By Speed Post/Hand/FAX
MOST URGENT & TIME BOUND
9th
May, 2013
To
1.
The Principle Secretary,
Ministry of Urban
Development,
Mantralya,
Mumbai
2.
The Commissioner,
Municipal Corporation for
Greater Bombay,
Mumbai
3.
The Jt. Commissioner of Police,
(Law & Order),
Mumbai Police
4.
The Chief Fire Officer,
Mumbai Fire Department,
Mumbai
5.
The Jt. Commissioner of Police,
Mumbai Traffic Police,
Mumbai
6.
The Managing Director,
Mumbai International
Airport Private Limited,
Terminal 1B,
Santacruz East,
Mumbai
7.
The Managing Director,
Mumbai Metropolitan
Regional Development Authority
The Deputy Director of
City
Planning, Greater
Mumbai,
8.
The Deputy Chief Engineer,
Traffic &
Co-ordination,
MCGM, Mumbai
Subject:
Security threat upon the Domestic Airport and Violation Permissions to the
Sahara Star Hotel.
Respected Sir,
With reference to the judgement passed
by the division bench of Hon’ble Mr. Justice F.I. Rebello & Hon’ble Mr.
Justice Anoop V. Mohta of the Hon’ble High Court of Bombay dated 30/03/2007 in
the Writ
Petition No. 1722 of 2006, in which the
Sahara Star Hotel, obtained extra FSI from the Government of Maharashtra with
the permission to build 3 level parking for 627 vehicle; even the Jt.
Commissioner of Police (Law & Order) showed concern over the security
threat posed to the Domestic Airport with connection to this matter.
The Jt. Commissioner had addressed
the Principal Secretary of the Ministry of Urban Development, Government of
Maharashtra. It is also noteworthy that the entry and exit gates of this
facility are on the main entry road of the airport and its junction, and all
the security vetting for these cars is done on the main road, leading to major
traffic congestion and inevitable poses are great risk to security of the
airport. The Joint Commissioner of Police (L & O) by his letter dated 8th
September, 2006, addressed to the Principal Secretary, Urban Development
Department, in so far as security concern set out that the additional FSI
should be granted in such a way that the expansion of hotel Sahara Star will
not further congest the already narrow access road. After expansion, ample
parking space should be provided. The vertical expansion if granted beyond a
certain limit may cause a serious security concern with respect to the safety
of domestic airport.
The Hon’ble Court in its’ order also
observed that, “With reference to above subject Sahara Star Hotel has proposed to
convert the existing hotel building having ground floor (part basement) + 5
upper floors into 3 basement + ground floor + 5 upper floor structure. The
applicant also proposed to provide 627 nos. of parking spaces (209 on each
basement) against the required 422 nos. of parking spaces as per D.C.R......”
The
Sahara Star Hotel construction is still going on, within 50 -100 meters of the Air Traffic Control (ATC) tower;
which is also a possible security threat.
We would like to draw your attention
further, in the space allotted and approved by the Government of Maharashtra,
is exclusively meant for the Parking Facilities in the basement levels of this
hotel, however, the same is being utilized as commercial space, for offices of
the Ambey Valley etc. It is pertinent to note that, not only it’s violation of
the law and fire & safety norms, it is also an additional risk to the
domestic airport security.
As you are aware that we had also filed
the Writ Petition (L) No.1185 of 2013
before the Hon’ble High Court of Bombay, raising security concerns over such
activities taking place in and around the Domestic and International Airports.
Hence, we request you to take immediate
and necessary action with connection to the above mentioned matter in the
interest of security of our Airports in the city.
We hope that look upon this matter with
utmost concern and look into the matter on an urgent basis.
Thanking you,
For Mumbai Taximen Sangathan
Sanjay Khemka
General Secretary
Bombay High Court
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O.O.C.J.
WRIT PETITION NO.1956 OF 2006
1. Hotel Sahara Star
Sahara Hospitality Ltd.,
formerly known as Batra Hospitality Pvt.Ltd.
A company registered uder the Companies
Act, 1956 having its Registered Office at
Sahara India Point, CTS No.40/44,S.V. Road,
Goregaon West), Mumbai-400 104.
2. Vivek Kumar, .. Petitioners
The Assistant Director and Principal Officer
of the Petitioner No.1, having his office at
Hotel Sahara Star, Domestic Airport,
Vile-Parle (East), Mumbai-400 099.
v/s.
1. The State of Maharashtra
through Principal Secretary,a
Urban Development Ministry,
Manatralaya, Mumbai-400 032.
2.Municipal Corporation of Greater Mumbai,
a Statutory Corporation Constituted under
the Mumbai Municipal Corporation Act, 1888,
having its office at Municipal Head Office
Building, Mahapalika Marg,
Mumbai-400 001.
