  issued on 26th May, 2004.  In response to the notice the appellant filed a  representation before the MHCC contending that the  Mahalaxmi Precinct was not included in the heritage list.  The  appellant did not wait for the outcome of the representation, but  filed a writ petition before the High Court impugning the notice  and obtained an interim order as we have already noted.   In  the meanwhile, the MHCC rejected the representation of the

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appellant and also filed an affidavit in the pending writ petition  in which it reiterated inter alia that the appellant’s hoardings  should be removed.  The High Court found that the reasoning  of the MHCC was neither perverse nor illegal. Although initially  the High Court had granted an interim order restraining the  respondents from taking any steps to demolish the appellant’s  hoarding, ultimately by an order dated 21st July, 2005, the High  Court dismissed the writ petition.  The interim order was  continued till 15th October, 2005, in order to enable the  appellant to test the correctness of the order of the High Court  before this Court. The special leave petition filed by the appellant was  entertained by us on 7th October, 2005 when we issued notice  and also stayed the demolition of  the hoardings till 18th  October, 2005. On 18th October, 2005, the matter was heard extensively.   The appellant contended that the hoarding was situated within  the Mahalaxmi Precinct, which was not a Heritage Precinct.   Our attention was drawn to the various entries in the Schedule  to the Resolution dated 24th April, 1995 of the  Urban  Development Department from which, according to the  appellant, it was amply clear that the Mahalaxmi Precinct was   listed as a "location" and not as a Heritage Precinct.  It was also  submitted that the MHCC had filed an affidavit before the High  Court incorrectly construing the schedule.  It was submitted that  the interpretation put by MHCC, which was accepted by the  High Court, in fact amounted to an amendment of the schedule  for which there was a specific procedure and the procedure  could not be circumvented by a process of interpretation. It was  stated that the there were other hoardings in the precinct, which  had not been proceeded against by the respondents and in fact  in one of the Special Leave Petitions (SLP \005 CC  No.4817/2004); (M/s. Mittle Brothers and Anr. Vs. State of  Maharashtra ) this Court had issued an interim order staying  the operation of the judgment and order of the High Court in so  far as it pertained to that case. As we have accepted the submissions of the  respondents, it is not necessary to note their submissions in  support of the High Court’s decision. Perhaps we could have  merely dismissed the Special Leave Petition. But having regard  to the number of matters filed we were of the view that we  should give our reasons in support of the dismissal.   The Maharashtra Regional and Town Planning Act, 1966  (referred hereinafter as the ’Act’) provides for preparation,  submission and sanction of a development plan.  Section 22 of  the Act which provides for the contents of the plan states that  the development plan shall provide for specified matters  including  "preservation of features, structures or places of  historical, natural, architectural and scientific interest and  educational value and all heritage buildings and heritage  precincts". In exercise of powers under Section 31(1) of the Act, the  State Government by Resolution dated 21st April, 1995  sanctioned Development Control Regulation No.67 along with  appendix VII-A as specified in the schedule appended to the  resolution and fixed 1st June, 1995 as the date on which the  Regulation 67 would come into force.   Regulation 67 broadly deals with the Conservation of   listed buildings, areas, structures and precincts of historical  and/ or aesthetical and /or architectural and/or cultural value   (heritage buildings and heritage precincts).  Regulation 67 (2)  inter alia forbids any addition or alteration of buildings which  were either listed as heritage building or as listed heritage  precincts except with the prior written permission of the  Commissioner.  Sub-regulation (2) of  Regulation 67 further

