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Bombay High CourtIndian Cases

Bombay Environmental Action Group And … vs State Of Maharashtra And Ors. on 12 October 2001

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Bombay High Court
Bombay Environmental Action Group And … vs State Of Maharashtra And Ors. on 12 October, 2001
Equivalent citations: (2002)104BOMLR902
Author: S. Radhakrishnan
Bench: B.P. Singh, S. Radhakrishnan
JUDGMENT

S. Radhakrishnan, J.

1. The main Writ Petition No. 1344 of 2000 filed by Bombay Environmental Action Group is a public interest litigation impugning various permissions and sanctions granted by Respondents 1 to 3 for construction of buildings to Respondents 4 to 13 in Koregaon Park area, Pune. In this petition the Petitioners are challenging the building permissions and sanctions granted with regard to 7 plots viz. Plot Nos. 2, 19, 27, 35, 62, 92, 93 and 122/1.

2. Basically the Petitioners are challenging the building permissions and sanctions as violative of the following:

(a) the “Building Rules” specially framed for construction, for Koregaon Park area by the Collector of Pune known as “Collector’s Rules”;
(b) Appendix “S” to the Development Control Rules of Development Plan Pune (Revised) Final and
(c) The terms of the Lease Deed by which the Collector of Pune on behalf of the State of Bombay had granted the said plots on a long term lease to each of the plot owners by a Lease Deed.
3. The Petitioners contend that the aforesaid Collector’s Rules, Appendix “S” and the provisions in the Lease Deed provide for a regulated development of Koregaon Park area, and the said area is treated as a special area from the point of view of its development. Koregaon Park is spread over an area of approximately 194 acres and is divided into 122 plots. In fact in the year 1920 this area was earmarked as a “Model Colony” and has been preserved as a “park area” and as a prominent residential area in Pune. Here there are some of the most old and residential bungalows are situated and there are four wide parallel lanes between the North Main and South Main Roads, the lanes are thickly wooded with Citrea and other trees like Gulmohar, Neem and Mango giving the parts of the area the appearance of a “park”, the lanes are relatively far from the heavy traffic and noise which one generally associates with urban areas situate in the heart of a growing city like Pune, the lanes are designed as and given the Impression of being leafy, thickly planted avenues, the area has the general character of a Park with residential bungalows.

4. As far as Appendix “S” was concerned there was a strong objection by the Respondents that the same was not in fact, factually included in the Development Control Rules which was sanctioned on 5.1.1987. In that behalf the Petitioners had pointed out that in fact Appendix “S” was part of Development Control Rules and was factually a part of the same. In that behalf the Petitioners had pointed out that as mentioned in Meherbai Karl Khandalawala’s case, objections were raised by many members for non-inclusion of the Collector’s Rules submitted by State Government and the Petitioners had also objected to this and had requested that the Collector’s Rules should be incorporated in the Sanctioned Plan. They had also pointed out that the correspondence between the State Government and B.E.A.G. also shows that the State Government was actively considering to include the Collector’s Rules in the D.C. Rules. The Petitioners had also relied on the affidavit of Assistant Director of Town Planning wherein in Paras 5 and 8 there is a statement that Appendix “S” was part of D.C. Rules which was sanctioned on 5.1.1987. The Petitioners had pointed out that in Development Control Rules 2.20a in the copy of the sanctioned rules reference is made to Appendix “T” to the Rules, if that be so Appendix “S” was already incorporated otherwise there would not have been a reference to Appendix “T”. The Index copy of the sanctioned rules also mentions Appendix “S”. Over and above Appendix “S” has been authenticated by Mr. Pantbalkundri on 18.9.1986 that was before the sanction of the plan. The learned Counsel for the Petitioners also pointed out a letter of the Ministry of Environment to the Petitioners dtd. 18.3.1987 being Exhibit “D” to the affidavit of the Petitioners dated 7.8.2000 wherein the status report attached thereto states that the Government of Maharashtra had informed it that the Collector’s Rules had been duly incorporated while sanctioning the revised development plan on 5.1.1987.

5. The Petitioners contend that the correction made to Rule N. 2.2. communicated by the letter of Mr. Pantbalkundri dtd. 23.1.1987 (even if regarded as correcting plan) it is nothing more than a rectification of a minor error and not a modification or substantial modification in that sense. In that behalf even assuming the same were to be an irregularity, as per Section 150(1)(e) of M.R.T.P. Act, 1966 that no act or proceeding taken under the Act shall be questioned on the ground merely on any omission, defect or irregularity. Under these circumstances the Petitioners contend that once final Development Plan has been duly sanctioned and it has come into force there is no question of any modification and the said Appendix “S” forms very much a part of the said Development Control Rules.

6. In the year 1921 the Collector of Pune acting on behalf of the then State of Bombay had formulated a plan for Koregaon Park, Pune. In the said plan 122 plots were demarcated with a minimum area of 1 acre each. All these 122 plots were leased on long term basis. In the year 1921 itself the “Collector’s Rules” were also brought into force under Section 37 of the Bombay Land Revenue Code, 1879 for governing activities in the Koregaon Park area. Thereafter on 15th February, 1950, Koregaon Park was included within the limits of the Pune Municipal Corporation. The Collector’s Rules were also incorporated in the final revised development plan. According to the Petitioners the Collector’s Rules has been incorporated as “Appendix “S” to the Development Control Rules w.e.f. 5.2.1987.

7. The Petitioners have also contended that this Collector’s Rules independently also have a statutory force as has been held by a judgment of a Division Bench of our Court in Meherbai Karl Khandalawala and Ors. v. The Competent Authority under Urban Land Ceiling and Regulation Act, 1976 and Ors. 1988 Mah.L.J. 543. In the said judgment it is held as under:

It is admitted by Mr. Sawant on behalf of Respondent No. 2 that apart from the Collector’s Rules, in respect of Koregaon Park there were no other special building regulations. Mr. Sawant also submitted that the reference to special building regulations in Regulation 227 is to the Collector’s Rules. Under these circumstances it will have to be held that the Collector’s Rules at the relevant time, had a statutory force.
(emphasis supplied) Here italicized.
Bearing the above mentioned principles in mind, it will have to be considered whether the Collector’s Rules and Building Rules and Bye-laws of Respondent No. 2 cannot both be given effect to. The Building Rules and Bye-laws of Respondent No. 2 are for the whole of Pune. Koregaon Park area is a specially maintained residential area free of heavy traffic with a large number of old and beautiful buildings. All lanes are wooded with Citrea and other trees like Gulmohar, Neem, Mango. The area has thickly planted avenue. The entire area has the character of a park. Under the circumstances it is but natural that there would be special rules regulating building activities in the area. We do not see any conflict. The building bye-laws and rules of Respondent No. 2 apply to rest of Pune and for Koregaon Park and other special residential areas special regulations prevail.
(emphasis supplied) Here italicized.
In the view that we have taken that the Collector’s Rules had the statutory force, the existing building rules only permitted as F.S.I. of 0.66. In view of the objections taken the possibility existed of F.S.I. being reduced. In fact in final plan as sanctioned, the Collector’s Rules have been incorporated.
(emphasis supplied) Here italicised.
In the view that we have taken i.e. that the Collector’s Rules were always applicable and had the force of law the permission granted to the Respondents to construct as per plans sanctioned would have to be revoked.
(emphasis supplied) Here italicized.
8. Broadly the Petitioners’ case as regards violations are that the concerned Respondents have been granted illegally building permissions for construction of more than one main bungalow on each one acre plot under the guise of permitting outhouses on a “single plot”. That is to say the permission has been granted for more than one independent and separate main bungalow wherein third party rights have also been created in favour of several persons independently for part of each plot. Secondly the contention is such permission for main bungalows under the guise of outhouses would be in flagrant breach of Rule 3 of Collector’s Rules as well as Rule 3 of Appendix “S”. The Petitioners contended that the construction might be within the F.A.R. but what is relevant is that there can be only one main bungalow and outhouses as permissible. On the contrary the permissions have been given to four or five buildings, on each plot, each building has been treated as an independent “Main Bungalow”. The Petitioners have also pointed out that the Outhouses do not have any connection with the Main Bungalow in the sense they are not required for bona fide use or enjoyment by occupants or domestic servants of the “Main Bungalow”.

9. The Petitioners also contend that Rule 16 of the Collector’s Rules clearly provides that the outhouses are such as garage, servants’ quarters, stable, store room, privy etc. appurtenant to but detached from the Main Building. That is to say the outhouses must be appurtenant to and must have a relation to the Main Bungalow. The Petitioners also challenge that there is an illegal sub-division of individual plots by permitting more than one Bungalow on each plot. These one acre plots divided in smaller plots whereby the essential feature of Collector’s Rules have been breached.

10. The Petitioners also contended that the Main Bungalows can only have one ground floor plus one storey and outhouses can only be of ground floor whereas the main bungalows have been permitted with mezzanine floors with first floors and on stilts as well as the outhouses structures have been sanctioned with mazzanine floors and with heights exceeding ground floor height viz. 25, which is the height of a normal two storied building. As far as some of the plots are concerned the Petitioners have alleged that the construction has been commenced despite the fact that the Collector has not issued “No Objection Certificate” (N.O.C.). The Petitioners also pointed out that no alteration or addition to the buildings on the plot can be carried out without N.O.C. from Collector.

11. The Petitioners have pointed out that under Rule 36 of the Collector’s Rules the Bungalows can be used only for residential purposes and no permissions can be legally granted for nonresidential user. On the contrary with regard to some of the plots users like gymnasium, health club, hotel etc. have been granted.

12. The Petitioners relied on Collector’s Rules to substantiate their contention that the construction of more than one main bungalow on each plot under the guise of permitting out house is impermissible as would be apparent from the Collector’s Rules themselves. Collector’s Rule No. 3 and Rule 16 read as under:

Rule 3 : Only one main building together with such outhouses as are reasonably required for the bona fide use and enjoyment by its occupants and their domestic servants shall be permitted to be erected in any building plot:
Provided that, this restriction shall not prevent the erection of two or more building on the same plot, if the plot admeasures atleast twice or thrice as the case may be (according to the number of buildings) the minimum size required:
Provided also that the same open space shall be required around each main building as if each of these were in a separate building plot.
Rule 16 : All subsidiary buildings such as an outhouse providing auxiliary accommodation such as a garage, servant’s quarter stable, stores rooms, privy, etc. appurtenant to the main building but detached therefrom shall be ground floor structures only and shall be constructed at the rear of the plot at a distance of not less than 10 feet from one another or from the main building or from the boundary of the plot.
13. The Petitioners have contended that the permissions and sanctions have been granted in flagrant violation of both the above Rules. That is to say the permitted construction of more than one main bungalow under the guise of permitting outhouses.