3. The Municipal Commissioner of Municipal
Corporation of Greater Mumbai, having
his office at Municipal Head Office
Building, 1st Floor, Mahapalika Marg,
Mumbai- 400 001. .. Respondents
Mr.K.K. Singhvi, senior counsel with Mr. T.N. Subraniam, senior
counsel, Mr. D. Mehta, Mr. P.Jaiswal, Mr. A. Mehta, Ms. Sushma
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Joshi i/by Mr. Haresh Mehta & Co.for the petitioner.
Mr. Ravi Kadam, Advocate General with Mr. V.R. Dhond & Mr.
K.R. Belosey, Government Pleader for the respondent No.1.
Mr. C.U. Singh, senior counsel with Mr. V. Mahadik for the
respondent Nos.2 and 3.
CORAM : F.I. REBELLO &
ANOOP V. MOHTA,
JJ.
DATE OF RESERVING THE JUDGMENT : 21ST DECEMBER,
2006
DATE OF PRONOUNCING THE JUDGMENT : 30TH MARCH, 2007
JUDGMENT (Per F.I. Rebello, J.)
Rule. Heard forthwith.
2. The petitioners are aggrieved by communication dated 8th
September, 2006 whereby the petitioners' application for grant of
additional FSI on CTS No.2085 of Santacruz (West) domestic
airport for a five star hotel, has been rejected. The petitioners are
a company incorporated under the Indian Companies Act and have
a hotel in the name and style of Hotel Sahara Star. The petitioners
are also challenging the issuance of the two impugned notices viz.
one under section 354-A of the MMC Act and another under
section 53(1) of the Maharashtra Regional and Town Planning Act,
1966 (Hereinafter referred to as the M.R.T.P. Act). In so far as the
notice under section 354-A of the MMC Act and the notice under
section 53 of the M.R.T.P. Act are concerned, their legality
presently is not being considered as the petitioners by their
application dated 26th May, 2005 have applied for regularisation
under section 44 of the M.R.T.P. Act, 1966.
3. The original prayer as sought for in the petition was to direct
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respondent No.1 to grant additional 100% FSI to the petitioners as
provided by Regulation 33(4) of the Development Control
Regulations for Greater Mumbai, 1991. By order dated August 1,
2006, we had directed the respondent No.1, to dispose of the
petitioners' application within two weeks. On 18th August, 2006,
further time was sought which was given up to 31st August, 2006.
For non-compliance of the orders, by order dated 31st August,
2006, show-cause notice was issued to the Principal Secretary,
Urban Development Department as to why action in contempt
should not be taken whereupon, the impugned order came to be
passed. The petitioners have subsequently amended the petition
to challenge the said order dated 8th September, 2006 on various
grounds.
4. For the purpose of considering, the issues involved in the
petition, we may gainfully refer to Regulation 33(4) of the D.C.
Regulations which reads as under:-
“Building of Starred Category Residential Hotels:-
With the previous approval of Government and subject to
payment of such premium as may be fixed by
Government (out of which 50 percent shall be payable to
the Corporation), and subject to such other terms and
conditions as it may specify, the floor space indices in
Table 14 may be permitted to be exceeded in the case of
buildings of all starred category residential hotels in
independent plots and under one establishment as
approved by the Departmental of Tourism, by a maximum
of 50 per cent over the normal permissible floor space
index in the F and G Wards of Island City and by a
maximum of 100 per cent over the normal permissible
floor space index in wards of the suburbs and extended
suburbs.
No condonation in the required open spaces,
parking and other requirements as in these Regulations
shall be allowed in the case of grant of such additional
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floor space index.
[Notes- The use of TDR will be permissible in case
of starred category residential hotels in suburbs and
extended suburbs only over and above additional FSI
granted under these Regulations subject to following
conditions:-
(i) Additional floor area to the extent of 0.5 FSI by
way of utilization of TDR (reservation TDR,
road TDR or slum TDR) will be permitted over
and above the additional FSI granted in this
Regulations, provided overall FSI does not
exceed 2.5.
(ii) Such additional FSI (in the form of TDR) will be
permitted only if additional FSI is availed under
this Regulations.
(iii) Loading of TDR will be governed by the prescriptions
contained in these Regulations]”
We may also reproduce Regulation 52(8)(viii)(vii) which reads as
under:-
“(8) Uses permitted in independent premises/buildings in the
Residential Zone with Shop Line (R-2 Zone) :- The
following uses may be permitted in independent
premises/buildings/plots 3 in the R-2 Zone:-
(vii) Residential hotels or lodging houses in
independent buildings or parts of buildings or on
upper floors thereof with special written
permission of the Commissioner, who will take
into account the suitability of the size and shape
of the plot, the means of access, water and
sanitary arrangements etc. before granting the
permission. The Commissioner shall not permit
such use unless he is satisfied about the
provision of these arrangements:
Provided that residential hotels of 4 and 5 star
categories may be allowed only in an independent
plot of size not less than 2,500 sq.m. And on roads of
18 m. width or more, a hotel of lower star category
being also allowed on a separate floor of a premises
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or a building with separate access:
Provided further that development of residential
hotels of the star categories shall be permitted by the
Commissioner, only after due approval by Committee
consisting of the Commissioner, the Metropolitan
Commissioner, Mumbai Metropolitan Region
Development Authority, the Commissioner of Police
(Law, Order and Traffic) and the Managing Director,
Maharashtra Tourism Development Corporation Ltd.”
