Bombay High Court

SEAVIEW RESIDENCY COOPERATIVE HOUSING SOCIETY LTD.versusSANDEEP S. THAKUR

Decided: 1 October 2026
Disposal: Disposed Off

Holding

The non obstante clause in Regulation 10 of the UDCPR must be read harmoniously with the other provisions of the UDCPR and applies only in case of conflict, and Regulation 2.4 permits the planning authority to grant case-to-case relaxation allowing ROS to be provided on the podium, open to sky, without violating health, fire, structural or public safety norms.

Summary

The petitioner, a Navi Mumbai resident, filed a PIL under Article 226 seeking a writ of mandamus to quash development permissions granted by the State of Maharashtra and the Navi Mumbai Municipal Corporation (NMMC) to Respondent Nos. 3 to 7 co-operative housing societies, contending that Regulation 10.10.2(3)(vi) of the Unified Development Control and Promotion Regulations, 2020 (UDCPR) mandates compulsory recreational open space (ROS) on the ground, clearly open to sky, over and above podium garden, and that the non obstante clause in Regulation 10 overrides all other UDCPR regulations. The respondents contended that planning constraints (height restrictions due to proximity to the airport, road setback surrender, mandatory rehabilitation tenements and parking requirements) justified the grant of relaxation under Regulation 2.4 permitting ROS on the podium, and that the societies had in fact provided more ROS than the minimum required. The Court held that the non obstante clause in Regulation 10 must be read harmoniously and applies only where a Chapter 10 provision conflicts with another UDCPR provision, and that Regulation 2.4 discretionary relaxation remains applicable. It further held that the definition of ROS does not require it to be on natural ground or mother earth, and that Regulation 10.10.2(3)(vi) applies to condominiums/plot areas and not to co-operative housing societies. The Court found no perversity in the planning authority's exercise of discretion under Regulation 2.4 and no factual foundation for the petitioner's claim that residents would crowd public open spaces. The petition was also found to suffer from delay and laches and to be vague and lacking bona fides. The petition was dismissed and the interim application disposed of.

Issues considered

Whether the non obstante clause in Regulation 10 of the UDCPR overrides all other regulations, including Regulations 2.4, 3.4.1, 3.4.7 and 9.13, so as to mandatorily require compulsory ROS on ground clearly open to sky over and above podium garden under Regulation 10.10.2(3)(vi).
Whether the grant of concession by NMMC permitting ROS at podium level under Regulation 2.4 is permissible in law.
Whether Regulation 10.10.2(3)(vi) applies to co-operative housing societies or only to condominiums/plot areas.
Whether the petition suffers from delay and laches and is maintainable as a public interest litigation.

Legislation cited

Bombay High Court Public Interest Litigation Rules, 2010 — s. 5(a)
Constitution of India — s. 226
Maharashtra Municipal Corporations Act, 1949 — s. 253, 254
Maharashtra Regional and Town Planning Act, 1966 — s. 45
Unified Development Control and Promotion Regulations, 2020 (UDCPR) — s. 10, 10.10.2, 10.10.2.2(A), 10.10.2(3)(vi), 10.10.3, 1.1, 1.3(103), 1.3(76), 2.4, 3.4, 3.4.1, 3.4.1(iii), 3.4.7, 9.13

Subjects

UDCPR
recreational open space
podium garden
non obstante clause
harmonious construction
discretionary powers
redevelopment
CIDCO/NMMC
public interest litigation
delay and laches
town planning
development control regulations

Judgment

apn/sns 60-pil-26-2024 J 27-9-26.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

PUBLIC INTEREST LITIGATION NO.26 OF 2024

Sandeep S. Thakur
Aged: 73 years, Occ: Social Active
Indian Inhabitant residing at F8/RH6/
Sector 6, Vashi, Navi Mumbai, 400703. … Petitioner

V/s.

1. State of Maharashtra
Through it’s Urban Development
Department, Through the
Government Pleader High Court
Bombay.

2. Navi Mumbai Municipal
Corporation, having it’s Head
Quarters at CBD Belapur, Navi
Mumbai, 400 614.

3. Sagar Co-operative Housing
Society Ltd., Condominium No.8,
Sector 10, Kopar Khairne, Navi
Mumbai.

4. Seaview Residency Cooperative
Housing Society Ltd., Plot No.3,
Condominium No.3, Sector 6,
Vashi Navi Mumbai.

5. Shraddha Cooperative Housing
Society Limited Condominium No.10
Building No.22 to 44, Plot No.10,
Sector 10, Vashi, Navi Mumbai.

6. Ekta Cooperative Housing
Society Limited, Condominium No.5,
Building Nos.1 to 18, Plot No.5,
Sector 9, Vashi, Navi Mumbai.

Digitally
signed by
SUMEDH
1/33
SUMEDH NAMDEO
NAMDEO SONAWANE
SONAWANE Date:
2026.10.01
15:15:04
+0530
apn/sns 60-pil-26-2024 J 27-9-26.doc

7. Kailas Shikhar Cooperative
Housing Society Ltd., Condominium No.8,
Building No.19 to 45, Plot No.8,
Sector 9, Vashi, Navi Mumbai. … Respondents

WITH
INTERIM APPLICATION NO.4772 OF 2026
IN
PUBLIC INTEREST LITIGATION NO.26 OF 2024

______________________________________

Mr. Sandeep S. Thakur, Petitioner in person present.
Mr. O.A. Chandurkar, Addl. G.P. a/w Ms. R.A. Salunkhe, A.G.P. for the
Respondent-State.
Mr. Tejas Dande a/w Mr. Bharat Gadhavi, Mr. Parth Talekar for the
Respondent No.2-NMMC.
Mr. Saket Mone a/w Mr. Shrey Shah, Ms. Mitali Dhoble i/b Vidhii Partners
for the Respondent No.3.
Mr. Girish Godbole, Senior Advocate a/w Ms. Aneesa Cheema, Mr. Parag
Kabadi, Ms. Vidhi Porwal, Ms. Anshita Sethi i/b DSK Legal for the
Respondent No.4.
Mr. Chetan Kapadia, Senior Advocate a/w Mr. H.K. Sudhakara i/b HKS
Legal for the Respondent No.5.
Mr. Rahul Sarda i/b Ms. Virakthi Hegde for the Respondent No.6.
Mr. Chetan Kapadia, Senior Advocate i/b Ms. Atithi Abhay for the
Respondent No.7.
_____________________________________________

CORAM : A. S. GADKARI AND
KAMAL KHATA, JJ.
RESERVED ON : 6th July, 2026.
PRONOUNCED ON : 1st October, 2026.