14. The next objection of the Petitioners is with regard to illegal subdivision of plots wherein it was pointed out that the Pune Municipal Corporation and the Collector have given N.O.C. approving construction of more than one structure of a main bungalow and outhouse which are actually separate, independent self-contained main bungalows which will ultimately amount to sub-division of the plot in question. The Petitioners have contended that this is patently illegal and contrary to the provisions of Collector’s Rules, Appendix “S” to the Development Control Rules and also terms of the Lease Deed. In that behalf the Petitioners have also pointed out that the 1921 lay-out Scheme of Koregaon Park prepared by the Collector wherein each and every one of the 122 plots comprised in the Scheme was of a minimum area of 1 acre. In other words, not a single plot measured less than an acre, although several admeasured more than one acre. The Petitioners also pointed out that, Rule 2.1 of Collector’s Rules and Appendix “S” states. “The minimum area of building plot shall be as mentioned in the lay out. No building plot as shown in the lay out shall be sub-divided”. In fact, in this behalf it appears that the State Government had issued a clarification on 25.6.1993 which reads as under:

Minimum size of the plot shall be 1 acre provided however that this will not apply to plots already permitted to be sub-divided by Government as on 5th February, 1987 the day on which revised development plan of Pune came into force.
Therefore, the Petitioners have contended that in view of the said clarification by the State Government, the State has confirmed that the minimum size of plots in Koregaon Park as per lay out to be as 1 acre.
15. The Petitioners have also relied on Exhibit “A” to affidavit in reply dated 7.8.2000 in the aforesaid Civil Application wherein it is mentioned that at Koregaon Park plot sizes of 1 acre at few other places like Wilson Garden etc. it is half an acre.

16. The Petitioners have also relied on the Collector’s observations in Order dtd. 30.4.1991 being Exhibit D to the Petition as under:

One thing however must be understood that the Koregaon Park area was initially acquired by the State Government with a view to develop well laid out locality by providing other infrastructures and facilities. This entire land of Koregaon Park was thus owned by the Government. A proper lay out was then prepared providing residential plots of minimum area of 1 acre. This lay out was sanctioned and approved by then Collector in the year 1921 with a view to control and regulate building activities in this area.
17. The Petitioners also contend that the Collector’s Rules for Koregaon Park area also have independent force of law. The learned Counsel very strongly relied on Meherbai Karl Khandalawala’s case wherein in page 548-49 the Division Bench of our High Court has observed as under:

In our view it is not necessary for a law in force to have any nomenclature or to be gazetted. All the parties have submitted that these rules were in existence and had force of law (at least till 15th February 1950). These rules have in fact been printed and published even by Respondent No. 2 in all its publications. Even in the Pune Building Regulations. Regulation 227 provides that in respect of various residential colonies, special building regulations were made and that these regulations continue to be in force in respect of constructions in these colonies. It is admitted by Mr. Sawant on behalf of Respondent No. 2 that apart from the Collector’s Rules, in respect of Koregaon Park there were no other special building regulations. Mr. Sawant also admits that the reference to special building regulations in Regulation 227 is to the Collector’s rules. Under these circumstances it will have to be held that the Collector’s Rules, at the relevant time, had a statutory force.
18. The Respondents had sought to contend that the Collector’s Rules were superseded and impliedly stood repealed on and after 15th February, 1950. when the said Koregaon Park area was included within the limits of Pune Municipal Corporation, the Court after considering the said submissions rejected the same in the said Meherbai Karl’s case as under:

The authorities cited by Mr. Desai also lay down the well established principle that there is a presumption against repeal by implication. This is on the assumption that the Legislature enacts laws with a complete knowledge of all existing laws pertaining to the same subject and the failure to add a repealing clause indicates that the intent was not to repeal existing legislation where the provisions of a special statute are wholly repugnant to the general statute, it would be possible to infer that the special statute was repealed by the general enactment. A general statute applies to all persons and localities within its jurisdiction and a scope as distinguished from a special one which in its operation is confined to a particular locality, therefore when it is doubtful whether the special statute was intended to be repealed by the general statute the Court should try to give effect to both the enactments.
Bearing the above mentioned principles in mind, it will have to be considered whether the Collector’s Rules and Building Rules and Bye-laws of Respondent No. 2 cannot both be given effect to. The Building Rules and Bye-laws of Respondent No. 2 are for the whole of Pune. Koregaon Park area is a specially maintained residential area, free of heavy traffic with a large number of old and beautiful buildings. All lanes are wooded with citrea and other trees like Gulmohar, Neem, Mango. The area has thickly planted avenue. The entire area has the character of a park. Under the circumstances it is but natural that there would be special rules regulating building activities in the area. We do not see any conflict. The building bye-laws and rules of Respondent No. 2 apply to rest of Pune and for Koregaon Park and other special residential areas special regulations prevail.
19. The Petitioners have also disputed the contention of Respondents that Collector’s Rules were not incorporated in the Draft Development Rules framed in 1982 for Pune. The Respondents contended that the Collector’s Rules did have the force of law and always had the force of law having been made in exercise of power conferred upon the Collector under Section 37 of Bombay Land Revenue Code, 1879. Section 37(1) reads as under:

37(1) All Public roads, lanes and paths…and all lands wherever situated/which are not the property of individuals, or of aggregates of persons legally capable of holding property…are and are hereby declared to be, with all rights in or over the same, or appertaining thereto, the property of Government; and it shall be lawful for the Collector, subject to the orders of the Commissioner, to dispose of them in such manner as he may deem fit, or as may be authorised by general rules sanctioned by Government.
20. Similarly the Petitioners also relied on Section 336 of Maharashtra Land Revenue Code, 1966 which provides that any saving, provisions made in any of the chapters of that Code anything done or any action taken, including any Rules, assessment, appointments and transfers made…forms and leases granted,…show, insofar as it is not inconsistent with the provisions of the Code be deemed to have been done or taken under the corresponding provisions of this Code and shall continue to be in force accordingly unless and until superseded by anything done or action taken in this Code. Therefore, the Petitioners contended that by virtue of this saving, the Collector’s Rules are expressly saved, as also the leases granted by the Secretary of State in Council to the individual lessees of the 122 plots at Koregaon Park. Therefore, the Petitioners have submitted that rules framed under Section 37 of the Bombay Land Revenue Code, 1879 have always had independent force of law and continue to have the force of law under the Maharashtra Land Revenue Code, 1966 and continue to govern the 122 plots of land at Koregaon Park.

21. The Petitioners have also submitted that the said Appendix “S” assuming were to have been added subsequent to the sanction of Development Control Rules on 5.1.1987, the same does not amount to a modification of substantial nature and this issue has been dealt with in the aforesaid Meherbai Karl Khandalwala’s case as under:

In the view that we have taken i.e. that the Collector’s Rules were always applicable and had the force of law the permission granted to the Respondents to construct as per plans sanctioned would have to be revoked…. In the view that we have taken, it is not necessary for us to deal with or decide the other arguments which have been made and which are set out hereinafter.
Mr. Desai also assailed the inclusion of these Collector’s Rules in the final development plan and had submitted that this amounts to a major modification which could not have been carried out without the same having been again published and objections invited. He submits that if any major modification is to be carried out, then under Section 31 of the M.R.T.P. Act objections have to be invited. In this behalf, reliance is placed upon an unreported judgment of our High Court in the case of Manek Davar v. State of Maharashtra, decided on 9.10.1984, to the effect that modification carried out without following the procedure of Section 31 would be void and unenforceable. This argument loses much of its value in the view that we have taken viz., that the Collector’s Rules had the force of law and were always applicable. However, as stated earlier, in the view that we have taken it is not necessary to decide this point and we refrain from expressing any view of it.
22. The Petitioners also contend that as per Rule 36 of the Appendix “S” i.e. Collector’s Rules which states “no building shall be used for other than residential purpose” has to be read in the light of D.C. Rules and cannot be read in isolation. For that purpose strong reliance was placed on Rule 32, despite that Rule expressly stating that the Rules and Bye-laws of the Municipality or local Authority shall apply in addition to regulations prescribed by the D.C. Rules. That means the D.C. Rules as per Appendix “S” are mandatory and in addition thereto the other rules and bye-laws of Municipality will apply.

23. Mr. Anturkar, the learned Counsel appearing for Respondents 4, 8, 9, 10, 11 and 13 raised the following broad objections.

24. Firstly according to him Appendix “S” did not factually form part and parcel of the Development Control Rules. He also submitted that even assuming that Appendix “S” has been incorporated at the time of sanction of Development Control Rules the same could not be part of Development Control Rules inasmuch as the mandatory provisions of second proviso to Section 31(1) of Maharashtra Regional and Town Planning Act, 1966 have not been complied with and therefore the said Rules could not form part of Development Control Rules. The learned Counsel submitted that even assuming that the said Appendix “S” were to be part of Development Control Rules, the constructions that are being carried out do not violate any of the restrictions imposed by the said Appendix “S”.

25. He submitted that this Court ought to construe that the said Appendix “S” was not part of the D.C. Rules and that the said Rules were not forming part of D.C. Rules for noncompliance of mandatory provisions of Second Proviso to Section 31(1) of the M.R.T.P. Act, 1966. The learned Counsel submitted that the said Appendix “S” did not have the force of law inasmuch as the learned Counsel contended that this judgment of Meherbai Karl Khandalwala’s case requires reconsideration and should not be followed. In any event he submitted that after 1950 the said Rules ceased to have any force of law in view of the provisions of Bombay Provincial Municipal Corporation Act. In any event the learned Counsel for the Respondents has submitted that Appendix “S” will have no force of law after 1987.

26. As far as the issue with regard to minimum area plot in Koregaon Park is concerned, the learned Counsel submitted that the notification issued by the State of Maharashtra under Maharashtra Regional and Town Planning Act, 1966 under Section 154 determining the minimum area of plot to be illegal, since it is contrary to the mandatory provisions of the said Act. Thereafter, Mr. Anturkar, the learned Counsel for the Respondents submitted in detail that Appendix “S” was factually not included in Development Control Rules and for that purpose he pointed out the following circumstances. On 5.1.1987 he submitted that Appendix “S” was not incorporated in the said Rules. On 5.1.1987 sanction was given to Development Control Rules by the Government of Maharashtra wherein Rule N. 2.2. was not included and they have been included subsequently. He also pointed out that on 6.1.1987 the State Government had published a Draft Development Plan in Government Gazette. The list of permitted modifications by the State Government were also published and in that list there is no reference to Appendix “S” or the provisions of Rule N. 2.2. or modifications made by Shri Pantbalkundri. Mr. Anturkar laid a stress that only on 23.1.1987 Mr. Pantbalkundri wrote a letter to the Municipal Commissioner, Pune and the Director of Town Planning, Pune giving the list of corrections to be carried out in the sanctioned Development Control Rules. In the said list for the first time paragraph N.2.2. is modified so as to make a reference to Appendix “S”.