5. On behalf of the petitioners, the principal contention which
has been urged is that, on a proper reading of Development
Control Regulation No.33(4), it becomes very clear that in
exercising its power to grant previous approval, the Government
has to apply its mind to the following factors:-
(a) Whether the subject hotel is a star category residential
hotel;
(b) Whether the subject hotel is situate on the independent
plot;
(c) Whether the subject hotel is under one establishment;
and
(d) Whether the subject hotel is approved by the Department
of Tourism.
It is submitted that if the aforesaid conditions are satisfied,
than the State Government is bound to grant additional FSI though
subject to some relevant conditions as may be specified in the
order. In the instant case, it is submitted that the aforesaid factors
are found in favour of the petitioners. The State Government
therefore has no power to withhold approval. The question of
approval by the State Government arises only after the Planning
Authority has applied its mind and comes to the conclusion that the
building plans are in accordance with the DC Regulation and the
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applicant is entitled to get F.S.I. of two. If the petitioner/applicant
has complied with the requirements of the four factors set out
earlier, the State Government has absolutely no power whatsoever
to withhold its approval on any other ground.
It is next submitted that the order has been passed with
malafide intention and individious discrimination of the petitioners.
On the reference made by the Government vide their letter dated
19.6.2004, the Deputy Director, Town Planning recorded by letter
6th August, 2004 recorded that there was no objection in
sanctioning the additional FSI for hotel upto the limit of FSI of 2
under Regulation 33(4) of the Development Control Regulation.
Also the Municipal Corporation in response to the Government
letter dated 19th June, 2004 by its letter dated 29th January, 2005
addressed to the Under Secretary, Government of Maharashtra
interalia stated that the said hotel was entitled for grant of additional
FSI. This was informed to the Architect of the petitioners by the
Executive Engineer (Building Proposal) by letter dated 8th February,
2005. Inspite of the favourable response, the State Government
did not act on the matter, causing tremendous loss to the
petitioners to the tune of crores of rupees. After the orders of this
court dated 1st August, and 18th August, 2006, the State
Government intimated to the Municipal Commissioner, that the
grant of additional FSI would require consideration of traffic
problem and problem that may be created by the additional rooms
and therefore, the request of additional FSI could not be considered
at that stage unless the queries raised are properly justified.
Subsequent to the order of this court on 31st August, 2006, the
requirement of additional rooms was given a go bye and the refusal
was based solely on the ground of alleged report of MMRDA dated
7th September, 2006 based on data collected by MMRDA in 2003.
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Malafides, it is submitted, are writ large on the face of the record.
6. The rejection on the ground of traffic congestion, is based on
the report of MMRDA which authority it is submitted has no
concern, either under the MMRDA Act or under the MRTP Act and
is, thus, totally irrelevant and extraneous under the Development
Control Regulation 33(4). It is submitted that the hotel guests,
normally come from the Airport, that is those who arrive at the
domestic airport. The consideration that traffic coming from
south/north Bombay and going to the airport would create traffic
problem, was not relevant. Even otherwise, such a consideration
was not taken while granting additional FSI to other hotels
particularly to hotel Orchid which is 100 meters away from the
subject hotel and situate on a very narrow road and is adjoining the
airport.
7. It is lastly submitted that at the time of granting approval to
various other five star hotels in the vicinity, the criteria of traffic
volume or the traffic volume study carried out by the MMRDA was
not considered nor were such hotel subjected to the process of the
report from MMRDA. The conduct of the State in so doing
discloses discrimination based on the mandate of Article 14. It is
also contended that at the Santacruz Airport junction where the
hotel is situated, a tender has been approved at the cost of Rs.33
crores for construction of a flyover. The timing for construction was
18 months. If the petitioners' proposal is sanctioned, the petitioners
would require about 18 months to complete their project and as
such, the question of any congestion of traffic at the junction would
no longer subsist.