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provides that " the Commissioner shall act on the advice of/in a  consultation with the Heritage  Conservation Committee to be  appointed by the Government" provided that "in exceptional  cases for reasons to be recorded in writing the Commissioner  may overrule the recommendations of the Heritage  Conservation Committee". The list of buildings and precincts to which the Regulation  was to apply are classified into three grades namely;  Grade-I,  II or III. Heritage Grade I buildings/ precincts are those which  are of  National Heritage Importance and are the prime land  marks of the city of Mumbai.  No intervention either external or  internal except absolutely essential and minimal changes can  be affected in respect of such building/or precincts. Grade-II  heritage buildings/ precincts are of lower historical value or  aesthetical merit than  Grade-I building/ precincts. As far as the  Grade-II  buildings are concerned, internal changes were  generally be permitted but external changes would be  subjected to scrutiny. Grade-III precincts however are of lower  historical, aesthetical or sociological interest.   External and  internal changes could be permitted in accordance with the  guidelines.  By a second Resolution dated 24th April, 1995 the State  Government sanctioned a list of buildings and precincts of  historical, aesthetical, architectural or cultural value as per the  scheduled annexed to that resolution.  The schedule contains in  all 633 items as Heritage buildings or precincts  with their  "location" described in the next column. Many of the items are  overlapping.  For example item 633 pertains to Fort Precinct  which includes 14 sub precincts. Within those precincts there  are several buildings which have been separately listed  including the Bombay High Court at item 77.  Again item 107  mentions "all buildings at Dadabhai Naoroji Road with a special  focus on Fort House" This is followed by items 108 to 127 each  of which relate to building/structure on the Dada Bhai Naoroji  Road.   There is apparently no consistency in the way that the  list has been prepared. Not only is there overlapping but there  are, at times, inaccuracies. For example against   item 442  under the heading, ’location’ in respect of several buildings  within the Mahalaxmi Precinct, the word appearing is "deleted".  If one were to read the list as it is, one would have to come to  the absurd conclusion that the location of the several buildings  mentioned in 442 was "deleted". Therefore a strict or literal  construction of the list would be misplaced.  It is true as far as Mahalaxmi Precinct is concerned,  although there is a separate map indicating the precinct along  with all other precincts, it does not appear under the column  "Nature of Monuments Building, Precincts etc." but in the  column headed  "Location", against serial Nos. 441 and 442.  But locations have generally been indicated in the list with  reference to roads.  A precinct cannot be a "location" since it is  really an area. In such circumstances it is reasonable to   ascertain the intention of the State Government  from the map  annexed to the list. The fact that no map of any other location  has been given coupled with the fact that only maps of heritage  precincts have been given  in our opinion would certainly  indicate that Mahalaxmi precinct is indeed a listed heritage  precinct  against serial No.442 as mentioned in the map. The list also refers to five precincts, namely Banganga  Precincts mentioned against Sl. No. 384, Opera House  Precincts, Sl. No.401, Gamdevi Precinct, Sl. No.432,  Mahalaxmi Precinct, Sl. No.442, Khotachiwadi Precinct, Sl.  No.508, Matharpakhadi Precinct, Sl. No.522 and  Bandra  Precinct, Sl. No. 612.  There is no other precinct which is  mentioned as a location.   The MHCC has taken into consideration the nature of the

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list, particularly the maps annexed thereto, to come to the  conclusion that the mentioning of Mahalaxmi Precinct under the  heading of "location" was clearly not the intention of the State  Government, but the intention was to treat the precinct along  with all other precincts  of which maps are given as heritage  precincts.  The High Court endorsed this opinion.  We see no  reason to take a different view. Additionally the High Court has  noted that the MHCC had said that ever since June, 1995 when  the Regulation 67 came into force, all Development proposals  relating to buildings and properties situated in the Mahalaxmi  Precincts had been submitted  to it for clearance.  This again  indicates that Mahalaxmi Precinct is a Grade-III Heritage site.  As far as the case of M/s. Mittle Brothers (relied upon by  the appellants), is concerned, it appears from the order  issued  by us in that matter on 4.6.2004, that this Court had stayed the   operation of the order of the High Court to the extent that it had  directed hoardings which are contained in Precincts proposed  to be added to the list of heritage buildings/ structures to be  demolished.  In the present case  there is no question of a  proposed inclusion of buildings/precincts in the heritage list. There is also no question of amendment of the list  appended to the Resolution dated 24th April, 1995. The  intention of the State Government as has been culled out by the  MHCC and affirmed by the Bombay High Court and as found by  us is that the list as it exists includes Mahalaxmi Precinct as a  heritage precinct. In the circumstances aforesaid, the appeals  are  dismissed and the interim order is vacated.  However the  appellant is given the liberty to demolish the hoardings itself  within a period of 10 days from today. If it fails to do so, it will be  open to the respondents to take steps pursuant to the  impugned notice.  No order as to costs.