27. Mr. Anturkar, the learned Counsel for the Respondents submitted that on 29th January, 1987, the Government had permitted some modifications and the same were published in Government Gazette. In that list of permitted modifications granted by State Government, there was no reference to Appendix “S” or any reference to modification directed to be carried out in the sanctioned Development Plan and in particular modifications in respect of Rule N. 2.2. Mr. Anturkar pointed out that in the affidavit filed by one Mr. Vijay Ramchandra Karulkar in Civil Application No. 447 of 2000, Assistant Director of Town Planning, Pune has enclosed a letter dated 23.1.1987 written by Mr. Pantbalekundri the then Deputy Secretary to the Government of Maharashtra wherein it is mentioned that on verification of the Rules certain inadvertent errors have been noticed which needed correction and accordingly corrections had to be carried out in the sanctioned Development Control Rules. Therefore, Mr. Anturkar, also pointed out that letter dated 23.1.1987 which is subsequent to the date of final sanction dated 5.1.1987 and he emphasised that the corrections to be carried out in the sanctioned Development Control Rules means that Appendix “S” was factually not incorporated in D.C. Rules and also even assuming the same were to be incorporated the mandatory provisions of second Proviso to Section 31(1) of Maharashtra Regional and Town Planning Act, 1966 were not complied with.

28. Mr. Anturkar emphasised that under Section 157-A of the Maharashtra Regional and Town Planning Act, 1966, every Development Plan which is finally sanctioned by the State Government has to be authenticated under the seal and signature of the Secretary to Government, Urban Development and Public Health Department or such other Officers, not below the rank of Deputy Secretary, as may be specified by the Secretary. It is also pointed out that under Section 157-A(1-A), every such plan is required, under Sub-section (1) of that Section, to bear signature of the Secretary, or such other Officer and then shall be deemed to be properly signed only if the first and the last page of such plan or scheme are signed by the Secretary or such other Officers and the intervening pages thereof bear the seal and the fascimile of the Secretary or such other Officer thereof. Mr. Anturkar also pointed out that after Appendix “R” there is a stamp and seal as such Appendix “S” was not part of the said Development Control Rules. Mr. Anturkar also sought to explain that Appendix “T” was actually the concerned development plan map which is kept separately and therefore merely because Appendix “T” was there would not necessarily mean Appendix “S” was already incorporated.

29. The brief facts of illegalities alleged in individual plots are as under.

30. As far as plot No. 2 is concerned which is owned by Respondent No. 4, admeasuring about 1.32 acres, the constructions carried out therein are illegal. In respect of this Plot No Objection Certificate was refused by the Collector twice. Thereafter in an appeal the Minister has reversed the said order of refusal passed by the Collector. The Petitioners further submit that the plans sanctioned by the Pune Municipal Corporation have been revised three times and thus the third revision does not have the sanction either of the Minister or the Collector’s N.O.C. for the same and yet the construction activity is going on as per the third revised plan sanctioned by the Pune Municipal Corporation.

31. The Petitioners have further submitted that as per the revised sanctioned plan, one Main Bungalow (consisting partially on ground plus one storey and partially on stilts plus two storeys and five structures described as Units have been permitted. Each of these so-called outhouses is in fact an independent, separate bungalow, being assigned to and used by different and separate owners who are unconnected with the Main Bungalow. Such a permission was refused twice by the Collector as the same is in direct breach of Rule 3 of the Collectors Rules and of Appendix “S”. Therefore, the Petitioners have contended that the said sanction by the Pune Municipal Corporation vide its Commencement Certificate No. 2139 dated 4.1.2000 is totally illegal and in flagrant breach of the Collector’s Rules and therefore the same should be quashed and set-aside and to prevent the construction activity of any structures on the basis of such an illegal Commencement Certificate and further to issue an order of demolition of any construction put up so far.

32. As far as Plot No. 19 admeasuring 1.18 acres, which is owned by Respondent No. 5 is concerned the Petitioners-submit that the buildings on this plot are used for commercial purposes that is to say for running a hotel. The Petitioners submit that the building has been constructed without the Collector’s No Objection Certificate and has been occupied without an occupation certificate. The new building has been constructed allegedly as an extension of the existing main building and on the side and in front of it have been approved. The new main building is of ground plus one storey, each floor having 8 rooms to be used as hotel rooms. Each room is a one room tenement with a pantry and bathroom. The new main building is connected to the existing main building with only by an external pathway which is open to the sky. The Petitioners further submit that the architecture of the new main building is not in conformity with that of the existing main building, which is a heritage building. The Petitioners further submit that the Pune Municipal Corporation had refused to sanction the plan on various occasions on the ground that the outhouses cannot be sanctioned in front of the main building and that the said outhouses proposed is a two storeyed building and the user of green house is also not as per Appendix “S” and the outhouses cannot be sanctioned in front of the main building. The Petitioners submit that the said Respondent had filed an Appeal to the Minister on the refusal of sanction by the Pune Municipal Corporation wherein the Respondent herein has filed an affidavit that the Appellant was carrying on commercial activity of hotel business and as such Rules 3 and 16 of Appendix “S” do not apply to them. The Petitioners submit that on 14th May, 1998 the Pune Municipal Corporation had approved the revised proposal submitted by the Respondent vide Commencement Certificate No. 2089 for a second main building attached to the existing main building and as an extention to it inter alia on the condition that N.O.C. from Collector shall be obtained for the unauthorised construction and the N.O.C. shall be obtained for the proposed future construction. Still the Respondent is carrying on construction work without prior N.O.C. from the Collector. The Circle Officer, Yeravada had carried out a Panchanama and took photographs of the development on the plot. The Collector, on completion of enquiry called upon the Respondent to forthwith stop use of the plot for commercial purposes and called upon them to submit their explanation as to why action under Section 45 of the Maharashtra Land Revenue Code should not be initiated. Thereafter on 27.12.1999 the Divisional Commissioner had passed an order in the appeal filed by the Respondent, wherein it has been held by the Divisional Commissioner that the power of the Collector to approve building plans are retained as per the order passed in Writ Petition No. 1203 of 1985, in which the High Court has held “The building bye-laws and rules of Respondent No. 8 Pune Municipal Corporation to apply to rest of Pune and for Koregaon Park and other special residential areas special regulations prevail.” Further the Divisional Commissioner has held that the Respondent’s claim that he had obtained commercial N.A. permission in 1986 is not proved. Thus the order of the Divisional Commissioner clearly shows that the Respondent had started the construction without obtaining permission/N.O.C. from Collector. Ultimately the Divisional Commissioner has passed an order setting aside the order of the Collector dated 4.3.1999. In the said order it is further directed to the Collector and the Pune Municipal Corporation to take action for starting construction without obtaining N.O.C. and for occupation, if the buildings were actually occupied.

33. As regards Plot No. 27 which is owned by Respondent Nos. 6 and 7 admeasuring an area of plot 1.14 acres, the Collector has granted N.O.C. for five Main Buildings on a condition of filing an affidavit by the Respondent No. 7 that he will abide by Building Bye-laws for Koregaon Park area framed by the Collector. The Petitioners submit that this approval by the Collector is ex-facie contrary to Rule 3 of the Collector’s Rules and of Appendix “S”. It also violates condition 3 of the Lease Deed. The Petitioners further submit that on a plot of one acre, only one Main Building and such outhouses as are reasonably required for the bona fide use and enjoyment by its occupants and their domestic servants are legally permissible. Therefore, the Petitioners submit that the Collector’s N.O.C. be quashed and set-aside and no construction can be permitted on the basis of such an illegal N.O.C.

34. As regards Plot No. 35 which is owned by Respondents 8, 9 and 10, admeasuring about 1.24 acres, it is submitted by the Petitioners that the Collector had issued N.O.C. dated 20.8.1999 and this N.O.C. is subject to scrutiny of Pune Municipal Corporation. Pune Municipal Corporation has sanctioned the plans for construction of four structures described as “outhouses” and in addition thereto has also sanctioned two garages. In all, it is submitted by the Petitioners, there are six outhouses on one plot. The Petitioners submit that these outhouses are proposed to be sold to different owners, so that each third party purchaser becomes the owner of each of the said structure. None of the structures sanctioned as “outhouses” has any connection with the Main Bungalow. Thus, the Petitioners submit that, the original plot of one acre is being sub-divided into smaller plots and sanction has been illegally granted for construction of one structure on each of these smaller plots. Thus the Petitioners submit that such permission should be set-aside and quashed.

35. As regards the Plot No. 62 which is owned by Respondent No. 11, admeasuring 1.58 acres, the Petitioners submit that the Pune Municipal Corporation has sanctioned four structures under the guise of outhouses in the absence of Main Bungalow and thereby committed patent illegality in giving N.O.C. to the Respondent. On the said Plot No. 62 there was a main building which was a heritage structure but due to manouverings of said Respondent No. 11 the said building was removed from the said heritage list of Pune and was ultimately pulled down. As a result of this there was no structure on this plot. Therefore, Respondent No. 11 sought the construction of a main building and four outhouses in or around February 1997 and obtained a conditional sanction from the said Pune Municipal Corporation on the condition that the No Objection Certificate will be obtained from the Collector of Pune. Thereafter the Collector issued a letter staying the development of the said plot and thereafter on 13th August, 1997 the said Pune Municipal Corporation issued a show cause notice as to why the said plans should not be cancelled. The Respondent No. 11 had challenged the said order before the Revenue Minister. The Revenue Minister had set-aside the both the above orders. Ultimately the said Respondent is allowed to construct four structures along with one main building which are in the nature of five main buildings, and which according to the Petitioners are not permissible at all, as per Collector’s Rules.

36. As regards Plots 92 and 93 are concerned both the plots are held by Respondent No. 12 admeasuring 1.29 Acres and 1.32 Acres respectively. On these two plots more than one main building has been sanctioned under the guise of sanctioning “outhouses”. The Petitioners further submit that the said sanctions have been given after filing of the present Petition by both the Collector as well as Pune Municipal Corporation. The repairs and renovation work of the Main Building began without even a sanction from the Pune Municipal Corporation. Therefore, the Petitioners submit that the N.O.C./permission of the Collector and P.M.C. are illegal and violative of Collector’s Rules, Appendix “S” and also the terms of the Lease Deed. Such permission/N.O.C. ought to be quashed and set aside and any constructions on the said plot ought to demolished.

37. As regards Plot No. 122/1 which is owned by Respondent No. 13, admeasures 1525 sq. metres. On the said plot there are four main buildings of ground plus one storey each. Each building has its own plinth and having independent access and completely self contained including a separate roof top water tank for each of the building. The Petitioners submit that the construction work recommenced after the petition was filed and the said superstructure has been completed. The Petitioners submit that the recommencement of work after three years, is without any valid sanctioned plan in existence and that the plan which was sanctioned earlier by Pune Municipal Corporation had lapsed in 1998, since the sanction is valid for a period one year only.