8. On the other hand, on behalf of the respondent No.1, it is
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submitted that the attempt by the petitioners is to seek
regularisation of a totally illegal construction. The petitioners, it is
contended, carried out a wholly illegal and unauthorised
construction and by this petition, are seeking ex post facto
regularisation of the unauthorised structure. It is next submitted
that the contentions on the scope of power of the State
Government under the Development Control Regulation 33(4) is
wholly erroneous and misconceived. The argument it is submitted
is contrary to the plain language of Development Control
Regulation 33 and against the scheme and object of the MRTP Act
and the Development Control Regulations. Development Control
Regulation 33(4) uses the expression “may”. It is in marked
distinction with the word “shall” in Development Control Regulation
33(5), 33(6), 33(7), 33(8), 33(9), 33(13), 33(17) etc. It is well
settled that in appropriate cases the word “shall” is to be
understood as “may”. To treat “may” in DCR 33(4) as imposing a
compulsion, is to give the words of DCR 33(4) a meaning contrary
to the language and intent of DCR 33(4). It is next submitted that
the impugned order is legal and correct and the respondents have
denied the allegations of malafide, extraneous consideration as
also individous discretion and other contentions. In so far as the
allegation of discrimination, it is submitted that no other hotel is
situated/located next to the Airport and/or on the main narrow
thoroughfare leading to the airport. The closest other hotel is
Orchid is much further away and the permission granted for the
year 1992 and has two exits whereas the petitioners' plot is a
stone's throw from both terminals and almost touches the circle
where several access roads meet. The petitioners' application,
therefore, involved unique and/or peculiar and/or individual
consideration. Consideration of traffic congestion on the main
access road to both terminals, safety and security are of legitimate
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consideration. In so far as the flyover is concerned, it is submitted
that no flyover to the airport is proposed and the decision/order is
based on the problems to persons going to and coming from the
airport and therefore, North-South flyover will not, in any way
reduce vehicular density to and from the airport. The various
approvals and permissions granted by various departments, it is
submitted, do not deal with the aspect of traffic congestion. The
order has been passed after considering the expert views of both,
the Chief (transport and Communication) of the MMRDA which is
an expert planning body and the Joint Police Commissioner
(Traffic) and the Police Commissioner, Mumbai. For all these
aforesaid reasons, it is submitted that there is no merit in the
petition which has to be rejected.
9. Considering the above contentions, the main issues which
are required to be considered for deciding the controversy are; (i)
whether regulation 33(4) has to be construed in a manner sought to
be advanced on behalf of the petitioners by restricting it to the four
factors or predicates or whether it is open to the Government in
exercising its discretion, to consider other factors relevant to the
grant or non-grant of approval; (ii) whether the communication
dated 8.9.2006 is based on relevant material and/or the
Government has ignored relevant material before forming its
opinion, and to that extent, the decision discloses non-application
of mind on the part of the respondent No.1 and or the decision
suffers from illegality or procedural impropriety; (iii) Have the
petitioners been able to establish that the action of the respondents
is malafide and arbitrary and consequently, requires to be set aside
being null and void.
10. For the purpose of deciding the controversy, we may address
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ourselves to some facts which may be necessary for deciding the
issue. It is the case of the petitioners that respondent No.2-
Municipal Corporation of Greater Mumbai (hereinafter referred to
as the “Corporation”) had issued intimation of disposal (IOD) dated
15th January, 2004 under section 346 of the MMC Act in the matter
of additions and alterations to the existing hotel building. The first
commencement certificate was issued by the respondent No.2 on
29th March, 2004 under the provisions of MRTP Act. On 9th August,
2004, the respondent No.2 granted no objection to carry out the
work as per amended plan submitted by the Architect vide his letter
dated 2nd August, 2004 for additions and alterations for ground plus
service floor plus first to 5th upper floors with the dome. The
respondent No.3 also granted commencement certificate in favour
of the respondent No.1 for the amended plans. Pursuant to the
approval granted by respondent No.2 to carry out the additions and
alterations, by way of the staircase premium and lay-out fees, the
petitioners have invested an amount of Rs.5,32,25,199/-.
The petitioners' architect by letter dated 4th November, 2003
and reminder dated 11th June, 2004, sought permission for grant of
additional FSI under Regulation 33(4) from Respondent No.1.
Pursuant to that letter, the Additional Secretary, Urban
Development Ministry of the Government of Maharashtra vide letter
dated 19.6.2004 addressed to the Chief Engineer (Development
Planning) of respondent No.2 and the Deputy Director of City
Planning, Greater Mumbai, were requested to submit a detailed
report in the matter of grant of additional FSI by petitioner No.1.
The Deputy Director of Town Planning vide letter dated 6th August,
2004 intimated to respondent No.1, that the said plot is covered
under Commercial Zone (C II) of the Town Planning Scheme and
is not reserved for any purpose and petitioner No.1 was eligible for
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the benefit of FSI 2 as they have complied with all requirements of
Regulation 33(4) and there was no objection to grant additional FSI
as amended by the petitioner No.1. The Chief Engineer (DP) of the
respondent No.2 vide his letter of 29th January, 2005 intimated to
the Secretary, Urban Development Ministry that the plans
submitted by the petitioners' architect are scrutinised and found to
be approvable under the provisions of Regulation 33(4) of the
Development Control Regulations after granting relaxation in the
provisions of Development Control Regulations. It was also
intimated that the revised plans for additional construction has been
submitted and that the hotel building abuts the road on all four
sides and there is no deficiency in the open space and adequate
car parking has been proposed as per DC Regulation 36 and as
such requested the respondent No.1 to grant additional FSI, over
and above the permissible FSI of one. By communication dated 8th
February, 2005, the petitioners were informed by the Executive
Engineer (Development Plan) of the respondent No.2, that
concession for granting additional FSI has been approved by
respondent No.3 and the matter has been referred to the
Government to grant additional FSI. Pursuant to the issuance of
the notices under section 354A of the MMC Act and under section
53(1) of the MRTP Act, dated 20th April, 2005 and 29th April, 2005
respectively, the petitioners have stopped the work of development.