Judgment (Per : Kamal Khata, J) :-

1) By this Petition under Article 226 of the Constitution of India,

the Petitioner seeks a writ of Mandamus, directing the Respondent Nos.1 &

2 to quash and set aside the development permissions issued by them to

2/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

Respondent Nos. 3 to 7.

2) The Petitioner is an Indian citizen residing at Navi Mumbai

since 1980. He retired in 2019 as a Vice-President in a multinational British

Company and is now involved in taking up social causes concerning Navi

Mumbai. He claims to have been a member of the Advisory Committee

formed by the Navi Mumbai Municipal Corporation (‘NMMC’) and that his

work has been appreciated by this Court in several cases.

3) The present Petition concerns providing open-to-sky

Recreational Open Spaces (‘ROS’) as per the Unified Development Control

and Promotion Regulations, 2020 (‘UDCPR’).

Petitioner’s submissions:

4) Mr. Sandeep Thakur, appearing in person, referring to the

various provisions of the UDCPR, submits that, the provisions contained in

Regulation 10 override all other regulations in the UDCPR, including

Regulation 3.4, in view of the non obstante clause contained therein.

According to him, the reconstruction/redevelopment of buildings in

CIDCO/ NMMC areas which include buildings constructed by CIDCO but

subsequently destroyed by natural calamities or accidental fire or which

have collapsed due to age or are demolished or being demolished under

lawful order of the Municipal Commissioner etc. is required to be carried

out as per the provisions of Regulation 10.10.2 of the UDCPR.

3/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

5) He submits that, Regulation 10.10.2, read with Clause 3 and

sub-clause (vi), requires that, in a condominium/plot area, a minimum of

10 or 15%, as the case may be, is required to be kept as compulsory ROS on

ground, clearly open-to-sky, over and above podium garden, in the

proposed redevelopment project, in respect of land area between 2500

square meters to 4000 square meters or more than 4000 square meters

respectively. However, NMMC has granted surplus benefits to the

Developers by permitting them to refrain from providing 15% of the plot

area as ROS on the ground, clearly open-to-sky, in addition to the podium

gardens, for extraneous reasons. According to him, granting such a

concession from a mandatory provision under the Regulations governing

development of NMMC is impermissible in law.

6) He submitted that his RTI Application seeking information was

evaded with a vague reply dated 26 th December 2023, stating that the

questions did not fall under the definition of ‘information’. Instead, a

tabulated list of development permissions issued to twelve Developers was

provided. Table 1 listing Developers with a plot area of over 1000 square

meters and Table 2 listing Developers with a plot area of about 4000 square

meters. The information provided did not include the crucial list of

Developers with plot area between 2500 to 4000 square meters. Dissatisfied

with the response, he filed an Appeal, pursuant to which the PIO furnished

information disclosing that NMMC had mandated only two of the seven

4/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

plot-holders to provide ROS under Regulation 10.10.2, while the remaining

namely, Respondent Nos.3 to 7 were granted a concession permitting them

to provide ROS as per Regulation 3.4.1.

7) According to him, granting such concessions would leave

residents of plots without adequate open-to-sky ROS of their own,

compelling them to rely on public ROS in the vicinity. This, he submits,

would increase footfall in such public ROS and disturb the orderly town

planning contemplated under the UDCPR. It is in these circumstances, and

for seeking a direction for withdrawal of the concessions granted to

Respondent Nos 3 to 7, that he has filed the present Public Interest

Litigation.

Respondents submissions:

8) By Mr. Godbole, learned Senior Counsel appearing for the

Respondent No. 4 society, submitted that in 1975, CIDCO constructed

sixteen buildings consisting of ground plus 2 upper floors totaling to 288

apartments with areas of 16.9 square meters, 17.3 square meters and 18.5

square meters. These buildings were declared dilapidated on 19th June

2019 and were required to be redeveloped. NMMC sanctioned a plan for 3

wings A, B and C, comprising of total 314 units, including rehab, sale, and

CIDCO/NMMC units. The following permissions were received:

1. Letter of Intent (LoI) dated 6th July 2022

5/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

2. Environmental Clearance (EC) dated 30th August 2022

3. Full Commencement Certificate (CC) dated 25th January 2023

4. Revised CC dated 14th August, 2023

5. Completion Certificate issued by architect for wings A and B dated

11th June, 2026 and

9) The current status is as under.

1. For wings A and B (comprising of 67 units each, of which three

units are for rehabilitation), RCC work is completed and interior work

is in progress.

2. For wing C, comprising of 314 units, of which 285 units are for

rehabilitation and the balance 29 units are for CIDCO and NMMC,

construction is complete in all respects and application for obtaining

Occupation Certificate (OC) will be made upon obtaining various

NOCs from CIDCO and NMMC.

10) Mr. Godbole submits that, owing to the planning constraints, it

was not possible to provide the entire ROS on ground and an application

for exercise of discretion under Regulation 2.4 for grant of relaxation was

made, explaining the following planning constraints:

1. The height of the new buildings had to be restricted to 130 meters.

2. A road setback of 124.087 square meters was required to be

surrendered to NMMC free of cost, reducing the ground coverage.