38. As against the above submissions and contentions of Petitioners, the Respondents have made the following submissions dealing with each plot as under.

39. As far as Plot No. 2 is concerned, the main contention of the Respondent is that though the Collector had refused to issue N.O.C. the Respondent was successful in getting the necessary development permission in an Appeal filed before the Hon’ble Chief Minister.

40. In respect of Plot 19, the learned Counsel Mr. Tulzapurikar for the 5th Respondent who is the owner of the said plot, submits that the word “residence” or “residential” is not defined in Appendix “S”. Therefore, it is necessary to give a natural and ordinary meaning to the words “residential purposes”. He further submitted that the use of the words “residential purposes” is to be contrasted with the use of a building for office, factory, industry, school, cinema or drama theatre, amusement centre, indoor sports activities or temple, mosque, church or any other place of worship. He further submitted that any contrary interpretation of the words “residential purposes” will result in an anomalous situation. He further strongly argued that if it is held that by running a hotel the 5th Respondents are earning income and, therefore, hotel is not being used for residential purposes, it will mean that a owner of a building cannot even grant tenancy in respect of any building in Koregaon Park, since such landlord will be earning income thereby. Such an interpretation will be absurd and it will result in an anomalous situation.

41. Mr. Tulzapurkar, the learned Counsel for Respondent No. 5 vehemently contended that although under the Maharashtra Land Revenue Code, the running of a hotel will not amount to the use of a land for “residential purpose”, but will amount to use of the land for commercial purpose, the same meaning cannot be given to the wording “residential purposes” in Development Control Rule 36. The Maharashtra Land Revenue Code and the Development Control Regulations’ in which Rule 36 is to be found do not operate in the same field. The purposes of the two legislations are different. The Maharashtra Land Revenue Code essentially deals with revenue and the types of user of land from the point of view of revenue. The object of Maharashtra Regional and Town Planning Act, the Development Plans and Development Control Regulations and which form part of the Development Plans are meant for providing for orderly development of the area covered by the Development Plans. Since the Maharashtra Land Revenue Code and the M.R.T.P. Act cannot be considered to be pari materia, the meaning to the “residential use” in Maharashtra Land Revenue Code cannot be given to the words “residential purposes” in Rule 36 of Appendix “S” of the Development Control Rules under the M.R.T.P. Act, 1966.

42. The learned Counsel for Respondent No. 5 has further contended that Rule 32 in Appendix “S” provides that if the buildings are situated within the limits of Municipality, the Rules and bye-laws of the Municipality shall apply in addition to Regulations prescribed in Appendix “S”. It is, therefore, submitted that while construing the words “residential purposes” in Rule 36 of Appendix “S”, reference is required to be made to the Development Control Rules since they both operate in the same field. The Respondent has further submitted that in view of Rule 32 of Appendix “S”, Development Control Regulations regarding the land use as provided in Rule 14.2 of Development Control Rules shall apply. In Rule 14.2 the building uses which are permitted in various zones are given in Appendix “M”. In Appendix “M”, residential zone R-2 is provided for. The present plot forms part of R-2 zone and in Clause XXXII of Appendix M-2.2.1 at page 113 of Development Control Rules a plot in R-2 zone can.be used for a residential hotel.

43. The learned Counsel for Respondent No. 5 submits that Rules 11 and 13 of Appendix “S” cannot be looked into for the purpose of finding out whether a building in Koregaon Park can be used for a residential hotel. The said Rules do not apply in the present case. The said Rules are applicable only where flats are to be constructed. The said Rules prohibit construction of one room tenements. What is intended by Rule 13 is that there should not be a chawl type construction having one room tenements. The word “tenement” has been defined in Rule 2.85 to mean “an independent dwelling unit with a kitchen”. A room in a hotel cannot be construed as a tenement by any stretch of imagination. The word “tenement” is required to be construed in the light of the aforesaid definition in Rule 2.85 to be read in the context of prohibition in the same Rule against construction of chawls. A tenement is a one single unit ownership which is transferable where there is no restriction on the number of persons staying in the tenement. A room in a hotel is not an independent dwelling unit. A room in a hotel is a part of one building and one single unit and it cannot be construed as a tenement.

44. The learned Counsel for Respondent No. 5 has further submitted that as regards the challenge to the Order of the Divisional Commissioner setting aside Collector’s Order of refusal has nothing to do with the Petitioners’ contention of the sanction for additional construction being in violation of any Rules in Appendix “S”. The Divisional Commissioner’s finding that the hotel use is permitted in Koregaon Park in no way affects the Petitioners’ contention. The learned Counsel further submitted that the Divisional Commissioner has rightly disregarded the meaning of the words “residential use” in the Maharashtra Land Revenue Code for construing the words “residential purposes” in Appendix “S”, therefore the aforesaid finding that hotel is permitted in Koregaon Park cannot be said to be perverse. He further submitted that the Divisional Commissioner has rightly passed the order stating that the Collector should get the building sanction scrutinized by the Director of Town Planning and an independent person, who is incharge of planning. The Pune Municipal Corporation was directed to take action depending on the result of such a scrutiny. Therefore, the Respondent submitted that it is pertinent to note that the building plan was scrutinized by the Director of Town Planning and he did not find anything objectionable as it is clear from the letter of Collector dated 7th October, 2000 and it also makes clear that the Collector has accepted the opinion of the Town Planning Department.

45. The learned Counsel for Respondent No. 5 has further submitted that the Divisional Commissioner had directed the Pune Municipal Corporation that if the Respondent No. 5 starts construction without obtaining N.O.C. from the Collector it should take action against Respondent No. 5. Therefore, the learned Counsel for Respondent No. 5 has submitted that by virtue of letter dated 25th August, 2000 from the Collector virtually grants the N.O.C. and once the plans were approved by the Pune Municipal Corporation, the grant of N.O.C. by the Collector is a mere formality and thus it was submitted that the Petitioners have no right or locus to challenge the said order as the Petitioners were not concerned with the resumption of land.

46. The learned Counsel for Respondent No. 7 who is the owner of Plot No. 27 has submitted in his reply that Rule 32 of Appendix “S” itself clarifies beyond all reasonable doubt that the Collector’s Rules are to apply in addition to the other rules. The Rules indicated in Appendix “S” therefore at the highest could only be referred to as broad parameters or guidelines for the manner in which the development activity should be carried out in Koregaon Park. Particulars and the nature of development activity such as user, minimum area of plots etc. are to be found elsewhere in the Development Control Rules and not in Appendix “S”. Therefore one has to harmoniously construe the provisions of the D.C. Rules with Appendix “S” in order to give a logical and purposeful interpretation. Appendix “S” under no circumstances can therefore be read in isolation.

47. The learned Counsel for Respondent No. 7 vehemently submitted that the Plot No. 27 of Koregaon Park, Pune is situated within the Municipal limits of Pune. Under the provisions of Urban Land (Ceiling and Regulation) Act, 1976 City of Pune is falling in category “B” wherein a person can hold vacant land not in excess of 1000 sq. mtrs. Therefore, for the-sake of argument if it is presumed that a person is the owner of vacant land in Koregaon Park admeasuring 4000 sq. mtrs. equivalent to 1 Acre; under the provisions of Urban Land (Ceiling and Regulation) Act, 1976 land admeasuring 3000 sq. mtrs. would be in excess and will be vacant land under the said Act. This would necessarily lead to such a land plot being sub-divided into four parts and automatically it will lead to area retained by the owner being 1000 sq. mtrs. Therefore, the learned Counsel submitted that the contention of the Petitioners that area of no plot of land within Koregaon Park can be less than 1 Acre equivalent to 4000 sq. mtrs. is erroneous.

48. With regard to violation of Rule 36, the learned Counsel submitted that the Respondent is not constructing any hotel and the said Rule 36 restricts the user of a building and not the nature of the building. It merely states “no building shall be used for other than the residential purpose” and what is “residential purpose” is nowhere mentioned in Appendix “S”, As far as this plot is concerned, the Respondent submitted, the principal use is of residence and Clubhouse, health club, restaurant are of ancillary use for the beneficial enjoyment of the residents of buildings 3 and 4.

49. As regards plot No. 35 the Respondents justify the constructions in the light of permission granted by Collector on 11.1.2000.

50. As far as plot No. 62 is concerned the concerned Respondent had obtained conditional sanction from Pune Municipal Corporation to erect one main bungalow and four outhouses, but the Collector refused N.O.C. Thereupon the Respondent moved the Hon’ble Revenue Minister, who had set aside the order of the Collector and allowed the Respondent to develop the property.

51. As regards plots 92 and 93, the learned Counsel for Respondent No. 12 has submitted that in the year 1994 Respondent No. 12 and Ms. Rutty Wadia had assigned their leasehold rights in the aforesaid plots to Blackhill Investments Private. Ltd., High tide Investments Pvt. Ltd. and Greypoint Investments Ltd. all the three companies controlled by the C.K. Mehta family of the Deepak Fertilizers and Petrochemicals Ltd. group. Thereafter it was proposed to be demolished as the structures were 50 years old. Pursuant to the application of the said Respondent, Commencement Certificate has issued by the Respondent No. 2 permitting the development of Plot Nos. 92 and 93. The learned Counsel contended that the development is not contrary to Appendix “S”. Without prejudice the above the learned Counsel submitted that if needed his clients are ready and willing to remove the mezzanine floor constructions, whereby partitions have been put on mezzanine floor to convert the same into rooms. Mezzanine Floor is defined in Development Control Rules as an intermediate floor between two floor levels above ground level.

52. As regards Plot No. 122/1 the learned Counsel for Respondent No. 13 submitted in reply that the construction on the said plots consists of one building only and in support thereof he has annexed a certificate issued by one Mr. S.B. Tamaskar, Architect. Since the said building is designed in such a manner that each residential unit has maximum privacy, light and ventilation. Further, parking spaces have been provided between each of the said residential units. However, the said structure had only one Plinth which is structurally connected at plinth and beams level and also lintel level. The Municipal Corporation of Pune also issued single plinth checking certificate on 2.1.1997 in respect of the construction upto plinth level. Therefore, the learned Counsel for Respondent submitted that the contention of the Petitioners’ that there are four independent main buildings is totally baseless and the Respondent has not violated any provision of law in the said constructions.