11. From the pleadings and material on record, it is clear that the
Department of Tourism, Government of India by letter dated
26.9.2003 had conveyed the approval for putting up 353 rooms in
their five-star hotel. Thus, the petitioners have met with the two
requisite requirement of Regulation 33(4). The Airport Authority of
India who has leased the land, have granted their approval by their
communication of 9.11.2004. The drawings had been examined
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keeping in view the Airport Authority of India Manual of
Construction Guidelines as approved by AAI Board. This is an
independent plot and there is no dispute that it is under one
management. The other two factors therefore are also satisfied.
The Joint Commissioner of Police (Traffic) by his communication of
16.3.2004 addressed to the Commissioner of Police from the point
of traffic control gave no objection subject to what is set out therein.
We may only refer to part of the letter which reads as under:
“With reference to above subject applicant has
proposed to convert the existing hotel building having
ground floor (part basement) + 5 upper floors into 3
basement + ground floor + 5 upper floor structure.
The applicant also proposed to provide 627 nos. of
parking spaces (209 on each basement) against the
required 422 nos. of parking spaces as per D.C.R......”
Pursuant to this communication, the Commissioner of Police
addressed a letter to the Municipal Commissioner that there was no
objection from the police point of view to the abovementioned
proposed additions and alterations to the existing building of
Sahara Hospitality Limited on fulfillment of the conditions set out
therein. In response to the letter from Respondent No.1, pursuant to
the application for approval sought by the petitioners, the Deputy
Director, Town Planning of Respondent No.2 by the letter of 6th
August, 2004 and the Chief Engineer (DP) by letter of 29th January,
2005 informed the Respondent No.1 that the petitioner was eligible
for the benefit and that the plans could be approved.
13. After this court had issued directions to the respondent No.1
to decide the matter, the respondent No.1 wrote to respondent No.3
setting out that the land under reference is situated at the junction
of Express Highway and a narrow road leading to Airport and is
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situated very close to Airport itself. The grant of additional FSI to
Hotel Sahara Star would add additional number of vehicles in the
vicinity of airport, which may create traffic problems. A proper study
of traffic congestion and its movement therefore needs to be
studied. Besides, there are many five star category hotels as well
as other hotels in the vicinity of airport. The need for additional
rooms in the vicinity needs to be ascertained from the competent
authority and in view of that, the request could not be considered
unless the above mentioned details are properly justified. The
earlier information sought and which was given was totally ignored.
Secondly, we cannot appreciate how the State Government could
go into the need for additional rooms as the relevant body of the
Government of India had already granted approval and which was
made known to the respondent No.1. Subsequent to the order of
this court dated 31st August, 2006, the respondent No.1 appears to
have addressed a letter dated 4th September, 2006 to MMRDA as
also the Commissioner of Police. MMRDA sent a communication
on 7th September, 2006. It was set out therein that under MUIP, a
flyover has been already proposed at the said junction taking into
consideration the large delays at the location on account of
increase on the Western Express Highway. The current peak hour
traffic volume at the junction is 18,298 PCU's out of which 2525
PCU's (nearly 15%) are in the direction from Western Express
Highway coming from south turning right to airport using the road
next to hotel Sahara Star. The road to airport from Western Express
Highway is of 19 meters width with only 2 lane dual carriageway
with a central median of 1 mtr. The road on the rear side of the
hotel Sahara Star is only 11 mtr. Operating as one-way road. The
ultimate carrying capacity of approach to airport for a 2 lane
carriageway is 2400 PCUs/hour whereas traffic entering the airport
is around 2200 PCUs/hour in peak hour and is operating at leval of
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service `E' (Volume/Capacity ratio of 0.91 during peak hours) which
is below the desirable leval of service of `C'. Further the junction is
having no service roads along the highway in this section. Some
proposals were considered but found not feasible and as such, it
will not be desirable to consider the request of the petitioners.