3. Rehabilitation tenements for the original 288 members, with

6/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

minimum carpet area of 300 square feet (Regulation 10.10.2.2(A)),

were mandatory. In addition, 29 units were to be constructed for

CIDCO/NMMC.

4. Parking Spaces for two-wheelers and four-wheelers for 449 units

was to be constructed under UDCPR (696 four-wheeler parking spaces

plus 519 two-wheeler parking spaces).

11) Mr. Godbole submitted that 15% of the net land area of

7428.853 square meters works out to about 1114.328 square meters, which

was required to be provided as ROS. He submits that a higher area of ROS

is presently provided, an area of 1264.693 square meters on the 6 th floor

podium level and an area of 146.118 square meters on the ground floor.

Additionally, a clubhouse (a permitted amenity within ROS) of 317.509

square meters (ground plus one floor) is provided. In addition to the above,

an area of 468.81 square meters is provided on mother earth in the form of

1.5-meter-wide strip. This is in consonance with Regulation 3.4.1 (iii) read

with Regulation 2.4 and Regulation 10.10.2(iii)(vi). In the present case, the

relaxation sort was only for fragmenting the RG area, and not to reduce the

RG area to be provided under the UDCPR. He submitted that a perusal of

the sanctioned plan as well as the EC certificate, shows that the required RG

area under the UDCPR has been provided.

12) He submitted that, the PIL essentially challenges the

development permissions granted purportedly in violation of Regulation

7/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

10.10.2 Clause (3) sub-clause (vi) of the UDCPR namely, that permitting

compulsory ROS on podium would allegedly cause crowding in public

places, violating the public interest. He submitted that this contention is a

bare allegation with no factual foundation and the assertion that occupants

of the project would crowd public open spaces if ROS is not provided on

mother earth is entirely baseless.

13) Referring to the Petitioner’s contention that, Regulation

10.10.2 (iii)(vi) contains a non obstante clause and thus overrides all other

UDCPR Regulations, including Regulations 2.4, 3.4.1, 3.4.7 and 9.13, Mr.

Godbole submitted that, this contention is wholly meritless. He submitted

that if Regulation 2.4 were held inapplicable on account of the non obstante

clause, the entirety of Chapter 10 would become unworkable. The word

“notwithstanding” in Regulation 10 cannot be read as excluding all other

provisions of the UDCPR. Instead, it must be read for harmonious

construction of the Regulations, applying only where a provision in Chapter

10 conflicts with another provision of the UDCPR. He referred to the

decision of the Supreme Court in the case of Mohd. Abdul Samad Vs. State

of Telangana & Another reported in (2025) 2 SCC 49 paragraphs 81 to 87.

14) Mr. Godbole further submitted that, Regulation 10.10.2 (iii)

(vi) must be read harmoniously with the other provisions of Chapter 10.

The only inconsistency between Regulation 3.4.1(iii) and 10.10.2 (iii)(vi) is

that, in non-CIDCO areas, ROS is required if land is less than 4000 square

8/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

meters, with only 10% required for land of area 4000 square meters,

whereas in CIDCO areas 10% is required once land exceeds 2500 square

meters, rising to 15%, once it exceeds 4000 square meters. Thus, the non

obstante clause bears only this restricted meaning, as explained by the

Hon’ble Supreme Court.

15) He submitted that, discretion conferred by Regulation 2.4 of

UDCPR must be exercised on a case-to-case basis. The crucial words ‘over

and above podium garden’ have to be read in context: once so read, the

intention of subordinate legislation is clear where a larger ROS is mandated

and has to be provided on podium, the minimum required ROS must be

“clearly open to sky” even where it is on “ground over and above podium

ground”. Thus, when Regulations 3.4.1(iii), 3.4.7 and 9.13 are read

together, they already provide for 100% ROS to be provided on podium,

provided that it is entirely open to sky. Therefore, a holistic reading of

Regulations 10.10.2 (iii)(vi), 9.13 , 3.4.1 (iii) and 3.4.7 together with

Regulation 1.3 (103) makes it evident that, the words “over and above

podium garden” permit the entire ROS to be provided on the podium,

subject to a podium garden also being provided. He placed reliance on the

decision in the case of Vijay Shantaram Mandavkar and Others Vs. State of

Maharashtra and others reported in (2015) 3 Mah LJ 198 , where,

interpreting Regulation 64 of DCR 1991, the Division Bench held that in a

redevelopment project where rehabilitation tenements are to be provided

9/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

free of cost, developer is required to construct a much larger area and open

space will necessarily be less than it would be under the normal Regulation

with 1.33 FSI. In that case, the Division Bench distinguished the earlier

judgment in case of Rajendra Thacker & Others Vs. Municipal Corporation

of Greater Mumbai & Others reported in 2004 SCC OnLine Bom 401.

16) With regard to the reliance placed by the Petitioner on Order

dated 13th September 2022 passed by the National Green Tribunal (NGT),

Mr. Godbole submitted that, the Environmental Clearance for

redevelopment of the said land was issued on 30th August 2022, and the

said order would therefore have no application in the present case.

According to him the NGT’s Order dated 13th September 2022, cannot

apply retrospectively and would not apply to the redevelopment of the

lands of Respondent No. 4. He further argued that reliance placed on the

judgment of the Hon’ble Supreme Court in Municipal Corporation of

Greater Mumbai and Others Vs. Kohinoor CTNL Infrastructure Private

limited & Another reported in (2014) 4 SCC 538, was misplaced, since that

case concerned a conflict between two provisions, whereas once the

subordinate legislation, the UDCPR, has intervened, the said judgment

cannot, according to him, be held applicable to the present case.

17) In view of the aforesaid Mr. Godbole submitted that, the

provisions of UDCPR have to be read harmoniously and not in

contravention of one another. He submitted that, the word

10/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

‘notwithstanding’ in Chapter 10, which is a City Specific Regulation, cannot

be read to exclude the application of the general Regulations contained in

Chapters 1, 2 and 3. That, the general provisions of the UDCPR continue to

apply even to City Specific Development under Chapter 10, to the extent

that those Regulations are not in contravention of one another. That the

Petitioner had failed to demonstrate any contravention in the application of

Regulations 2.4 and 3.4 to the development in case of NMMC/CIDCO area.