53. Writ Petition No. 656 of 2000 challenging the Commencement Certificate issued by the Respondents 1 to 5 permitting Respondent No. 15 who is the owner of Plot Nos. 7, 8 and 9 in the Koregaon Park area. The said Respondent No. 15 who was carrying on building and development activities and putting up an eye-hospital and a cardiac centre on the said plot. The Petitioners have filed the Writ Petition to enforce the public duty and obligations of Respondents 1 to 5 under the M.R.T.P. Act, 1966, the Development Control Rules as applicable to the Pune City. The Petitioners are the owners of various plots in the Koregaon Park area. The Petitioners have submitted that the 10th and 12th Respondents who own plot No. 35 had applied for N.O.C. on 17th August, 1999 and were granted permission to build more than two outhouses and after the said permission is granted both the Respondents have entered into further resale agreements in respect of the said proposed construction thereby leading to commercial exploitation of the said plots, wherein the number of tenements would alarmingly go up setting at naught the entire Development Control Rules as regards Koregaon Park Scheme which cannot be permitted at all and which is totally against the orders of this Court itself. Similarly Respondent submitted that Respondents 13 and 14 who own Plot No. 27 have been granted the same permission as mentioned hereinabove by the 4th Respondent – Collector on 15th October. 1999.

54. In reply to the above contentions the learned Counsel for Respondents to the Petition submitted that as regards Respondent No. 15 the Assistant Director of Town Planning, Pune has filed an affidavit in reply wherein he has relied on the earlier Judgment of this Court in Writ Petition No. 2157 of 1991, 1203 of 1985 and submitted that since this Court itself has taken a view that in the light of the laudable object of the hospital and the fact that the Trust has invested huge amounts for an important public utility purpose, the relevant rules need not be strictly adhered to.

55. The fact giving rise to Writ Petition bearing No. 3691 of 2000 are slightly different in the sense the Petitioner No. 1 in this Petition is the owner of Plot No. 2 who had filed an application for No Objection Certificate which came to be refused by the Collector. Therefore, in an appeal before the Chief Minister against the above order, he was permitted to develop the plot. Respondents 3 and 4 in this Petition have filed the above mentioned Writ Petition No. 1344 of 2000 wherein the present Petitioner is Respondent No. 4. As far as Petitioners 2, 3 and 4 are concerned, they are owners of Plot No. 35 in the said Koregaon Park area admeasuring about 1.24 acres. They were also granted permission by the Collector on 11.1.2000 and the same is also under challenge in Writ Petition No. 1344 of 2000 wherein the present Petitioners 2, 3 and 4 are Respondents 8, 9 and 10 respectively. So far as Petitioner No. 5 is concerned, who holds plot No. 62 has been granted permission to construct on this plot by the Revenue Minister on 26.8.1997 is also under challenge in the above Writ Petition No. 1344 of 2000 wherein the present Petitioner is Respondent No. 11. Therefore it is not necessary to go in the affidavit in reply filed by the Respondents in this Petition so as to avoid the duplication of the same contents.

56. In this Writ Petition No. 923 of 1992 there are four plots bearing Nos. 57, 88, 4 and plot No. 50-51. As far as Plot No. 57 is concerned, building constructed to be on this plot does not have a proper sanction, commencement certificate has also lapsed by one year etc. Similarly as far as Plot No. 88 is concerned, after the decision in Writ Petition No. 1203 of 1985 the Developers of the said Plot were bound to apply for plans and permission but they did not do so therefore the Petitioner submitted that there is no valid permission for Plot No. 88. Even the Commencement Certificate for construction on Plot No. 88 had lapsed after one year and therefore construction carried out after 26th June, 1998 is illegal, and the development of the said plot began without any No Objection Certificate from the Collector. Therefore the Petitioners have contended that the construction on the said plot is violative of proviso to Rule 3.

57. As far as Plot No. 4 in the said Koregaon Park area is concerned originally there was only a single building and a single outhouse. The proposed development on Plot No. 4 includes the addition of an “attic” to the existing main building. This attic has 21 rooms for residence, as well as bathrooms and toilets. The Petitioners further submitted that on the said plot proposed structure is of ground plus two upper floors which is also in violation of Rules 10 of the Rules in Appendix “S”. Therefore the Petitioners have submitted that illegal constructions on the attic have been wrongfully sanctioned by the authorities concerned.

58. As regards Plot Nos. 50-51, on these two plots four buildings were proposed to be constructed, which is ex-facie illegal. When Rule 10 of Appendix “S” requires that every building shall be of only two storeys including the ground floor, the Respondents have put up even a second floor. Therefore, a show cause notice was issued to the developers of the said plot as to why demolition should not be ordered. Even Collector had cancelled the N.O.C. on 31st July, 1990 given on 20th September, 1988. Pursuant to the above letter Municipal Corporation of Pune had issued “stop work notice” to the developers and to their architects on 21st August, 1990. Thereafter, the said builders took proceedings in the Pune Civil Court challenging the cancellation of the N.O.C. Inspite of the status quo order granted by the Civil Court, the said developers had carried on development activities on the said plot. On 23rd January, 1991 the Pune Municipal Corporation has rejected the application for completion certificates for buildings ‘A’, ‘B’ and ‘C made by the architects of Respondent No. 6 Society on the ground that work had been carried on inspite of stop work notices as mentioned hereinabove. Therefore, the Petitioners submitted that the construction work on Plot Nos. 50-51 to be totally illegal.

59. We have perused the replies filed by these Respondents in this Writ Petition their replies are on the same line as filed in the above Writ Petitions. Therefore, it is needless to repeat the same again. As far as Writ Petition No. 5710 of 1991 is concerned the Petitioners have challenged the Commencement Certificates granted by the Respondents 1, 2 and 3 for the construction of buildings on Plot Nos. 57, 88, 50-51, 4, 22, 106-107, 15-16 and 12 at Koregaon Park, Pune on the ground that the said sanction of such building activities is totally illegal, ultra vires and void and will upset the ecological balance and jeopardise the environment of Koregaon Park, which lacks the infrastructure to support such activities. In respect of Plot No. 57 the Petitioners have submitted that Respondent No. 7 has proposed to construct four buildings on this plot, out of them two having direct access to a matalled road, which is violative of Rule 4 of the Building Rules. The Petitioners also have submitted that the Respondent No. 7 has violated Rules 5 and 9 also.

60. As regards Plot No. 88, exclusive bungalows, each having five bedrooms and two, three or four bedrooms apartments including duplex flats with exclusive gardens and private terraces are sought to be constructed on this plot. Several buildings are thus proposed to be constructed thereby transgressing Rule 3, which permits construction of only one building per plot. More than one third of the plot is apparently being built upon in violation of Rule 9. Further the proposed construction of flats and multistoreyed buildings are in violation of Rule 11. Even stipulated set back has not been maintained in accordance with Rule 5.

61. Therefore, the Petitioners have submitted that in the light of the Collector’s Rules, as set out in Appendix “S” to the Development Control Rules for Development Plan, Pune (Revised) (Final), and the Judgment of this Court in Writ Petition No. 1203 of 1985 any sanction granted by Respondent Nos. 1 to 6 in respect of the said plots are null and void, illegal. The Petitioners have further submitted that issue of the impugned commencement certificates in respect of Plot Nos. 57, 88, 50-51, 106-107, 4, 22, 15-16 and 12 (South Court) tantamount to non-application of mind of Respondents 1 to 6 and it amounts to gross abuse of power and the said sanctions are totally illegal, arbitrary, capricious and in contravention of Appendix “S” of Development Control Rules.

62. Even in this Writ Petition No. 5710 of 1991 reply of the Respondents are same as filed in the main Writ Petition No. 1344, therefore, we are not incorporating here so as to avoid the duplication of the same.

63. In Writ Petition No. 227 of 1992 the Petitioners have challenged the various orders passed by the Respondents in violation of various Development Control Rules, Maharashtra Regional Town Planning Act, 1966 etc. in respect of various plots as such. And the Respondents have filed their usual reply as mentioned hereinabove.

64. After hearing all the learned Counsel for the parties at length, we find that there are three broad basic issues involved in all the above petitions:

(a) Whether Collector’s Rules i.e. Appendix “S” was factually included in the Development Control Rules which were sanctioned on 5.1.1987?
(b) Whether the aforesaid Collector’s Rules by themselves have force of law?
(c) Whether incorporating Appendix “S” to Development Control Rules amounts to a modification of substantial nature?
65. As far as the first issue is concerned, from all the contentions raised and the material produced before us we find that the aforesaid Collector’s Rules were in fact factually included in the Development Control Rules in the sense when the Development Control Rules were formulated they were very much part of the said Development Control Rules. For the following reasons we hold that the Collector’s Rules were included in Development Control Rules which were sanctioned on 5.1.1987:

(i) Various representations were made including B.E.A.G. for inclusion of the said Collector’s Rules in the Draft Development Plan to be submitted to the State Government.
(ii) The relevant correspondence between the State Government and Bombay Environmental Action Group also clearly indicates that the State Government was very actively considering to include the said Collector’s Rules in the said Development Control Rules as apparent from Exhibit “A” to the Petitioners affidavit in Writ Petition No. 1344 of 2000 dated 7th August, 2000 ;
(iii) The affidavit of Assistant Director of Town Planning dated 5th January, 1987 in paragraphs 5 and 8 makes it abundantly clear that the Appendix “S” i.e. Collector’s Rules was very much part of the Development Control Rules;
(iv) Even in the sanctioned Development Control Rules, Rule 2.20. a very specifically there is a reference to Appendix “T” to the Rules. If Appendix “T” were to be included obviously Appendix “S” was already incorporated;
(v) The index of the aforesaid Development Control Rules also clearly shows Appendix “S”;
(vi) Even the copy of the sanctioned Development Control Rules relied upon by the Respondents wherein Appendix “S” has been authenticated by Mr. Pantbalkundri on 18th September, 1986 which also indicates that Appendix “S” was part of the Development Control Rules even prior to sanction;
(vii) Similarly even the letter of Mr. Pantbalkundri dated 21st September, 1987 being Exhibit “D” to the affidavit of the Petitioner dated 7th August, 2000 there is a mention of minor correction was made to Rule N. 2.2 referring to Appendix “S” that is to say though it was part of the Development Control Rules there was a minor omission to mention the same;
(viii) Even the letter of Ministry of Environment dated 18th March, 1987 being Exhibit “D” to the affidavit of the Petitioners dated 7th August, 2000 clearly indicates that the Government of Maharashtra had informed the Central Government that the Collector’s Rules have already been incorporated by sanctioning the Draft Development Plan on 5.1.1987;
(ix) Section 150(1)(e) of Maharashtra Regional and Town Planning Act, 1966 provides that no act of proceeding taken under the Act shall be questioned on the ground merely of any omission defect or irregularity.
66. In any event even if it were to be construed that there was a minor correction carried out to Rule N. 2.2 as communicated by a letter dated 23.1.1987 of Mr. Pantbalkundri, it is a minor error and not a modification or change of substantial nature as contended.