The Joint Commissioner of Police addressed a letter on 8th
September, 2006 to the Under Secretary to the Government of
Maharashtra, Urban Development Department in which it was set
out that the ongoing project of hotel Sahara Star has been given
NOC by Traffic Control Branch for reasons of (i) parking provision
had been made for 627 nos. as against the requirement of 422 nos.
as per D.C. Rules; (ii) as per the approval issued by the Deputy
Chief Engineer, Traffic & Co-ordination, MCGM, the parking
arrangements and internal drive ways are efficient in terms of traffic
operations and maneuvering and as a consequence vehicles will
not be required to halt at entry points; (iii) existing roads adjacent to
hotel Sahara Star are capable of bearing segregated flow of traffic
generated by hotel Sahara Star. Besides the said project includes
widening of Nehru Road by a lane, as per MCGM plans. It was
further mentioned that as far as expansion of Santacruz Domestic
Airport is concerned, they were of the view that widening of access
roads would be inevitable.. The attention was also invited to the
proposal of a flyover (north-south). The Joint Commissioner of
Police (L & O) by his letter dated 8th September, 2006, addressed to
the Principal Secretary, Urban Development Department, in so far
as security concern, set out that the additional FSI should be
granted in such a way that the expansion of hotel Sahara Star will
not further congest the already narrow access road. After
expansion, ample parking space should be provided. The vertical
expansion if granted beyond a certain limit, may cause a serious
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security concern with respect to the safety of domestic airport.
14. By the impugned order, the petitioners have been informed
that the approval cannot be granted considering the existing site
constraints such as narrow approach roads to the airport and as the
domestic airport has been expanded and there is limited scope for
the widening of the roads leading to the airport and as such it would
not be desirable to allow the petitioner, the use of additional F.S.I..
15. We may now consider the first contention. The learned
counsel for the petitioners has cited the dictionary meaning of the
word “approval” as also judgments, which we shall first consider. In
Supreme Court, words and phrases by Justice R.P. Sethi,
“approval” has been set out as under:
“Black's Law Dictionary, 6th Edition, defines
“approval” to mean an act of confirming, ratifying,
assenting, sanctioning or consenting to some act or
thing done by another. In the context of an
administration act, the, word, “approval” in our opinion
does not mean anything more than confirming,
ratifying, assenting, sanctioning or consenting.
Vijayadevi Navalkishore Bhartia and another v. Land
Acquisition Officer and another (2003) 5 SCC 83.”
The Supreme Court was considering expression “approval”
under the U.P. Industrial Disputes Act, 1947 in Lord Krishna
Textile Mills and its workmen, 1961 LLJ 211. Dealing with the
expression “approval”, the Court noted, “Approval” according to its
dictionary meaning suggests, that what has to be approved has
already taken place; it is in the nature of ratification of what has
already happened or taken place. The word “approval” in contrast
with the words “previous permission” shows that the action is taken
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first and approval obtained afterward. In Ashok Kumar Sahu v.
Union of India and others, (2006)6 SCC 704, the expression
“approval” again came up for consideration in the context of
approval to a voluntary retirement of a member of the Indian Police
service. In para 18, the court observed as under:-
“18. The expression “approval” presupposes an
existing order. “Acceptance” means communicated
acceptance. A distinction exists between the
expressions “approval” and “acceptance”. Whereas in
the latter, an application of mind on the part of the
competent authority is sine qua non, approval of an
order only envisages statutory entitlement. Approval of
an order is required as directed by the statute. It can
be given a retrospective effect. Even valid contract
comes into being only after the offer is accepted and
communicated. Where services of an employee are
dispensed with, the order takes effect from the date
when it is communicated and not from the date of
passing of the order. (See State of Punjab v. Amar
Singh Harika.)”
Reference was also made to the judgment in Vijayadevi
Navalkishore Bhartia and another v. Land Acquisition Officer and
another, (2003) 5 SCC 83. Themeaning of the word “approval” has
already been set out while considering Supreme Court `On Words
and Phrases'. On the consideration of the language of Regulation
34(4), it would not be possible to accept even considering how the
expression “approval” has been understood that the respondent-
State has only to apply its mind only to the four factors alleged as
relevant by the petitioners. In our opinion, that would not be a true
construction considering the language used in the regulation. Every
legislation has to be read in the context of the language used. No
doubt, in the instant case, we have to consider the fact that we are
dealing with a subordinate legislation. The approval here is to for
the use of additional F.S.I. on the plot by the plot holder. For the
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State to consider the approval, the petitioner must satisfy, that it is a
star hotel; has an independent plot; under one establishment and
approved by the Department of Tourism. Once these factors are
satisfied and which here are satisfied, the Government has still to
consider grant of approval, subject to such terms and conditions.
The regulation permits use of additional FSI from the very same plot
and apart from that, TDR to the additional extent of 0.5 F.S.I. is
permissible only over and above that if the additional FSI from the
same plot is used. This is an indication that normally approval
should be granted. For use of such FSI, premium is to be paid
which will be shared by the Government and the Corporation. The
bar of use of additional TDR has to be considered in that context, as
TDR is to be purchased from the market from private parties to be
loaded on an existing plot. The language of the regulation does not
support the contention of the petitioners that only when the Planning
Authority is satisfied that the building plans confirm to the
regulation, then only the issue of approval by the Government
arises for consideration. The approval is not for the building plans
but for use of additional FSI, which can be considered if the four
factors are satisfied.