He further submitted that, the Petitioner had failed to demonstrate any

perversity in the exercise of powers under Regulation 2.4 by a planning

authority, which is an executive function, such as would warrant any

intervention by this Hon’ble Court. He accordingly submitted that, the

present Petition ought to be dismissed.

18) Mr. Godbole submitted that, the Petition also suffers from delay

and latches. The Respondent No. 4 had obtained an LoI on 6th July 2022,

Environmental Clearance on 30th August 2020, a Commencement

Certificate on 25th January 2023 and a Revised Commencement Certificate

was issued on 14th August 2023 and substantial construction, including

excavation had taken place before the filing of the Petition on 13th

February 2024. He relied upon the decision of the Court in PIL No. 24 of

2019 to submit that, a similar Petition filed by the same Petitioner was

dismissed, with observations in paragraph 11 to 13 therein stating that the

averments in the PIL were vague and was hit by delay and latches. The

11/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

Court also held that the need for environment protection must be weighed

against the legitimate needs of the community at large, and that the Court

cannot overlook the serious prejudice that would be caused to the home

buyers. It further held that, in the absence of any public interest, the

Petition deserves dismissal with costs.

19) Mr. Kapadia, learned senior counsel appearing on behalf of

Respondent Nos. 5 to 7 submitted that, he adopts the arguments of

Mr. Gobdole. He submitted that, the foundation of the Petition was on the

contention that, the ROS/recreational ground is required to be provided on

mother earth and is impermissible on the podium. He submitted that, it is

therefore, not the case of the Petitioner that, no ROS has been provided in

the redevelopment project, but that the grievance is that such ROS has not

been provided on the ground.

20) Mr. Kapadia submitted that, the Petition does not raise any

matter of public interest. According to him, any alleged public interest is

remote, indirect and minimal as compared to the direct and substantial

interest of the members of the Respondent Nos. 5 to 7 in completion of

their homes. He submitted that, if the orders sought by the Petitioner were

passed they would result in a huge human cost to the members of

Respondent Nos. 5 to 7, without any direct benefit to the public interest

purportedly espoused by the Petitioner. He submitted that the contention

that, residents of Respondent Nos. 5 to 7 would have no recourse but to

12/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

flock to the already overburdened public ROS nearby, thereby affecting the

quality of life of innocent ordinary citizens in the area, if ROS is not

provided on the ground, is wholly unsubstantiated and has no basis in

either law or fact. He submitted that the description/definition of ROS

contains no reference to natural ground, mother earth, virgin soil, or at

grade location and no prohibition against provision on the podium. Such a

qualification, not being statutorily prescribed, cannot be read into or freshly

introduced or deemed to be included in the description/definition of ROS.

He submitted that where a statute or a set of regulations contains two

different definitions or similar expressions, the settled rule is that the

legislature is presumed to have intended different meanings and Courts

ought not to treat the expressions as interchangeable unless the statutory

context compels it.

He submitted that, the UDCPR confers discretionary powers

enabling relaxation in specific cases, as provided under Regulation 2.4,

which applies to all provisions of the UDCPR.

21) Mr. Kapadia submitted that, the grant of concession does not,

in law, amount to a grant of exemption and that the grant of concession is a

necessary ingredient of a planning discretion. He further submitted that, the

principle of harmonious construction requires that full effect be given to all

the provisions to the extent possible, and that there was no dilution of

public interest as a result of the grant of concession to Respondent Nos. 5 to

13/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

7 societies.

22) He submitted that, the grant of concession in the present case

is the result of a reasoned, considered and necessary exercise. According to

him, the grant of concession to provide ROS at the podium level was

intended to ensure compliance with the requirement of providing open

spaces in a redeveloped plot, and was not in violation of any health, safety,

fire safety, structural safety or public safety requirement affecting the

inhabitants of the buildings or the neighborhood. Read in totality, the grant

of concession was not an act beyond jurisdiction. He submitted that

Regulation 10.10.2(iii)(vi) applies only condominiums and not to

cooperative housing societies, and would therefore not apply in the present

case, as Respondent Nos. 5 to 7 are cooperative housing societies and not

condominiums.

23) Mr. Kapadia submitted that, the members of Respondent Nos. 5

to 7 belong to the lower-income group/economically weaker section and

could not afford to either shift to different residential houses or undertake

reconstruction/repairs. He submitted that although the buildings were

declared unfit for habitation as far back as 1997, no redevelopment could

be undertaken for want of viability. The buildings were declared as

dangerous and placed under C-1 category as far back as 2017 and it was

only after the introduction of UDCPR that the redevelopment was possible.

He accordingly submitted that the Petition itself was delayed and ought to

14/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

be dismissed on the ground of delay in latches, and for want of bona fides.

He relied upon the decision in R & M Trust Vs. Koramangala Residents

Vigilance Group and Others reported in (2005) 3 SCC 91 where the

Supreme Court refused to grant relief in a PIL in which building

construction was substantially complete, on the ground that the PIL

Petitioner’s delay had caused substantial third-party rights to be created in

the meantime. He submitted that, the Petitioner has selectively targeted

Respondent Nos. 3 to 7 societies and has not prayed for cancellation of all

permissions granted by applying Chapter 3 of UDCPR within the municipal

limits of NMMC. In support of his above contentions, Mr. Kapadia placed

reliance on the following judgments:

1. P. Kasilingam and Others Vs. P.S.G. College of Technology and

Others reported in 1995 Supp (2) SCC 348

2. Board of Revenue Vs. Arthur Paul Benthall reported in (1955) 2

SCC 195

3. Sultana Begum Vs. Prem Chand Jain reported in (1997) 1 SCC

373

4. Pandurang D. Chalke and Another Vs. NGO Alliance for

Governance and Renewal (NAGAR) and Others reported in

2025 SCC OnLine Bom 2425

24) He accordingly submitted that, the Petition deserves to be

dismissed.