67. Under the aforesaid facts and circumstances we are of the clear view that the said Collector’s Rules being Appendix “S” was part of the Development Control Rules which was sanctioned on 5.1.1987.

68. As far as the second issue is concerned i.e. whether the Collector’s Rules for Koregaon Park area had an independent force in law. In this behalf the learned Counsel for the Respondents had contended that after 15.2.1950 when the Koregaon Park was incorporated in the limits of Pune Municipal Corporation and in any event after 1966 when the said Rules stood repealed by the Maharashtra Land Revenue Code, 1966 they did not have the force of law. To counter this, the learned Counsel for the Petitioners have contended that this argument is not at all open to the Respondents inasmuch as this issue was very squarely raised i.e. whether the Collector’s Rules have force of law or not and the same has been conclusively adjudicated upon by the Division Bench of this Court in Meherbai Karl Khandalawala’s case. In fact, in the aforesaid judgment our High Court at pages 548 and 549 has held as under:

In our view it is not necessary for a law in force to have any nomenclature or to be gazetted. All the parties have submitted that these rules were in existence and had force of law (at least till 15th February, 1950). These rules have in fact been printed and published even by Respondent No. 2 in all its publications. Even in the Pune Building Regulations, Regulation 227 provides that in respect of various residential colonies, special building regulations were made and that these regulations continue to be in force in respect of constructions in these colonies. It is admitted by Mr. Sawant on behalf of Respondent No. 2 that apart from the Collector’s Rules, in respect of Koregaon Park there were no other special building regulations. Mr. Sawant also admits that the reference to special building regulations in Regulation 227 is to the Collector’s Rules. Under these circumstances it will have to be held that the Collector’s Rules, at the relevant time, had a statutory force.
69. The contention of the learned Counsel for the Pune Municipal Corporation is that, in any event the Collector’s Rules were superseded impliedly and stood repealed on or after 15.2.1950 when the Koregaon Park was included in the Pune Municipal Corporation. This issue was also considered by the Division Bench in Meherbai Karl Khandalawala’s case and this contention also was rejected as under:

The authorities cited by Mr. Desai also lay down the well established principle that there is a presumption against repeal by implication. This is on the assumption that the Legislature enacts laws with a complete knowledge of all existing laws pertaining to the same subject and the failure to add a repealing clause indicates that the intent was not to repeal existing legislation where the provisions of a special statute are wholly repugnant to the general statute, it would be possible to infer that the special statute was repealed by the general enactment. A general statute applies to all persons and localities within its jurisdiction and a scope as distinguished from a special one which in its operation is confined to a particular locality therefore when it is doubtful whether the special statute was Intended to be repealed by the general statute the Court should try to give effect to both the enactments.
Bearing the above mentioned principles in mind, it will have to be considered whether the Collector’s Rules and Building Rules and Bye-laws of Respondent No. 2 cannot both be given effect to. The Building Rules and Bye-laws of Respondent No. 2 are for the whole of Pune. Koregaon Park area is a specially maintained residential area, free of heavy traffic with a large number of old and beautiful buildings. All lanes are wooded with citrea and other trees like Gulmohar, Neem, Mango. The area has thickly planned avenue. The entire area has the character of a park. Under the circumstances it is but natural that there would be special rules regulating building activities in the area. We do not see any conflict. The building bye-laws and rules of Respondent No. 2 apply to rest of Pune and for Koregaon Park and other Special residential areas special regulations prevail.
70. The other objection with regard to the aforesaid Collector’s Rules not having the force of law is that the draft Development Control Rules were framed for Pune in 1982 and the building sanctioned with F.S.I. 1 were not invalid and could not be set aside. This issue was also dealt with in the aforesaid judgment Meherbai Karl Khandalawala’s case and the Court had rejected the submission on the footing that despite the non-inclusion of the Collector’s Rules in the draft Development Control Rules for Pune, the building permission and sanctions were illegal and contrary to law and would have to be set aside since they were not in conformity with the Collector’s Rules. That is to say the Collector’s Rules always had the independent force of law and were always applicable to Korgaon Park, independent of any law pertaining to the Pune Municipal Corporation.

71. It is also apparent that under Section 37 of the Bombay Land Revenue Act, 1879 the Collector has powers to frame rules. The said rules have been sanctioned by the Government and have the force of law under Section 37 of the said Act.

72. The other contention that Bombay Land Revenue Act, 1879 stood repealed by Section 336 by the Maharashtra Land Revenue Code, 1966 and that consequent upon such a repeal, the Collector’s Rules ceased to have the force of law. This is also erroneous in view of the fact that under Section 336 viz. the repealing section, it is clearly provided in the third proviso as under:

Provided also that subject to the preceding provisions, and any saving provisions made in any of the Chapters of this Code, anything done or any action taken, including any rules, assesments, appointments and transfers made…forms and leases granted,…show, insofar as it is not inconsistent with the provisions of this Code, be deemed to have been done or taken under the corresponding provisions of this Code. and shall continue to be in force accordingly unless and until superseded by anything done or action taken in this Code.
(emphasis supplied) Hereitalicised.
73. In view of the aforesaid provisions and submissions it is explicitly clear that the Collector’s Rules framed for Koregaon Park area under Section 37 of the Bombay Land Revenue Code, 1879 have always had independent force of law and continue to have the force of law under the Maharashtra Land Revenue Code, 1966 and continue to govern the 122 plots of land at Koregaon Park at Pune.

74. The third basic issue raised is whether inclusion of Appendix “S” amounts to a modification of a substantial nature. This issue was raised before the Division Bench in the aforesaid Meherbai Karl Khandalawala’s case. However, the Court had held that in view of the fact that the Court had taken a view that the Collector’s Rules had a force of law and were always applicable and as such the Court did not go into the issue whether the said inclusion of Appendix “S” to the Development Control Rules amounted to substantial modification. What is important is under Section 31 of the Maharashtra Regional Town Planning Act to decide whether or not a modification is of a substantial nature one must have regard to the modification depicted in the final plan vis-a-vis only the draft Development Plan and nothing else. In the instant case the grievance is that by virtue of Appendix “S” the F.S.I. permissible is only 0.66 whereas as per draft Development Control Rules the permissible F.S.I. was 1, therefore, mere reduction of F.S.I. of 33 does not constitute a modification of a substantial nature. At this juncture it may be noted that this modification was carried out in the year 1987, at that time Section 22A(f) of the Maharashtra Regional Town Planning Act, 1966 was not there and they were incorporated only in 1994 which defines what is a modification of a substantial nature. Therefore, we are not concerned with the said provisions inasmuch as in the instant case the said provision has no application. In this behalf the learned Counsel for Petitioners had referred to a judgment of this Court in Nivara Hakk Suraksha Samiti v. State of Maharashtra and Ors. Writ Petition No. 693 of 1991, wherein this Court had held that increase of F.S.I. is restricted to certain categories and restricted to certain areas within Greater Bombay, do not constitute a modification of a substantial nature. Similarly in another judgment of our High Court in Nagrik Vikas Parishad and Anr. v. State of Maharashtra 1989 (3) Bom. C.R. 210, wherein it has been held that modification of a substantial nature indicates a significant deviation or vital alteration. It is vital to note that this Appendix “S” i.e. Collector’s Rules are applicable to only a very small portion of Pune City viz. Koregaon Park area, which consists of only 122 plots and this restrictions of 0.66 F.S.I. is limited to only to this small area of Pune city, especially to maintain the entire area of greenery and to protect the wooded area, one cannot construe this reduction by comparing to rest of Pune City and the same would not amount to a modification of a substantial nature. As indicated in the aforesaid Division Bench Judgment of Nivara Hakk Suraksha Samiti v. State of Maharashtra (supra), this Court had in fact taken a clear view that increase in F.S.I. after restricting the same to certain categories and certain area only of Greater Bombay does not amount to a modification of a substantial nature.

75. Therefore, we are of the view that inclusion of Appendix “S” to the Development Control Rules which were not part of the draft Development Control Rules would not amount to modification of a substantial nature. In the sense that the said Appendix “S” are applicable to a very small area of Pune viz. Koregaon Park and this could not construed as a modification of a substantial nature in the context of entire final Development Plan sanctioned for the entire City of Pune.

76. Now on the factual aspects, one of the main objections raised by the Petitioners is with regard to construction of Hotel and Club Houses in Koregaon Park area. In that context the Respondents Pune Municipal Corporation and other respondents have submitted that Rule 36 of the Appendix “S” (Collector’s Rules) states that “no building shall be used for other than the residential purpose” has to be read in the light of the other Development Control Rules and cannot be read in isolation. Therefore, the contention is that the Appendix “S” is not complete Code by itself and if there is conflict between Development Control Rules and Appendix “S” the Development Control Rules should prevail and in that behalf the Respondents had relied on Rule 32 which says that bye-laws of the Municipality or local authority shall apply in addition to regulations prescribed above. Therefore the learned Counsel referred to the definition of “residential purpose” in the Development Control Rules. Rule 2.56. 1 which takes into consideration provisions of Appendix “M” 2.2.1 wherein entry xxxii “residential hotels” is listed. Therefore, the learned Counsel for the Respondents have contended that the “residential hotels” are permitted in Koregaon Park area and are not prohibited by Rule 36. On the contrary the learned Counsel for the Petitioners had submitted that the Appendix “S”. i.e. Collector’s Rules have been framed only for Koregaon Park area and they have to be strictly applied to Koregaon Park area and they cannot be rendered nugatory by referring to Development Control Rules applicable to the City of Pune. Therefore, the learned Counsel for the Petitioners contended that one cannot look to Development Control Rules specially 2.56.1 to find out the true and correct meaning and interpretation of “residential purposes” in Rule 36 of Appendix “S”. Therefore, the contention is that one cannot look to Appendix “M” 2.2.1 and Rule 2.56.1 as contended by the Pune Municipal Corporation and the concerned Respondents 5 to 7.

