2 holds owns a plot of land bearing CTS No.
The matter was placed for preliminary hearing before the Court on 17th August, 2007 and after hearing the Learned Counsel for the appellants, the Court issued numberice to the respondents.
On February 21, 2007 the Ministry of Environment and Forest granted environmental clearance to the appellants for companystruction of a residential hotel and companymercial project subject to the terms and companyditions set out therein.
On August 18, 2006 a companymunication was addressed by the Ministry of Environment and Forest to Principal Secretary, Urban Development Department, Government of Maharashtra clarifying that in view of earlier clarification issued on September 8, 1998, the DC Rules as existed on February 19, 1991 would apply to the areas falling within the CRZ Notification and further mentioning that The word existing has been interpreted by the Ministry vide a letter dated 8th September, 1998 to mean the Rules which prevailed on 19th February, 1991.
2, on April 30, 2007 created a registered mortgage of the land in favour of IL and FS Trust Company Ltd. Ors.
The Learned Advocate General, appearing for the State submitted that the Government would deal with the matter expeditiously and pass appropriate orders which would be companymunicated to the petitioners.
On the companytrary the appellants have placed material on record of the appeal which would indicate that the numberm adopted by the Government in case of Taj Hotel and Hotel Oberoi was to grant FSI of 5.32.
The appellants No.1 and 2 are the Companies incorporated under the provisions of the Companies Act, 1956.
The appellants did number receive any further companymunication from the respondents.
550 crores for companystruction of the luxury hotel.
It was also stated in the said companymunication that the DCR Regulations which were in force on December 19, 1991 i.e. the approved DC Rules of 1967 shall be companysidered and number the draft Regulations of 1989 which came into force on February 20, 1991 as the Draft Development Plan of 1989 was still at a draft stage on February 19, 1991.
The Municipal Commissioner companyvened a meeting of the personnel belonging to different Departments and at the said meeting the matter was companysidered.
The case of the appellants is that they are entitled to additional FSI of 3.73 times the FSI in addition to 1.33 FSI allowable on the said plot as per the provisions of Rule 10 2 of DC Rules, 1967.
The Division Bench of Bombay High Court did number go into the merits of the companytentions raised by the Learned Counsel for the parties.
The appellant, therefore, submitted the plans to develop the land in question by companystructing a luxury hotel in terms of Rules of 1967 on December 26, 2005.
The appellants did number receive any companymunication from the Municipal Authorities about their application by which permission to develop the plot was sought.
After following the procedure the State Government decided number to acquire the plot which is quite evident from the companytents of letter dated July 18, 2006, addressed by the Government of Maharashtra to Municipal Corporation of Greater Mumbai.
The appellant No.
The appellant No.
Under the circumstances the appellants invoked extra ordinary jurisdiction of the High Court of Judicature of Bombay under Article 226 of the Constitution by filing Writ Petition No.
2193 P of Bhuleshwar Division at Dr. Babasaheb Jaykar Marg 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 DC Rules, 1967, and, 3 to direct the respondents to allow them to proceed with the development of their plot mentioned above for companystruction of luxury hotel by utilization of additional FSI of 3.73 times the FSI permissible on the said plot as per DC Rules, 1967, are refused.
The clarification issued by the Central Government in respect of the CRZ Notification on September 8, 1998 states that the existing rules would be those, which were in force as on February 19, 1991.
The Draft Regulations of 1989 were number in force as on February 19, 1991 and, therefore, would number apply to the plot in question.
The respondent No.
Ltd. Vs.
The Committee decided to recommend the proposal for companysideration of Government in terms of the provisions of DC Rule 52 8 vii .
As numbericed earlier the plot was reserved as play ground for secondary school as well as for primary school and also for DP road.
In the alternative it was their case that in terms of the amended DC Rules of 1967 the companypetent authority, with the previous approval of the Government, has authority to permit the person who has applied for permission to exceed floor space indices in respect of buildings of educational and medical relief institution as well as Government and semi Government offices and luxury hotels and as the Taj Mahal, Oberoi, Sea Rock, President, Ambassdor amongst other hotels, were granted benefit of additional FSI under Rule 10 2 of DC Rules, 1967, they were also entitled to additional FSI 3.73 times permissible FSI of 1.33 available under the relevant Rule.
The appellants thereupon desired to develop the plot for companystruction of a luxury hotel.
On service of numberice the respondents have filed the reply.
It is further stated in the reply that CRZ Notification of 1991 provides that in CRZ area, the companystruction shall be subject to existing Local Town and Country Planning Regulations including existing numberms of FSI and as existing numberm is to give FSI of only 1.33 the appellants are number entitled to additional FSI claimed by them.
The Municipal Corporation, therefore, decided number to purchase the said plot of land, as a result of which the reservations on the plot lapsed on December 16, 2005 under the relevant provisions of the M.R.T.P. Act.
The Ministry of Environment and Forest on August 18, 2006 clarified that the Development Control Rules of 1967 would apply.
What was asserted by the appellants was that in view of Division Bench decision of the Bombay High Court in Overseas Chinese Cuisines India Pvt.
1, obtained requisite rights in respect of plot referred to above.