15/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

25) Mr. Mone appearing for Respondent No. 3 society also adopted

the arguments of Mr. Godbole and Mr. Kapadia. He drew the Court’s

attention to the facts of his case. He submitted that, the building of

Respondent No 3 Society was constructed in 1990 under mass housing

scheme called Demand Registration Scheme (DRS-87), and flats were

allotted to members by draw of lots. Under the scheme, CIDCO constructed

47 buildings consisting of 188 residential tenements with a built-up area of

8724.74 square meters. Over time, the condition of the buildings

deteriorated, and on 30th September 2019, the buildings were declared

dangerous by NMMC/Respondent No. 2. The Respondent No. 3 society

accordingly decided to re-develop its buildings. He submitted that, the plot

area of Respondent No 3 society is 8166.38 square meters. The NMMC has

issued an amended Commencement Certificate, having sanctioned the plans

submitted by the developer on 12th March 2024, in accordance with

Regulation 10.10.2 of the UDCPR, read with Section 253 and 254 of the

Maharashtra Municipal Corporations Act, 1949 (MMC Act) and Section 45

of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act). The

15% RG comes to 1,224.957 square meters. However, the Respondent No.3

society has provided 1,275.17 square meters on the ground level, open to

sky. Additionally, Respondent No.3 society has also provided 2,503.229

square meters of RG on the 4th floor of the new building. The total RG

provided is thus 3,778.399 square meters.

16/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

26) Mr. Mone submitted that, various factors affect these societies

in carrying out the redevelopment under the existing framework of the

UDCPR, rendering the project unviable from both, a commercial and a

planning perspective. Various factors including height restrictions arising

from proximity to Navi Mumbai International Airport, and mandatory

parking requirements under the UDCPR, which result in an oddly sized and

shaped parking floor consequent planning constraints. According to him,

several other societies face similar hardships in carrying out redevelopment

work under the existing framework of the UDCPR. In view of these

hardships, Respondent No.3 society, through its architect, addressed a letter

dated 1st March 2024 to NMMC/Respondent No.2, seeking relaxation of

certain DC regulations for the purpose of providing RG on ground. The

Municipal Commissioner of NMMC considered representation and,

exercising powers under Regulation 2.4 without compromising public or

neighborhood safety, granted relaxation for RG being provided on the

ground. This exercise of power by the Municipal Commissioner was

reasonable and facilitated the smooth implementation of redevelopment

project without compromising any safety concern. There is no averment in

the Petition of arbitrariness on the part of the Municipal Commissioner in

exercising this power. The discretion exercised was accordingly reasonable

and requires no interference. He relied on the factual aspects by three

tables which are extracted hereinbelow for ready reference.

17/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

“11. The Developer has, till date, spent approximately 225 crores on the
redevelopment project which also involves construction of around 188 flats for
rehabilitation of members of Respondent No.3 Society. The existing 188
members of Respondent No.3-Society are eagerly waiting for their redeveloped
houses to accommodate their respective families. The status of construction as
on date is as follows :

Project Name: The Trellis
Redevelopment of Sagar Co-operative Housing Society Limited
Condominium no.8, Sector-10, Koparkhairane, Navi Mumbai-400709

Proposed Construction Stage

Wing A G+25 26th Slab (Terrace) Completed RCC Structure
Completed
Walls, Internal Plaster, Staircase,
Painting in
Lift Well Structures completed
process
Wing B G+25 26th Slab (Terrace) Completed
Walls, Internal Plaster, Staircase,
Lift Well Structures completed
Podium G+4 4th Completed

12. The details of the existing old carpet areas of members and the RERA
carpet areas of new flats is enumerated in a table below :
Table – Existing Old Carpet areas of members and New Flats RERA Carpet
areas
Sr. Type No. of Existing New Flat
No. Tenements Flat RERA
Carpet Carpet area
Area (sq. (sq. ft.)
ft.)
1. Type C – With 66 343 740
Courtyard/ Terrace
2. Type C 31 343 647
3. Type C1 12 348 655
4. Type C1 – With 12 348 746
Courtyard/ Terrace
5. Type D 35 370 694
6. Type D1 3 376 705
7. Type E – With 16 472 969
Courtyard/ Terrace
8. Type F- With Courtyard/ 13 672 1269

18/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

Terrace
Total 188

13. The list of permissions obtained by Respondent No.3 are as follows :
Sr. No. Particulars of Permission Date
1. Aviation NOC (1st ) 30.12.2019
2. Fire NOC (1st ) 20.07.2022
3. Environment Clearance 23.02.2023
4. Commencement Certificate 29.03.2023
5. Amended CC (1st ) 12.03.2024
6. Aviation NOC (2nd ) 07.11.2025
7. Fire NOC (2nd ) 21.01.2026
8. Amended CC (2nd ) 06.05.2026

14. The details about the “Third Party Rights” created as on date are as
follows :
No. of units Sold & Sold & not
Registered Registered
Society Rehab 188 188
CIDCO/NMMC 14 Authority
Amenity NMMC 1 Authority
Developers Units
Residence 215 105 9
Shop 14 7 7
Total 432 300 16

Note : Out of 432 nos. of units in the project, 316
units have been booked/sold registered/owned
by Authority

27) Mr. Mone submitted that, the present PIL is not bona fide and

that it is in truth, a “publicity interest litigation”. He submitted that the

Petitioner has failed to show any public interest involved in the present

Public Interest Litigation or any violation of any law, legal injury or harm

caused to the public. He submitted that, there was no causal connection

with the redevelopment of Respondent No.3- society and the Petitioner,

19/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

who was a rank third party and that no benefit would accrue to the public

even if the prayer sought in the present petition were granted. On the other

hand, the members of Respondent No. 3 society would be grossly impacted.