77. The learned Counsel for the Petitioners also contended that the “residential purposes” is used in contra distinction to “commercial purposes”. According to the learned Counsel for the Petitioner accommodating guests, tourists in a hotel, boarding and lodging would amount to “commercial activity”. The main contention of the Respondents – Pune Municipal Corporation has been that “residential hotel” would be permissible under Rule 36 of Appendix “S” because it is included in the definition of “residential building” in Rule 2.56.1 and while considering the Appendix “M” 2.2.1 which had a entry xxxii lists “residential hotels”. To answer this, the learned Counsel for the Petitioners submitted that such an interpretation would be a colourable device to destroy Appendix “S” (the Collector’s Rules) or to render it totally nugatory. In any event the learned Counsel for the Petitioners also submitted that the Government of Maharashtra had issued a notification on 3rd October, 1996 bearing No. TPS/1896/380/UD-13 dated 3rd October, 1996 wherein Appendix “M” 2.2 has been amended, whereby “M” 2.2.1 has been entirely deleted and replaced with only one entry, namely business/corporate offices on any floor. Therefore on or after 3rd October, 1996, in the R2 Zone only business/corporate offices are permitted subject to the conditions mentioned therein. Over and above the learned Counsel for the Petitioners also pointed out that the permission given to Respondent No. 5 to construct a building for a hotel on plot No. 19 was entirely illegal since as far back as on 3rd October, 1996 the aforesaid Appendix “M” 2.2.1 had already been deleted and also as far back as on 5.6.1997 there was an express exclusion of “residential hotel” from the definition of “residential building in Rule 2.56.1. Therefore, the learned Counsel for the Petitioners submitted that all the permissions and sanctions granted are patently illegal and without any authority of law.

78. In this behalf Mr. Tulzapurkar, the learned Counsel for the Petitioners also relied on two Apex Court judgments with regard to the principles of interpretation. Firstly the learned Counsel relied upon Jugalkishore v. Raw Cotton Co. Ltd. , wherein in paragraph 6 the Apex Court has held as under:

(6) …The cardinal rule of construction of statutes is to read the statute literally, that is by giving to the words used by the Legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the Court may adopt the same. But if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation. In the present case a literal construction of the rule leads to no apparent absurdity and, therefore, there can be no compelling reason for departing from that golden rule of construction.
79. Second judgment referred to by Mr. Tulzapurkar is State of Punjab v. O.G.B. Syndicate Ltd. , wherein in paragraph 33, the Apex Court has held as under:

(33) …In the first place, we are concerned solely with the interpretation of the Act of 1951 and unless there was an ambiguity it would be imperssible to refer to any previous legislation for construing the words in it. The examination we have made of the Act read in conjunction with the purposes it seeks to achieve which are manifest in its various provisions have led us unmistakably to the conclusion which we have expressed earlier. In the circumstances, there is no scope for invoking this external aid to the construction of the expressions used in the Act….
80. Mr. Seervai, the learned Counsel for the Petitioners referred to some judgments with regard to expression “residential use”. The learned Counsel referred to New Delhi Municipal Council v. Sohan Lal Sachdev , wherein in paragraph 12 of the said judgment this aspect has been considered in detail as under:

12. The two terms “domestic” and “commercial” are not defined in the Act or the Rules. Therefore, the expressions are to be given the common parlance meaning and must be understood in their natural, ordinary and popular sense. In interpreting the phrases the context in which they are used is also to be kept in mind. In Stroud’s Judicial Dictionary (5th Edn.) the term “commercial” is defined as “traffic, trade or merchandise in buying and selling of goods”. In the said dictionary the phrase “domestic purpose” is stated to mean use for personal residential purposes. In essence the question is, what the character of the purpose of user of the premises by the owner or landlord is and not the character of the place of user. For example, running a boarding house is a business, but persons in a boarding house may use water for “domestic” purposes. As noted earlier the classification made for the purpose of charging electricity duty by N.D.M.C. sets out the categories “domestic” user as contra distinguished from “commercial” user or to put it differently “non-domestic user”. The intent and purpose of the classification as we see it, is to make a distinction between purely “private residential purpose” as against “commercial purpose”. In the case of a “guest house”, the building is used for providing accommodation to “guests” who may be travellers, passengers, or such persons who may use the premises temporarily for the purpose of their stay on payment of the charges. The use for which the building is put by the keeper of the guest house, in the context cannot be said to be for purely residential purpose. Then the question is, can the use of the premises be said to be for “commercial purpose”? Keeping in mind the context in which the phrases are used and the purpose for which the classification is made, it is our considered view that the question must be answered in the affirmative. It is the user of the premises by the owner (not necessarily absolute owner) which is relevant for determination of the question and not the purpose for which the guest or occupant of the guest house uses electric energy. In the broad classification as is made in the Rules, different types of user which can reasonably be grouped together for the purpose of understanding the two phrases “domestic” and “commercial” is to be made. To a certain degree there might be overlapping, but that has to be accepted in the context of things. The High Court was not right in setting aside the order of the learned Senior Civil Judge merely on the ground that the use of electricity for running the “guest house” does not come under the category of “commercial use”. The High Court has not discussed any reason for holding that user in such a case comes under the category of “domestic” use.
81. Similarly Mr. Seervai also referred to another Supreme Court judgment in Municipal Corporation of Greater Bombay v. Mafatlal Industries and Ors. , wherein the Apex Court has held as under:

…The aforesaid expression connotes that the premises in question must be exclusively used as a residential premises, which in other words would mean where the premises which is used by any person privately for its own residence for a sufficiently continued period and not a premises where a person can come and spend a day or a night and then go back. The guest houses are maintained by company or commercial undertaking on the other hand as a part of its commercial venture and such premises by any stretch of imagination can be held to be meant for exclusive use as private residential premises. The Division Bench of the Bombay High Court in our considered opinion committed serious error in applying the test of profit making as well as the test of the word private ‘in contradiction1 to ‘public,’ which in our opinion have no relevance for interpreting the expression “exclusively used as a private residential premises”. The context in which the aforesaid expression has been used for determining tariff under the Act, can only apply when any premises is used as a private residential premises. The word ‘exclusively’ also must be given a rational meaning and viewed from that angle, we are of the considered opinion that the guesthouse maintained by a company or commercial undertaking in the cities cannot be held a premises which is exclusively used as private residential premises.
82. Finally Mr. Seervai referred to a judgment of our Court in Kishinchand v. Kalavati , wherein this Court has taken a view the words “residential use” as opposed to “non-residential use” must therefore be used not for education, business, trade or storage. Therefore the learned Counsel for the Petitioner’s submitted that the purported sanctions/permission granted for Respondent No. 5 to construct a separate independent building as a hotel is illegal, contrary to law and without authority of law and as such Court ought to quash and set aside the purported sanctions and permission. The Petitioners had also prayed that the said constructions which are in violation of Collector’s Rules, must be ordered to be demolished. In that behalf Mr. Seervai also relied upon M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and Ors. , wherein in paragraphs 73 and 74 the Apex Court has held as under:

73. The High Court has directed dismanting of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction if it is illegal and cannot be compounded, has to be demolished. There is no way out, Judicial discretion cannot be guided by expediency, Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. As will be seen in moulding the relief in the present case and allowing one of the blocks meant for parking to stand we have been guided by the obligatory duties of the Mahapalika to construct and maintain parking lots.
74. In the present case we find that the builder got an interim order from this Court and on the strength of that order got sanction of the plan from the Mahapalika and no objection from LDA. It has no doubt invested considerable amount on the construction which is 80% complete and by any standard is a first class construction. Why should the builder take such a risk when the interim order was specific that the builder will make construction at its own risk and will not claim any equity if the decision in the appeal goes against it? When the interim order was made by this Court the Mahapalika and the State Government were favouring the builder. As a matter of fact the Mahapalika itself filed appeals against the impugned judgment of the High Court. Perhaps that gave hope to the builder to go ahead with the construction and to take the risk of getting the construction demolished and restoring the park to its original condition at its own cost. The builder did not foresee the change in stand not only of the Mahapalika but also of the State Government. It also, as it would appear, overrated its capacity to manage with the State Government to change the land use of the park. The builder is not an innocent player in this murky deal when it was able to get the resolutions of the Mahapalika in its favour and the impugned agreement executed. Now, construction of shops will bring in more congestion and with that the area will get more polluted. Any commercial activity now in this unauthorised construction will put additional burden on the locality. The primary concern of the Court is to eliminate the negative impact, the underground shopping complex will have on the environmental conditions in the area and the congestion that will aggravate on account of increased traffic and people visiting the complex. There is no alternative to this except to dismantle the whole structure and restore the park to its original condition leaving a portion constructed for parking. We are aware that it may not be possible to restore the park fully to its original condition as many trees have been chopped off and it will take years for the trees now to be planted to grow. But a beginning has to be made.
83. In the light of the above judgments the learned Counsel Mr. Seervai submitted that all the illegal constructions must go and the land must be restored to its original position with the object of preserving Koregaon Park area as a wooded and green area.

84. In Writ Petition No. 1344 of 2000 as far as Plot No. 2 is concerned the proposal was to construct one main building and 5 other buildings with ground floor and one more storey and the No Objection Certificate was refused twice by the Collector and thereafter the Hon’ble Chief Minister in Appeal had revised the order passed by the Collector and in accordance therewith the Pune Municipal Corporation had granted the permission. However, even the said sanction by the Pune Municipal Corporation was revised three times and the third revision admittedly does not have Collector’s N.O.C. as well as sanction of the Hon’ble Chief Minister. Ex facie we find that the said constructions carried out on the said Plot No. 2 is violative of Collector’s Rules and as such whatever permissions which were granted are patently invalid in law and are liable to be quashed and set-aside. Accordingly we quash and set aside the same.

85. As far as Plot No. 19 is concerned in Writ Petition No. 1344 of 2000 the said construction is totally violative of Collector’s Rules inasmuch as a hotel is sought to be run on the said new construction which is a ground floor plus one storey and each floor having 8 rooms to be used as hotel rooms. This new main building which is sought to be used as a residential hotel is totally impermissible as per the Collector’s Rules, as it is a separate building from the main building connected by a pathway, Specially in view of the fact that the Development Control Rules applicable for Pune specially Appendix “M” 2.2.1 have been deleted with effect from 3rd October, 1996 and also w.e.f. 5.6.1997 the words “residential hotel” have been expressly deleted from Appendix “M” 2.56.1 the permissions granted cannot be sustained in law. Under these circumstances the sanctions which were granted to the concerned Respondent No. 5 were patently illegal and without any authority of law. It is to be noted that the new structure which has been put up by the said Respondent is not touching the main building also. Therefore, the said constructions which have been put up on the said Plot No. 19 by way of a hotel cannot be sustained as such the sanctions and permissions granted for the same are quashed and set aside.

86. As far as plot No. 27 In Writ Petition No. 1344 of 2000 is concerned what is proposed is four main buildings on the said plot which is ex-Jade impermissible as per the Collector’s Rules and the argument which is sought to be made that the said plot will be sub-divided in 1000 sq. metres each is also impermissible inasmuch as the Collector’s Rules as well as the Government’s notification issued subsequently makes it abundantly clear that the minimum size of the plot is 1 acre. Therefore, the said permissions granted for construction on the said plot No. 27 cannot be sustained in law hence the same stands quashed and set aside.

87. As far as Plot No. 35 in Writ Petition No. 1344 of 2000 is concerned the plans have been sanctioned for construction of four outhouses which all appear to be actually main buildings and in addition there are two more garages which have been sanctioned and these structures are proposed to be sold to different owners therefore, obviously the plot will be sub-divided, which is impermissible and in the guise of outhouses such constructions cannot be sustained in law as per Collector’s Rules, hence permissions granted therein are quashed and set aside.

