Shri Mohammed Khalid Mukhtar Ahmed Shaikh v. Bhiwandi Nizampur City Municipal Corporation & Ors.

Mr. A.V. Anturkar with Sachin Dhakephalkar i/b S.B. Deshmukh, for the Petitioner. Mr. R.S. Apte, Sr. Counsel with N.R. Bubna for Respondent Nos.1 and 2. Mr. A.A. Kumbhakoni i/b L.M. Acharya, for Respondent No.5. Mrs. J.S. Pawar, Additional G.P. for Respondent Nos. 5 to 9. ..... CORAM: MOHIT S. SHAH C.J. AND S.C. DHARMADHIKARI, J. DATE : 12th AUGUST, 2010. P.C. What is challenged in this petition under Article 226 of the Constitution of India purporting to be the Public Interest Litigation is the decision dated 19.3.2008 of the respondent-municipal corporation granting permission for construction of the shopping complex building on the suit property bearing survey nos.105, 142, 143 situate at village Nizampur within limits of Bhiwandi Nizampur Municipal Corporation, which land is in the public/semi-public zone in the township plan. 2 WP.4617/2009 2] It is contended by the learned counsel for the petitioner that since the land in question is in public/semi-public zone, no commercial activity is permissible. The municipal corporation by the impugned resolution has permitted respondent no.4 to construct municipal office building and shopping complex, without getting variation made under sections 91 and 92 of the Maharashtra Regional Town Planning Act, 1966 (MRTP Act). 3] Learned counsel for the respondent-municipal corporation has pointed out that as per the impugned resolution respondent no.4 is not only constructing municipal office building having ground plus five floors of 10,000 sq. mtrs. building area (90% of construction of which has already been completed) without charging even a single rupee, but respondent no.4 has also paid Rs.3.03 Crores to respondent-municipal corporation by way of premium for taking on lease the remaining area of 7300 sq. mtrs which is only about 40% of built up area which is to be constructed by respondent no.4. It is further submitted that out of 17300 sq.mtrs. of built up area, respondent no.4 first started construction for the municipal office building which will occupy 10000 sq.mtrs, and respondent no.4 will now construct and keep on lease basis only 7300 sq.mtrs. of built up area for a period of 99 years, for which respondent no.4 has already paid Rs.3.3 Crores to the municipal corporation. 4] It is further submitted that after respondent no.4 completed 90% construction of the municipal office building of

10000.00 sq. mtrs., the present petition has been filed. It is also submitted on behalf of respondent no.4 that the petitioner who is a 3 WP.4617/2009 councillor in respondent-municipal corporation and was present in the meeting when impugned resolution was passed, but no objection was raised by the petitioner against the impugned resolution. 5] It is, therefore, submitted that the petition deserves to be dismissed on the ground of delay laches acquiescence on the ground of the petitioner’s mala fides and also on merits. 6] It is submitted by the learned counsel for the respondent- municipal corporation as well as respondent no.4 that under the Development Control Regulations, in a public/semi-public zone, it is permissible to construct a municipal office building and also to construct a sports complex-cum-shopping centre. All that the municipal corporation has permitted is construction of municipal corporation building of 10000 sq. mtrs. of built up area with shopping centre of 7300 sq. mtrs. and, therefore, the respondent-corporation has not granted permission for any non permissible user. Strong reliance is placed on the decision of Apex Court in Forward Construction Company and Others Versus Prabhat Mandal (Regd.) Andheri and Others reported in (1986) 1 SCC 100. 7] Having heard the learned counsel for the parties, we find considerable substance in the submissions made by the learned counsel for the respondent-corporation that the Development Control Regulations permit the Corporation to grant permission for construction of a municipal corporation building and also sports complex-cum-shopping centre. Hence, the respondent-corporation did not commit any illegality in permitting construction of municipal 4 WP.4617/2009 corporation building of 10000. sq. mtrs. built up area and shopping complex of 7300 built up area. 8] In Forward Construction case (Supra), the Apex Court in similar fact situation held that when a very substantial portion of the acquired plot was being utilized for the purpose of which it was acquired and the commercial use to which a small portion was being put would substantially augment the coffers of the corporation for the benefit of the public at large without spending any further amount on the development, the plot was being substantially used for the purpose for which it had been acquired and the additional use of the property would not make the use of the property for altogether a different purpose. The Apex Court further examined the meaning of the word “change” and made the following observation: “ So, the general meaning of the word ‘change’ in the two dictionaries is ‘to make or become different, to transform or convert’. If the user was to be completely or substantially changed only then the prior modification of the development plan was necessary. But in the instant case the user of the plot has not been changed. It has been used for a bus depot combined with a commercial use to augment the income of the corporation for public purpose. In this view of the connotation of the word ‘change’ the proviso has no application to the present case and the High Court in our opinion was not quite justified in allowing the writ petition only on the basis of the proviso to Building Regulation 3. 9] Applying the above principle to the facts of the present petition, we are satisfied that when the corporation is going to get 5 WP.4617/2009 10,000 sq. mtrs. out of 17300 sq. mtrs. built up area, without the Municipal Corporation spending even one rupee for getting such construction and the Municipal Corporation has also been paid a substantial sum of Rs.3.03 Crores as premium for grant of lease for remaining built up area of 7300 sq. mtrs., the land is being substantiallly used for the purpose of constructing Municipal Corporation building. In this view of the matter, there is no question of corporation being required to obtain any permission for change of user as contended by the learned counsel for the petitioner. 10] The very fact that the petitioner who is councilor in the respondent-corporation was present when the resolution was passed and did not raise any objection and the present petition came to be filed when 90% construction work of municipal office building has been completed speaks volumes of about lack bonafides of the petitioner. 11] In view of the above direction, the petition deserves to be dismissed and is dismissed. Having regard to the fact that the petitioner is councillor, did not raise any objection when the resolution was passed and that the present petition came to be filed when more than 90% construction work of municipal office building was completed and the petitioner obtained ad-interim stay restraining respondent no.4 from constructing shopping centre and the injunction has been operating against respondent no.4 since May 2009, we are of the view that this is a fit case for imposing on the petitioner costs of the petition quantified at Rs.50,000/-.The said amount of Rs.50,000/- 6 WP.4617/2009 shall be paid by the petitioner to respondent no.4 within one month from today, failing which respondent-corporation shall pay the amount to respondent no.4 from out of the amounts, if any, payable by the corporation to the petitioner his the capacity as a councilor of the respondent-corporation. The petition is dismissed of with the above directions. CHIEF JUSTICE S. C. DHARMADHIKARI, J.