He submitted that, none of the members of Respondent No. 3 society have

any complaint in respect of the work done by the developer for the present

redevelopment. He finally submitted that, the Petitioner has adopted a pick-

and-choose policy and has targeted only certain societies and

redevelopments, an approach that has been strongly deprecated by the

Court time and again. He submitted that, Respondent No. 3 society has

executed a registered Development Agreement with one Maithli Builders

Private Limited on 20th June 2022. The members of Respondent No.3

society vacated their existing premises in August 2022, and the existing

buildings of Respondent No. 3 society were demolished between September

to December 2022. Various permissions have since been obtained and the

redevelopment work has commenced and is proceeding in full swing. The

parties have therefore altered their position. The present Petition filed only

on 12th February 2024, has thus been filed after a gross and unexplained

delay and latches. He submitted that, the present Public Interest Litigation

is also not in conformity with the Bombay High Court Public Interest

Litigation Rules, 2010 inasmuch as the Petitioner has failed to disclose his

annual income and PAN number as required under Rule 5(a). In view of the

above, he submitted that, the Petitioner deserves to be dismissed with cost.

20/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

28) Mr. O. A. Chandurkar, learned AGP for the State, Mr. Tejas

Dande, learned Advocate for Respondent No.2-NMMC and Mr. Rahul Sarda,

learned Advocate for Respondent No.6 adopted the arguments of Mr.

Godbole, Mr. Kapadia and Mr. Mone and opposed to the Petition.

29) We have heard the Petitioner as well as learned Counsel for all

the Respondents and have carefully perused the record.

Analysis and Conclusion:

30) At the outset, the Petitioner’s concern appears to reflect a

genuine public interest. The underlying intent being to caution the

architects, developers and the planning Authorities against misusing their

knowledge and professional expertise to flout mandatory provisions and

thereby unjustifiably secure concessions that defeat the legislature’s intent

of planned city development, and to warn them that such conduct will not

go unnoticed and that those responsible will be held accountable.

31) In brief, the concern of the Petitioner is that the NMMC has

permitted the mandatory open-to-sky ROS at the ‘podium level’ rather than

the ‘ground level’ for a certain category of redevelopment projects, resulting

in residents of those projects being compelled to utilize the public ROS,

thereby increasing the footfall therein and upsetting the planned

development / redevelopment of the areas under the UDCPR.

32) It would be appropriate and necessary to consider applicable

provisions of the UDCPR in this regard.

21/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

33) By Notification No.TPS-1818/C.R.236/18/DP and

RP/Sec.37(1AA)(c) & Sec.20(4)/(UD-13), dated 2.12.2020, Respondent

No.1 sanctioned Development Control Regulations called UDCPR,

applicable to all building activities and development works on land within

the jurisdiction of the Planning Authorities and Regional Plan areas in

Maharashtra, except as excepted under Regulation 1.1. For ready reference,

the relevant provisions or portions or explanations are set out hereinbelow:

a) Regulation 1.1 Extent and Jurisdiction

i) These regulations shall apply to the building activities
and development works on lands within the jurisdiction of all
Planning Authorities and Regional Plan areas, except Municipal
Corporation of Greater Mumbai, other Planning Authorities
/Special Planning Authorities /Development Authorities within
the limits of the Municipal Corporation of Greater Mumbai,
MIDC, NAINA, Jawaharlal Nehru Port Trust, Hill Station
Municipal Councils, Chikhaldara notified area (comprising of
Chikhaldara Hill Station MC and four villages) Eco-sensitive
/Eco-fragile region notified by MoEF and CC, and Lonavala
Municipal Council in Maharashtra.
ii) These Regulations shall also be applicable to the Town
Planning Scheme area. However this will not bar the
Development Permission to be granted as per the Regulations
of the Town Planning Scheme in toto.
Accordingly, the lands under the jurisdiction of NMMC are governed
by the provisions of said UDCPR's from 2nd December 2020.
b) Chapter 10 contains City Specific Regulations. Regulation 10

22/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

reads as under:

"Notwithstanding anything contained in these Regulations,

following City / Authority specific Regulations shall be applicable to

respective Planning Authorities/Areas. "

c) Regulation 10.10.2 provides for the reconstruction /

redevelopment of buildings in CIDCO/NMMC areas, Regulation

10.10.3 concerns ‘Other requirements / Criteria and Regulation

10.10.2(3)(vi) in particular provides that:

“In a condominium/plot area, it shall be mandatory to keep

minimum 10% or 15%, as the case may be, compulsory recreational

open space on ground clearly open to sky over and above podium

garden, in the proposed redevelopment project in respect of land area

between 2500 sq.mt. to 4000 sq.mt. or more than 4000 sq.mt.,

respectively.”

In our view this means that in a plot area measuring 2,500 sq.

mt. a minimum of 10% which is 250 sq.mt. is mandated, whereas in

a plot area measuring 4,000 sq.mt. a minimum of 15% which is 600

sq.mt. is mandated as recreational open space ‘on the ground’,

‘clearly open-to-sky’ and ‘over and above podium garden’.

d) Chapter 3 of the UDCPR deals with the “General Land

Development Requirements” and Regulation 3.4 specifically deals

with the general requirements of Recreational Open Spaces (ROS) to

23/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

be provided while carrying out any development on any land. Under

Regulation 3.4.1, for areas more than 0.40 ha., 10% shall be ROS

which shall as far as possible be provided at one place and if land

area is more than 0.8 hectares (8000 sq. m.), ROS may be provided

at more than one place.

e) Regulation 3.4.1(iii) provides as under:

“Not more than 50% of such recreational open space may be
provided on the terrace of a podium, in congested/non-congested
area subject to Regulation 9.13.
Notwithstanding anything contained in the definition of "Recreational
Open Space" in these regulations, such recreational open space to the
extent of 100% may be allowed to be provided on the terrace of a
podium if owner/developer provides 1.5 m strip of land along the
plot boundary, exclusive of marginal distances, for plantation of
trees.”
f) Regulation 1.3(103)