88. As far as Plot No. 62 in Writ Petition No. 1344 of 2000 is concerned, on a single plot admeasuring 1.58 acres the concerned Respondent is seeking to put up four structures in the guise of outhouses wherein there is no main bungalow at all. Ex-facie this is contrary to Collector’s rules and not permissible hence the sanctions and permissions for construction of the said building is quashed and set aside.

89. As far as Plot No. 92-93, in Writ Petition No. 1344 of 2000 is concerned the main objection has been construction of a mezzanine floor which has been converted into rooms by putting up partitions. As clearly indicated in the definition of “Mezzanine Floor” as per Development Control Rules, the constructions put up therein by way of mezzanine floor cannot be sustained in law inasmuch as the definition in Development Control Rules makes it clear that Mezzanine Floor as an intermediate floor between two floor levels above ground level. On the contrary the Mezzanine floor which is sought to be erected is by way of a first floor which is totally impermissible as per Collector’s Rules. Mr. Mehta the learned Counsel appearing for the concerned Respondent No. 2 submitted that his clients are ready and willing to remove the said Mezzanine Floor if need be. In view of the above statement the said Mezzanine Floor should be removed within a period of three months from today and therefore no further orders are required in respect of this plot.

90. With regard to Plot No. 122/1 in Writ Petition No. 1344 of 2000 what is sought to be constructed is four main buildings of ground plus one storey. Each building has its own plinth and having independent access and completely self contained including a separate rooftop water tank for each of the building. The sanctions and permission for these buildings also are totally contrary to the Collector’s Rules hence the said sanctions and permissions are quashed and set-aside.

91. As far as Writ Petition No. 656 of 2000 is concerned the only issue which is argued is with regard to plots 7, 8 and 9 wherein Respondent No. 15 has erected an eye-hospital and a cardiac centre on the said plot. The main objection is with regard to the ancillary constructions by way of staff-quarters, utilising the additional F.S.I. granted. The challenge is that only 0.66 F.S.I, was permissible whereas for the said construction 2.0 F.S.I. has been utilised and the other challenge is that only ground plus single storey structure was permissible whereas here five upper floors have been constructed which is also impermissible. In this behalf it may be noted that the permission of grant of additional F.S.I. of 51000 sq.ft. was granted mainly for construction of staff quarters in the same premises so as to render proper medical services to the cardiac centre as well as the eye-hospital. In the instant case there are two buildings with ground plus five storeys and the commencement certificate was granted as early as in 1991 and ground plus four floors have already been constructed and completed. It may be noted here that this Court by its judgment delivered in Writ Petition No. 2157 of 1991 as well as in Writ Petition No. 1203 of 1985 had taken a view that In view of the laudable object of rendering public services by way of running a hospital by a well known Charitable Trust that too for a cardiac centre which would be highly beneficial to the members of the public and in public interest this being an important public utility service, erection of those hospital structures were allowed. Now additional F.S.I of 51000 sq.ft. has been granted to the concerned Respondent by utilising 2.0 F.S.I and the Respondent has erected the said staff quarters. Therefore, specially in the light of the judgments delivered by this Court in the earlier two writ petitions the said structures by way of an essential anciliary user will have to be permitted. Therefore, as far as these constructions are concerned we are not inclined to interfere. Another aspect to be noted is that the Petitioner has filed this petition challenging the constructions of staff quarters wherein for the first structure of staff quarters commencement certificate was granted as early as in 1991 and the present petition has been filed in the year 2000. Under these circumstances with regard to these structures on plot Nos. 7, 8 and 9 we are not inclined to interfere with the same. It may be also noted that B.E.A.G. which has been agitating with regard to other plots, did not choose to challenge the constructions on this plot, probably in view of larger pubic interest.

92. In Writ Petition No. 3691 of 2000 the first Petitioner who is the owner of Plot No. 2 was originally refused No Objection Certificate from the Collector, thereafter he had preferred an Appeal before the Hon’ble Chief Minister against the above order and by the Appellate order he was permitted to develop the said plot. As we have already held that these sanctions and permissions are totally impermissible and we have quashed and set aside the same in Writ Petition No. 1344 of 2000 as such the said first Petitioner is not entitled to any protection with regard to Plot No. 2. Petitioner Nos. 2, 3 and 4 are the owners of Plot No. 35 who were also granted originally permission by the Collector on 11.1.2000 which was under challenge in Writ Petition No. 1344 of 2000 wherein we have already quashed and set aside the sanctions and permissions as the same to be contrary to the Collector’s Rules. Similarly the Petitioner No. 5 in this petition who owns Plot No. 62 was granted permission by the Hon’ble Revenue Minister which permissions and sanctions are already quashed and set aside by our order in Writ Petition No. 1344 of 2000. Under these circumstances with regard to the above, in Writ Petition No. 1344 of 2000 all the permission and sanctions granted with regard to plot Nos. 2.35 and 62 have been already quashed and set aside. Therefore, this Writ Petition No. 3691 of 2000 stands dismissed.

93. With regard to Writ Petition No. 5710 of 1991 in respect of Plot Nos. 50-51 the Pune Municipal Corporation had sanctioned revised proposal by which four additional main buildings marked A. B, C and D first three buildings of stilt plus two upper storeys and last building with ground floor plus one storey was permitted. Therefore ex-facie the five main buildings viz. four additional main buildings and on existing one main building is totally contrary to the Collector’s Rules, Accordingly the permissions and sanctions granted for Pot No. 50-51 are quashed and set-aside. In respect of Plot No. 4 owned by the Respondents 10 and 11 the Pune Municipal Corporation had sanctioned a revised proposal vide Commencement Certificate No. 2711 by violating Rule 3 of the Collector’s Rule and by converting an attic into a liveable storey with 21 rooms, with a bath and toilet block. Therefore, the structures put up on Plot No. 4 cannot be sustained and the Commencement Certificate sanctioned by Pune Municipal Corporation is hereby quashed and set-aside.

94. In respect of Plot No. 57 which is owned by Respondents 7 and 7A the Pune Municipal Corporation had sanctioned four buildings having a basement ground and one storey having four duplex flats in each building which is also ex-facie violative of Collector’s Rules therefore the said sanctions in respect of this plot is quashed and set-aside.

95. In respect of Plot No. 88 wherein there was a sanction by Pune Municipal Corporation to construct four bungalows. However, only one bungalow has been constructed which construction commenced in June, 1987 and completed in 1988. No further constructions have been carried out except this one bungalow which was completed in 1988 and it is being used for personal use by all the family members as such we are not inclined to interfere with the said construction of the said single building. However, it is made clear that concerned Respondents cannot construct any more bungalows on the said Plot No. 88. Rule is accordingly made absolute in the above terms in Writ Petition No. 5710 of 1991.

96. With reference to Writ Petition No. 923 of 1992 involving the very same plots viz. Plot Nos. 50-51, 57, 88 and 4 involved In Writ Petition No. 5710 of 1991, which have already been dealt with by us as mentioned hereinabove, as such no further orders are needed to be passed. Hence Rule stands discharged.

97. With reference to Writ Petition No. 227 of 1992 wherein basically the challenge is to the order dated 30th April, 1991 whereby the Collector has cancelled No Objection Certificate granted on 7.1.1989 mainly because Plot Nos. 106 and 107 were amalgamated without seeking prior approval of the Collector. The Collector, however, has granted liberty to the Petitioners to approach the Collector’s Office after having obtained the necessary permission for such amalgamation. In view thereof, we are not interfering with the said order. Hence in Writ Petition No. 227 of 1992 Rule stands discharged.

98. Before parting with the matters, we must record our appreciation that all the learned Counsel in the above matters had taken great pains in making submissions and assisting the Court.

99. In the light of the above, we pass the following order:

In Writ Petition No. 1344 of 2000 Rule is made absolute in terms mentioned herein above.
Civil Application No. 2826 of 2000 in Writ Petition No. 1344 of 2000 is allowed in terms of prayer Clause (a).
In Civil Application No. 4750 of 2000 in Writ Petition No. 1344 of 2000, in view of the order passed in the main Writ Petition No. 1344 of 2000, nothing survives in this Civil Application hence stands dismissed as such.
Civil Application No. 1299 of 2001 in Writ Petition No. 1344 of 2000 for intervention is allowed in terms of prayer Clause (b).
In Civil Application No. 3945 of 2000 in Writ Petition No. 1344 of 2000, as the draft Development Plan was produced by an Additional Advocate General during the final hearing, therefore, there is no need for any orders on this Civil Application and the Civil Application stands dismissed.
Civil Application No. 447 of 2001 in Writ Petition No. 1344 of 2000 is allowed in terms of prayer Clause (A).
In Writ Petition No. 656 of 2000 Rule stands discharged.
Civil Application No. 2878 of 2000 in Writ Petition No. 656 of 2000 is allowed in terms of prayer Clause (a).
Civil Application No. 3944 of 2000 in Writ Petition No. 656 of 2000 does not survive in view of the order passed in the main Writ Petition.
Civil Application No. 4849 of 2000 in Writ Petition No. 656 of 2000 does not survive in view of the order passed in main petition.
Writ Petition No. 3691 of 2000 does not survive in view of the order passed in Writ Petition No. 1344 of 2000 hence stands dismissed.
In Writ Petition No. 5710 of 1991 Rule is made absolute in the terms mentioned herein above.
In view of the order passed in Writ Petition No. 5710 of 1991 wherein same plots are involved in Writ Petition No. 923 of 1992, nothing further survives In Writ Petition No. 923 of 1992 hence rule stands discharged.
In Writ Petition No. 227 of 1992, since we are not inclined to interfere with the impugned order of the Collector, the rule stands discharged.
100. After the judgment was pronounced, Counsel for Respondent Nos. 4, 5, 6, 7, 8, 9, 10, 11 and 13 in Writ Petition No. 1344 of 2000, and some of the Petitioners and Respondents in the other Writ Petitions prayed that the operative part of the judgment and order may be stayed for some time to enable the parties to seek appropriate remedy in accordance with law. Having regard to the facts and circumstances of the case, we direct that the Pune Municipal Corporation shall not take any action pursuant to the Judgment and Order of this Court for a period of 8 weeks from today. The applicants, who have prayed for stay, assure the Court that if a Special Leave Petition is filed before the Supreme Court, a copy thereof will be served on the Attorneys for the Bombay Environmental Action Group, viz., M/s. Federal & Rashmikant, well in advance to obviate the filing of several caveats before the Supreme Court.

101. Personal Assistant to issue an ordinary copy of the order to the parties.

102. Issuance of certified copy is expedited.