At this stage, we may take note of D.C. Regulations 33 to 34
and Appendix VII. By virtue of these regulations, FSI over and
above one, to the extent of FSI of two and above can be used on
any plot as set out therein subject to what is set out therein. If a
person wants to construct a hospital or educational institution, they
would be entitled to use of additional FSI of one without
Government approval and with Government approval for medical
institution on independent plots could be further exceeded by 200%
over and above additional FSI. The petitioners' plot is situated in
the suburbs where Regulation 34, Appendix VII is applicable. That
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permits use of additional FSI on plots in the suburbs without any
Government permission or consideration of traffic problems. If,
therefore, the petitioners wanted to construct any building other
than the hotel, they would have been entitled to use of additional
FSI of one, irrespective of traffic flow or volume. We may note that
while preparing the development plan and considering section 28 of
the MRTP Act, what must be taken into consideration amongst
others under section 22(d), is the transport and communication
such as roads, highways, path ways, railways, water ways, canals
and airports including the extension and development; in other
words, D.P. Plans and D.C. Regulations are framed considering
section 22. The authority conferred with the power of making
subordinate legislation, has to consider the mandate of section 22
of the MRTP Act. The D.C. Regulations are subordinate legislation
made after the delegate is satisfied that the requirements of Section
22(d) are met. The regulations require to be approved by the
Government and have been approved. The requirement of
infrastructure of roads, transport and communication have already
been taken into consideration when the D.C. Regulations were
approved by the Government.
Apart from that, the Planning Authority for the relevant area is
respondent No.2. In the matter of development, therefore, it is
respondent No.2 whose expertise has to be considered while
granting or sanctioning the development, considering the various
factors including the provisions of section 22 of the M.R.T.P. Act,
which it considered while preparing the D.P. Plan and the
regulations. In other words, the body principally concerned with the
planned development in the area is the Planning Authority for that
area. The opinion, therefore, of the Planning Authority in the
context of traffic, road congestion, has to be considered whilst
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considering the grant of approval. The Traffic Police in their
communication to Respondent No.2 has found no problem if the
sanction for development is granted. This was also informed to
Respondent No.1 by Joint Commissioner of Police by letter dated
8th September, 2006. That authority had already given their no
objection considering relevant material and the regulations after its
opinion was sought.
We may now examine regulation 52(8)(viii)(vii). This
regulation, in our opinion, has nothing to do with the approval of
additional FSI but only requires that in the matter of development
permission for a starred Hotel by a committee, of which the
Metropolitan Commissioner, Mumbai Metropolitan Region
Development Authority is one of the members. Under this
Regulation, all that happens is that Hotels are permitted in a
residential zone with shopline. In the instant case, assuming that it
was open to respondent No.1 to consult MMRDA on the issue of
traffic pattern, it could not be bypassing the Planning Authority or its
opinion when for the area in question, there is a Planning Authority.
So construed, in our opinion, the approval or non-approval cannot
be contrary to the D.P. Plan and D.C. Regulations. The previous
approval is for the purpose apart from satisfying the mandatory
predicates of the regulation itself to some factors which may not
have been considered at the time of framing the the development
plan including regulations made under section 22 which are relevant
from the planning point of view. Matters which have to be
considered whilst granting approval cannot be those which have
already been considered, considering the provisions of section 22 of
the MRTP Act. If we construe the regulation to mean that the
respondent No.1 after notifying that the D.P. Plan and approving the
D.C. Regulation, reserved to itself the right to refuse permission on
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account of traffic congestion then that would be contrary to
regulation 33(4), as that aspect was taken into consideration when
this regulation was made. We are clearly, therefore, of the opinion
that although while granting approval for use of additional FSI, the
four factors argued on behalf of the petitioners have to be
considered, it is also open to respondent No.1 to consider other
relevant material which, however, will not be what has already been
considered by the D.P. Plan and the Regulations. Additionally once
on the very same plot if a building can come up, in the ordinary
course by user of FSI of two or for that matter also a hospital or
college with the same FSI of two without approval of the
Government factors like traffic congestion are really not relevant for
granting approval under Regulation 33(4).
16. We may now deal with the second aspect in the context of
non-application of mind and or ignoring relevant material. We had
called for the files of the respondent No.1 to examine as to what
was the material considered. We have noted earlier, the application
by the petitioners was of November 4, 2003 with the reminder of
11th June, 2004. Pursuant to this letter, the Government had sought
information from the Chief Engineer (Development Planning) and
the Deputy Director (City Planning). Both these authorities had
granted their no objection for the sanction. This material has not at
all been considered. It was not open to the respondent No.1 to
ignore the material which had become available at its insistence.