“Podium - means the floor of a building extending beyond
buildings line/s and used for parking, recreational open space,
recreation, fire and building services/utilities and incidental
purposes, as specified in these regulations.”
g) Regulation 9.13:
“Podium for parking of the vehicles and other uses mentioned
herein, may be permitted with following
requirements/conditions:

(iv) Recreational open space may be permitted on
Podium subject to regulation No. 3.4.1(iii). The

24/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

structure mentioned in Regulation No. 3.4.7 may be
permitted over the podium on which recreational open
space is provided, subject to 15% area of such
recreational open space.”

h) Regulation 3.4.7 deal with structures permitted in open spaces.

i) Regulation 2.4 Discretionary Powers - Relaxation In Specific

Cases:

“In specific cases where clearly demonstrable hardship is
caused, the Authority may permit any of the dimensions/provisions
prescribed by these regulations to be modified provided the
relaxation sought does not violate the health safety, fire safety,
structural safety, and public safety of the inhabitants of the buildings
and the neighbourhood. No relaxation in the setback required from
the road boundary or FSI or parking requirements shall be granted
under any circumstances, unless otherwise specified in these
Regulations.
While granting permissions under these regulations,
conditions/restrictions/limitations may be imposed on size, cost or
duration of the structure, abrogation of claim of compensation,
payment of deposit and its forfeiture for non-compliance and
payment of premium, as may be prescribed by the Authority, if
required.
In areas of Municipal Councils and Regional plan, such relaxation
shall be granted in consultation with concerned Divisional Joint
Director of Town planning.
Notwithstanding anything contained in the Government Order,
Government Resolution, Government Notification etc. issued from
time to time regarding powers of relaxation in Development Control

25/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

and Promotional Regulations, the above provision shall prevail.”

34) In our view, the discretion conferred by Regulation 2.4 of

UDCPR must be exercised on a case-to-case basis. The pertinent words ‘over

and above podium garden’ must be read in context. If read in context, the

intention of the subordinate legislation will be clear. That is, where larger

ROS is mandated and has to be provided at the podium level, the minimum

required ROS shall be ‘clearly open to sky’, even where it is on ‘ground over

and above podium garden’. This means that 100% ROS can be provided on

podium level, provided it is entirely open to sky. An examination of the

Regulations 10.10.2(3)(vi), 9.13, 3.4.1(iii) and 3.4.7 read with Regulation

1.3(103) make it evident that the words ‘over and above podium garden’

are meant to permit the entire ROS to be provided at the podium level,

provided the podium garden is also provided.

35) Considering Regulations 1.3(76) and 1.3(103) which define

‘layout open space’/ROS and ‘podium’ respectively, we find that the

definition of ROS makes no reference to the words such as ‘natural ground’,

‘mother earth’, ‘virgin soil’, ‘at-grade location’, nor does it prohibit ROS from

being provided at the podium level. Thus, where words necessary to

demonstrate the intention of the legislature are not statutorily provided,

they cannot be introduced or read into the definition in the UDCPR by

implication. It is trite law that where a statute or a set of Regulations

26/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

contains two different definitions or similar expressions, the legislature is

presumed to have intended different meanings and Courts cannot treat

such expressions as interchangeable unless the statutory context compels it.

36) We further note that, in Regulation 10.10.2(3)(vi), the words

‘in a Condominium/plot area’ are used with a clear intent to distinguish

such areas from the Co-operative Housing Societies. In the present case,

Respondent Nos.3 to 7 are Co-operative Housing Societies and not

Condominiums.

37) The grant of concession in law, does not amount to a grant of

exemption and the grant of concession is an essential ingredient of a

planning discretion. In our view, the grant of concession to provide ROS at

the podium level furthers compliance with the requirement to provide such

spaces in the redeveloped plot, without violating health safety, fire safety,

structural safety or public safety of either the inhabitants or the

neighborhood.

38) We find that the Petitioner’s contentions are adequately

answered in the replies filed by Respondent Nos. 3 to 7, in which the

Respondents have set out the planning constraints encountered by the

developers in the redevelopment projects. There is no material on record

furnished by the Petitioner to negate these constraints demonstrated by

Respondent No.4. The Petitioner has not brought out any material from

record to show that, planning constraints with regard to (i) the height of

27/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

the new buildings be restricted to 130 meters, (ii) Road setback area

required to be surrendered to NMMC reducing the ground coverage, (iii)

the rehabilitation tenement area mandated under Regulation 10.10.2.2(A)

and (iv) the number of parking spaces for two wheelers and four wheelers

required to be provided under the UDCPR were concocted, imaginary or

false constraints set out by the developer and sanctioned by the NMMC.

39) Similarly, for Respondent Nos. 3 and 5 to 7 the Petitioner has

neither furnished any material nor even asserted that the application

seeking concession was based on concocted data or an imaginary constraint

demonstrated in the said redevelopments. According to us, this alone would

be sufficient to dismiss the Petition. We, however, also propose to consider

the legal issue raised by the Petitioner.

40) The next issue raised by the Petitioner is that the non obstante

clause in Regulation 10.10.2(3)(vi) contains overrides all other regulations

in UDCPR including Regulations 2.4, 3.4.1, 3.4.7 and 9.13.

41) In our view, the argument of the petitioner that Regulation 2.4

and 3.4.1(iii) do not apply on the strength of Regulation 10.10, deserves to

be rejected, because (a) If Regulation 2.4 is held inapplicable, the entirety

of Chapter 10 would become unworkable and (b) The use of the words

‘notwithstanding’ in Regulation 10 cannot be read to exclude all other

provisions of the UDCPR. It must be applied harmoniously and only in a

case of conflict between a provision set out in Chapter 10 and another

28/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

provision of the UDCPR.

