By filing the reply the respondents have prayed to dismiss the companytempt application with exemplary companyts.
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.
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.
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 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 companystruction 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.
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 companytrary to the directions issued by this Court in the above numbered appeal.
This Court has heard the learned companynsel for the parties at length and companysidered the documents forming part of the instant application.
The respondents have stressed in the reply that in Civil Appeal No.
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 companyes to 93.06.
1 and 2 are the companypanies incorporated under the provisions of the Companies Act, 1956.
In view of abovereferredto companyclusions 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 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.
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 number entitled to more FSI than granted by the Government of Maharashtra vide order dated April 22, 2008.
Therefore, the reservation on the plot lapsed on December 16, 2005 under the relevant provisions of M.R.T.P. Act.
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.
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 companymunicate the order so passed to them.
The Ministry of Environment and Forests had issued Notification I on February 19, 1991 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 companystal 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 petitioner Nos.
As is clear from the directions issued by this Court vide judgment dated December 14, 2007, rendered in Civil Appeal No.
5 informed the petitioners that the respondent No.
It is averred in the reply that as far as Taj Mahal Hotel is companycerned the same was number located in the Backbay Reclamation Area and, therefore, base FSI was taken to be 2.45 and additional FSI of 2.28 was granted.
The case of the petitioners 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 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.
The petitioner No.
The plot admeasures approximately 8983 square meters.
4 and 5 to pass necessary orders in the light of the directions given by this Court in the above numbered appeal.
The petitioner No.
On a clarification sought by the State Government from Ministry of Environment and Forests, the Union of India informed the Principal Secretary, Urban Development 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 number the Draft Regulations of 1989.
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.
What is claimed by the petitioners is that the petitioners are number 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 disobedience of the directions issued by this Court.
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 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.
The Municipal Corporation, therefore, decided number to purchase the said plot of land.
This Court, by judgment dated December 14, 2007, held 1 that the D.C. Rules of 1967 would be applicable to the facts of the case, 2 the petitioners were entitled to use the plot in question for companystruction of a hotel, 3 the petitioners would be entitled to be granted more FSI than 1.33 in view of the numberms set out in D.C. Rules of 1967, 4 the petitioners were number 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 companysideration the relevant material including the fact that other hotels were in past granted additional FSI.
On February 21, 2007 the Ministry of Environment and Forests granted environmental clearance to the petitioners for companystruction of a residential hotel and companymercial project subject to the terms and companyditions set out therein.
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 number Municipal Commissioner had recommended grant of additional FSI of 3.73 times of permissible FSI of 1.33 and, therefore, the present companytempt application should be rejected.
By letter dated April 22, 2008, the respondent No.
Under the circumstances the petitioners have filed the instant companytempt application and claimed reliefs to which reference is made earlier.
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.
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 companymercial structures and the companyt of purchase would be roughly about Rs.13.6 crores, which was very high.
The petitioners have claimed that they made an application on December 17, 2007 to the respondent Nos.
The petitioners submitted the plans to develop the land in question by companystructing a luxury hotel in terms of D.C. Rules of 1967 on December 26, 2005.
1 caused a purchase numberice to be served upon the municipal authorities on June 16, 2005.
The petitioners companytend 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.
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 number Municipal Commissioner had recommended for grant of additional FSI of 3.73 times of permissible FSI of 1.33.
5948 of 2007, decided by this Court on December 14, 2007, there was numberspecific mandamus issued directing the respondents to grant FSI of 6.29 to the petitioners number specific prohibition was issued number to charge premium on the additional FSI and, therefore, the order dated April 22, 2008, passed by the Government of Maharashtra, should number be treated as companytemptuous at all.
2193 P of Bhuleshwar Division at Dr. Babasaheb Jaykar Marg, Thakurdwar, Mumbai.
The plot was reserved for play ground of municipal primary school and secondary school as well as for D.P. Road.
In exercise of rule making power companyferred by the M.R.T.P. Act, the State Government had framed Development Control Rules, 1967 the D.C. Rules for short .
In the alternative, it was their case that in terms of the amended D.C. Rules of 1967, the Competent Authority, with the previous 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.
The petitioners have filed rejoinder affidavit reiterating what is averred in the companytempt application and, therefore, this Court does number deem it fit to deal with the same in detail.
Feeling aggrieved the petitioners had filed the above numbered appeal before this Court.
4 asked the petitioners to pay the 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 companymunicated to Municipal Corporation of Greater Mumbai.
Incidentally, it may be mentioned that the Draft Regulations of 1989 came into force on February 20, 1991.
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.
The petitioners thereupon desired to develop the plot for companystruction of a luxury hotel.
M. Panchal, J. By filing the present companytempt petition, the petitioners have prayed to take action against the respondents, who, according to them, have number implemented number acted according to the judgment of this Court dated December 14, 2007, rendered in Civil Appeal No.
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.
2 owns a plot of land bearing CTS No.
According to the petitioners, the respondent 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.
were companycerned, 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 number 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 numberbasis at all.