Even in so far as the additional material is concerned, the only
information received is letter of MMRDA of 7th September, 2006
before the decision making process of 8th September, 2006. The
material that has come on record shows that peak hour traffic
volume is 18298 PCU's out of which 2525 PCU's (nearly 15%) are
coming from the Express Highway to the Airport. A flyover is
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already under construction which will result in the major traffic being
diverted over the flyover, thus, causing less congestion at the
junction. In so far as access to the airport is concerned, we have the
letter of 8.9.2006 of the Joint Commissioner of Police (Traffic),
Mumbai. From that, it is clear that in so far as traffic flow is
concerned, there was absolutely no objection. Attention was invited
to the NOC given by the Traffic Control Branch by letter of
16.3.2005. The Joint Commissioner of Police (Traffic) by that letter
considering the additional construction gave his no objection based
upon which the Commissioner of Police informed the Municipal
Commissioner of their no objection. The letter of Joint
Commissioner of Police (L&O) dated 8th September, in our opinion,
is not relevant, considering that in so far as height is concerned, in
terms of the rules in force there are hight restrictions for the
buildings near the Airport and the Airport Authority itself has
granted approval. It is based on all these factors that respondent
No.2 had communicated their decision to respondent No.1. In our
opinion, respondent No.1 while considering the issue has ignored
the relevant material whilst forming its opinion. An administrative
authority deciding the question has to consider all the relevant
material. The action, therefore, in our opinion, suffers from both,
illegality as well as procedural impropriety. The impugned order,
therefore, is liable to be set aside on this count also.
17. In so far as granting permission to other hotels, there is no
sufficient material placed by the petitioners that there are other
hotels similarly situated near the airport except “Orchid” for which
the approval was granted in the year 1992. In our opinion, there is
no sufficient material placed on record to consider the said
contention and in the absence of such material we are of the
opinion that the petitioners have failed to demonstrate arbitrariness
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on the part of the respondent No.1.That contention must, therefore,
be rejected.
18. Having said so, the question is, what reliefs are the
petitioners entitled to. Granting of approval is within the discretion
of respondent No.1. This exercise of administrative discretion
normally, should not be exercised by a court exercising its
extraordinary jurisdiction under Article 226 of the Contention of
India, even if the court comes to the conclusion that there is
unfairness in the exercise of the discretion. Law on judicial review of
administrative action may now be considered. In Council of Civil
Service Unions v. Minister for the Civil Service Lord Diplock set
out the three relevant grounds which are (i) illegality; (ii) irrationality
and (iii) procedural impropriety. Explaining the three grounds, the
learned Judge observed as under:-
“By “illegality” he means that the decisionmaker
must understand correctly the law that regulates
his decision-making power and must give effect to it,
and whether he has or has not, is a justiciable question;
by “irrationality” he means “Wednesbury
unreasonableness”. It applies to a decision which is so
outrageous in its defiance of logic or of accepted moral
standards that no sensible person who had applied his
mind to the question to be decided, could have arrived
at it; and by “procedural impropriety” he means not only
failure to observe the basic rules of natural justice or
failure to act with procedural fairness, but also failure to
observe procedural rules that are expressly laid down
in the legislative instrument by which the tribunal's
jurisdiction is conferred, even where such failure does
not involve any denial of natural justice.”
In Rameshwar Prasad (VI) v. Union of India, (2006)2 SCC
166, the Supreme Court was pleased to observe as under:-
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“240. A person entrusted with discretion must, so
to speak, direct himself properly in law. He must call
his attention to matters which he is bound to consider.
He must exclude from his consideration matters which
are irrelevant to what he has to consider. If he does
not obey those rules he may truly be said to be acting
unreasonably. Similarly, there may be something so
absurd that no sensible person could ever dream that
it lay within the powers of the authority.
241. It is an unwritten rule of law, constitutional
and administrative, that whenever a decision-making
function is entrusted to the subjective satisfaction of a
statutory functionary, there is an implicit obligation to
apply his mind to pertinent and proximate matters only,
eschewing the irrelevant and the remote.”
19. From the law as now examined, it would be clear that the
order of respondent No.1 suffers from illegality and procedural
impropriety. However, judicial review is not concerned with
reviewing the merits of the decision in support of which the
application for judicial review is made, but the decision-making
process itself. The court, therefore, should not under the guise of
preventing the abuse of power, be itself guilty of usurping power.
See Tata Cellular v. Union of India (1994)7 SCC 651. In our
opinion, on the facts of the case, the matter will have to be remitted
back to respondent No.1 for re-consideration in terms of what we
have discussed in the judgment.
In the light of that, rule is made absolute in terms of prayer
clause (a). The matter is remitted back to the respondent No.1 for
re-consideration according to law. Considering that the application
is pending since March, 2004, in our opinion, the ends of justice
would be met if the respondent No.1 is called upon to decide the
same at any rate not later than 60 days from today. Rule to the
extent made partly absolute. There shall be no order as to costs.
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(F.I. REBELLO, J.)
(ANOOP V. MOHTA
J.)
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