42) The Hon’ble Supreme Court in the case of Mohd. Abdul Samad

vs. State of Telangana & Anr., reported in (2025) 2 SCC 49, in paragraphs

81 to 87, held that a non obstante clause is usually appended to a section in

the beginning, with a view to give the enacting part of the section, an

overriding effect, in case of conflict, over the provision or enactment

mentioned in the non obstante clause. Referring to the case of Aswini

Kumar Ghosh versus Arabinda Bose reported in (1952) 2 SCC 237, the

court held that it is only when the enacting part of the statute cannot be

read harmoniously with what is stated in the non obstante clause that the

non obstante clause would yield to what is stated in the enacting part.

43) Thus, Regulation 10.10.2(3)(vi) must necessarily yield to the

other enacting provisions of the UDCPR, and cannot override them.

44) The distinction between Regulation 3.4.1(iii) and Regulation

10.2(3)(vi) is that, in non CIDCO areas, no ROS is required where the land

is less than 4000 sq.mts., and only 10% ROS is required for land having an

area of 4000 sq. meters. Whereas in CIDCO areas, 10% ROS is required to

be provided once the land area exceeds 2500 sq. meters and 15% is

required to be provided once the land exceeds 4000 sq. meters.

45) The Petition itself notes that, the NMMC has used the

Regulation 2.4 of UDCPR on a case-to-case basis. The Petition itself notes

this fact in paragraph No. 7 noting that, of the seven plots, Respondent Nos.

29/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

3 to 7 namely five plots have been granted these concessions, whereas the

other two plots were not granted such concession. This also indicates that

the Authority applied its mind while granting concession.

46) The Petitioner has not brought any material to negate the

factual matrix demonstrated by the Respondents. Moreover, we find merit in

the contention of Mr. Godbole that the Petitioner has laid no factual

foundation to support his contention that, ‘if no ROS is provided at the

ground level, the residence of the redeveloped societies would crowd public

open spaces’. We find that this narrative of the Petitioner is only a bare

assertion, without any substantiation thereof.

47) The reliance placed by the Petitioner on the order dated 13

September 2022 passed by the NGT is also of no avail to him, because the

EC for the redevelopment of the said land was issued on 30th August 2022

and the order of 13th September 2022 does not apply retrospectively.

48) Having perused the record, we find that, all the

redevelopments undertaken by Respondent Nos.5 to 7 have obtained all

permissions required including EC. We find no material on record to

suggest that these permissions have been obtained on the basis of false

and/or fabricated documents and/or by submitting false reports.

49) In the light of the foregoing, the word ‘notwithstanding’ in

Chapter 10, cannot be read to include the application of the General

Regulations contained in Chapters 1, 2 and 3 of the UDCPR. The general

30/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

provisions of the UDCPR continue to apply even to city specific

development under Chapter 10, to the extent that they do not conflict one

another. The Petitioner has failed to demonstrate any perversity in the

exercise of powers by the Planning Authority under Regulation 2.4 of the

UDCPR, such as would warrant an intervention by this Court.

50) We place on record several factors that weigh against the

Petitioner. The Petitioner has no expertise in the field, holds no qualification

in Town Planning, and possesses no special knowledge of building

construction. Despite this, when the Corporation invited him to join the

committee and assist it, he declined. There is no explanation for his failure

to raise the issue earlier, a circumstance that supports the Respondents’

contention on delay and latches. Further, he has selected only five societies,

namely Respondent Nos. 3 to 7 and not all the projects that were granted

concessions concerning open spaces. The Petition is vague and devoid of

particulars as to how the concessions granted were arbitrary and ought

never to have been sanctioned. These observations lend credence to the

Respondents’ assertion that the Petitioner is motivated by publicity. We

express no view on whether his actions were, in fact, well-intentioned.

51) Public-spirited individuals who make effort of filing such

Petitions often do so only to draw the Court’s attention to lacunae on the

part of Authorities who frequently keep their decisions opaque, which gives

rise to suspicion and drives the public-spirited individuals to file such

31/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

Petitions. The assertions in the Petition make it abundantly clear that the

Petitioner’s queries were responded to belatedly and vaguely, and that

certain information sought in the RTI Applications was never divulged. The

State Authorities must be transparent in their functions. They cannot play

hide and seek with the public. If their decisions are substantiated, they

ought to have no reason to shield them from disclosure. We are conscious

that, at times, such RTI Applications are made only to create doubt and to

threaten the developer with litigation, with the view to extorting money

from them.

52) Civic participation is fundamental to the thriving of a

democracy. It fosters a sense of ownership and responsibility amongst

citizens and strengthens their commitment to the collective welfare of the

society. By permitting them to voice their concerns and hold elected officials

accountable, the principles of democracy are upheld and the foundation of

nation’s governance are reinforced.

53) This may be addressed by the Civic Authorities by convening

meetings to discuss local issues, receive grievances and propose solutions.

Such meetings would provide a platform for direct interaction between

citizens and elected officials, fostering dialogue and collaboration in

addressing community needs. The State may consider establishing

community oversight committees comprising of diverse stakeholder groups,

to monitor and evaluate Authorities activities and ensure transparency and

32/33
apn/sns 60-pil-26-2024 J 27-9-26.doc

accountability. Where meetings are not feasible, digital platforms may

enable the civic authorities and elected representatives to communicate and

coordinate the redressal of civic issues efficiently. The State and Civic

Authorities must, in both letter and spirit, honour and give effect to the

principles of ‘communication’ and ‘openness’.

54) Be the as it may, in the light of the above discussion we do not

find any merit in the Petition and accordingly dismiss it.

55) In view of the disposal of Petition, the Interim Application filed

therein does not survive and is accordingly disposed off.

(KAMAL KHATA, J.) (A.S. GADKARI, J.)

33/33

Continue reading with your account

Checking your session…

Lawyer court records for this case

Associated through the court’s case reference.