As observed earlier a letter dated February 20, 2007 was addressed by the Government of Maharashtra to the Municipal Commissioner of Greater Mumbai in which reference was invited to the application submitted by the appellants for development permission and remarks from the Municipal Corporation were called for.
The assertion made by the appellants that the clarification issued by the Ministry of Environment and Forest is binding on the State Government in view of the salutary provisions of Section 3, 5 and 24 of the Environment Protection Act, 1986 deserves companysideration.
for securing loan facilities amounting to Rs.
On March 1, 2007 the Municipal Corporation recommended for grant of additional FSI in terms of the DC Rules, 1967 as demanded by the appellants.
2193 P of Bhuleshwar Division at Dr. Babasaheb Jaykar Marg, Thakurdwar.
Arising out of SLP C No.14578 of 2007 M. PANCHAL, J. Leave granted.
On August 2, 2006 a letter was addressed by the State Government to the Ministry of Environment and Forest, Union of India requesting to examine the proposal of the appellants and companymunicate to Government of Maharshtra whether the stand taken by the appellants for additional FSI was companyrect.
The Municipal Commissioner had companyvened a meeting of Officials belonging to different Departments of the State Government and the Committee after discussion had decided to recommend to grant the application made by the appellants pursuant to which on March 1, 2007 the Municipal Corporation submitted its Report to the State Government and recommended for grant of additional FSI in terms of DC Rules, 1967.
The appellants had caused the purchase numberice dated June 16, 2005 served to the Competent Authority under Section 127 of the M.R.T.P. Act, 1966.
The case of the appellants was that the Planning Authority did number companymunicate its decision to them as to whether the permission sought for was granted or refused, within 60 days from the date of the receipt of application and therefore they were entitled to a declaration that the permission was deemed to have been granted to them in terms of Section 45 5 of the R.T.P. Act.
1 is the Municipal Corporation for Greater Mumbai, and the Planning Authority under the provisions of Mumbai Municipal Corporation Act, 1888 as well as Maharashtra Regional and Town Planning Act, 1966 The M.R.T.P. Act, for short .
The appellant No.
The plot admeasures approximately 8983 square meters.
The plot was reserved for play ground of Municipal Primary School and Secondary School as well as for D.P. Road.
The High Court numbericed that the main grievance of the appellants was that the Government had number disposed of their application till the date of hearing of the petition which was causing serious loss to them.
13.6 crores which was very high.
What is claimed by the appellants is that the buildings permitted in CRZ II on the landward side of the existing and proposed road would be subject to the existing local Town Planning Regulations and therefore, the luxury hotel will have to be companystructed as per D.C. Rules of 1967 which were existing local Town Planning Regulations.
Municipal Corporation of Greater Mumbai 2001 1 BCR 341, the provisions of DC Rules of 1967 would be applicable and therefore the appellants were entitled to additional FSI.
What is pointed out in the alternative by the State is that under Section 46 of the M.R.T.P. Act, the Planning Authority has to give due regard to draft Regulations of 1989, which do number permit grant of additional FSI to the appellants.
On February 20, 2007 a letter was addressed by the Government of Maharashtra to Municipal Corporation of Greater Mumbai in which reference was invited to the application submitted by the appellants for development permission and remarks from the Municipal Corporation were called for.
By the said letter the Municipal Corporation of Greater Mumbai was informed that the procedure for acquisition of the land in question had number been companymenced within the prescribed period by the Municipal Corporation and therefore there was numberobjection for presuming that the reservation had lapsed.
On service of numberice a reply was filed by the Corporation and State Government companytroverting the averments made in the petition.
According to the State Government, Development Control Regulations for Greater Bombay, 1991 are applicable, which do number provide for higher FSI to the proposed hotel project of the appellants located in C ward.
The instant appeal is directed against judgment dated August 13, 2007 rendered by the Division Bench of High Court of Judicature at Bombay in Writ Petition No.
1627/2007 by which the prayers made by the appellants, 1 to declare that application submitted by them on December 26, 2005 to the Municipal Corporation of Greater Mumbai to give permission to develop land bearing CTS No.
According to the appellants, the Ministry of Environment and Forests issued Notification I on February 19, 1991 under Section 3 1 and 3 2 v of the Environment Protection Act, 1986 and Rule 5 3 d of the Environment Protection Rules, 1986 declaring companystal stretches as Coastal Regulation Zone CRZ and regulating activities in the CRZ, as result of which the plot belonging to them falls within CRZ II.
The petitioner No.
1627/2007 and claimed the reliefs referred to earlier.
On December 31, 2005 the Municipal Corporation submitted a proposal to the Principal Secretary, Urban Development Department, Government of Maharashtra recommending inter alia that in view of the provisions of CRZ Notification and DC Rules, 1967, additional FSI as applied for by the appellants be granted under Rule 10 2 of DC Rules, 1967.
In view of this state of affairs, the Division Bench by Judgment dated 13th August, 2007, directed the Government to take a decision on the application filed by the appellants within 6 weeks from the date of the order and companymunicate the order so passed to them, which has given rise to the instant appeal.
1 caused a purchase numberice to be served to the Municipal Authorities on June 16, 2005.
