JANHIT MANCH & ANR.versusSTATE OF MAHARASHTRA & ORS.

                               [2017) 8 S.C.R. 428


A                       JANHIT MANCH & ANR.
                                       v.
                  STATE OF MAHARASHTRA & ORS.
               (Transfer Petition (Civil) No. 567 of 2017 etc.)
B                                JULY31,2017
              fA. K. SIKRI AND ASHOK BHUSHAN, JJ.f
          Transfer Petition:
          PIL filed before High Court - High Court noticed that issues
C raised therein were already pending consideration before Supreme
  Court - Granted liberty to the petitioner to file transfer petition -
  Pursuant thereto transfer petition seeking transfer of the PIL to the
  Supreme Court - SLPs also filed by parties against interim orders
  passed in the PIL - Held: The issues pending consideration before
D Supreme Court has bearing on the PIL - It is in the interest ofparties
  to decide the issues finally - Tramfer petition allowed - SLPs
  challenging the interim orders dismissed with liberty to seek
  alteration/variation/modification of the interim orders before this
  Court.
         Allowing the transfer petition and dismissing the SLPs, the
E   Court
          HELD: 1. The issues which have been raised in the SLP(C)
    CC Nos.13527-13528 of 2016 filed by the petitioners and SLP(C)
    Nos.10704-10705 of 2016 filed by respondent No.6 have bearing
    on the PIL No.17 of 2017 and it is in the interest of all the parties
F   that such issues be decided finally, when the issues have already
    been entertained by this Court. [Para 211 [436-DJ
        2. This Court is considering only the petition for transfer
  of PIL No.17 of 2017 as well as the challenge to only interim
  orders passed by Bombay High Court in PIL No.17 of 2017, the
G Court refrains to express any opinion on various aspects relating
  merits of the case. The observations made by this Court in this
  order are limited for deciding the transfer petition and SLPs
  before this Court, such observations may not have any bearing
  on the issues when they are finally heard and decided. [Para 221
H [436-FJ
                                       428
       JANHIT MANCH v. STATE OF MAHARASHTRA                               429


      3. SLP(C) Nos.10704-10705 ()f 2016 filed against order A
dated 27.01.2016 being pending consideration, ends of justice
be served in allowing the transfer petition transferring the PIL
No.17 of 2017 from Bombay High Court to this Court to be heard
alongwith ~LP(C) Nos.10704-10705 of 2016 and SLP(C) CC Nos.
13527~13528 of 2016. The transfer petition is thus allowed, (Para B
24][436-H; 437-A-B]
       4. As regards SLP(C) Nos.11749-11750 of 2017, which has
 been filed against the interim orders dated 24.02.2017 and
 11.03.2017 passed by the Bombay High Court, in PIL .No. 17 of
 2017, in view of the order passed in Transfer Petidon(C) No.567 . C
 of 2017, the PIL No.17 of 2017 is being transferredto this Co11rt.
:As on the date, there is no good ground to set aside the aforesai.d
 interim orders, however, PIL No.17 of 2017 having been
 transferred to be heard by this Court, it is open for the parties to .
 pray for alteration/modification/variation of the aforesaid interim
 orders before this Court. The SLP(C)-Nos.11749-11.750 of 2017 D
 are dismissed subject to above observatio.ns. [Para 25)[437-B-
C]
      CIVIL ORIGINAL JURISDICTION: Transfer Petition (Civil) No.
567 of2017.
      Under Article 139Aofthe Constitution of India                        E
                                 WITH
      SLP (C) Nos.11749-11750 of2017.
       Muk:ul Rohatgi, Kapil Sibal, Chander Uday Singh, Arvind Nayar,
Sr. Advs., Prashant Bhushan, Ranbir Singh, Ms. Garima Prashad, Ms.          F
Ruby Singh Ahuja, SauravAgarwal, Lalit Kataria, Ms. Deepti Sarin,
Sidhanth Gupta, Mis. Karanjawala & Co., Ms. Meera Mathur, Advs.
for the appearing parties.
      The Judgment of the Court was delivered by
       ASHOK BHUSHAN, J. I. The Transfer Petition and the Special G
Leave Petition arising out of similar faGts and events have been heard
together and are being decided by this common order. The background -
facts giving rise to the transferpetitio!l'as well as Special Leave Petition
need to be noted first. ·
       2: The partles in both the cases being common shall be hereinafter
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430           SUPREME COURT REPORTS                        (2017] 8 S.C.R.


A referred to as described in the transfer petition. Janhit Manch and another
  which had filed the PIL at the Bombay High Court are referred to as
  petitioners whereas, Shri Ram Urban Infrastructure Ltd.(SRUIL) is
  referred to as respondent No.6 and other respondents are referred to as
  described in transfer petition.
B         3. The genesis of dispute is PIL No. 43 of2012 filed by petitioners
  in the Bombay High Court. In PIL No.43 of 2012, petitioners have
  questioned the action of respondent No. 3 in respect of concessions
  granted for development of various buildings in the city of Mumbai i.e.
  concessions granted in respect of development of various buildings which
  consequently enabled the developers to amass additional areas under
C various heads, such as refuge areas, passages, flower beds, decks etc.,
  free of Floor Space Index ("FSI"). The case of the respondent No.6
  was specifically mentioned and challenged. It was pleaded that
  respondent No.6 against the permitted FSI of 54715.196 sq. mtrs. had
  used additional FSI of approximately 6355.58 sq. mtrs. under the guise
D of various heads such as refuge areas, passages, decks etc.
          4. The Bombay High Court vide its judgment dated 13.05.2013
  decided the PIL No.43 of2012. In its judgment, the High Court held that
  the refuge areas granted to respondent No.6 with respect to the said
   building was in utter excess of norms. Thus, Municipal Commissioner
  was directed to re-examine the issue of excess refuge area and to re-
E issue the FSI. Petitioners filed SLP(C) No.20279 of2013, challenging
  the judgment of the High Court dated 13.05.2013.
          5. The respondent No.6 had proceeded to construct a 56 storey
   building. Respondent No.6 also proposed to construct a public parking
   lot(PPL) of three Basements + Lower ground + Stilt+ 15 Floors. Stop
F Work Notice was issued by Mumbai Municipal Corporation on
   14.12.2011 to respondent No.6 to desist from continuing with construction
   of public parking lot. The said Stop Work Notice was challenged by
   respondent No.6 in Bombay City Civil Court by L.C. Suit No.2942 of
   2011. After judgment of the High Court dated 13 .05.2013, the respondent
G No.6 approached the Municipal Commissioner. The Municipal
   Commissioner passed an order on 12.09.2013. The Municipal
   Commissioner in his order observed that (i) Refuge areas would be
   provided free of FSI only to the extent of 4 per cent of the built up area
   it served in the said building; (ii) those areas in excess of requirements
   would be counted in FSI in accordance with National Building Code,
H 2005.
         JANHIT MANCH v. STATE OF MAHARASHTRA                            431
                  [ASHOK BHUSHAN, J.]

          7. Respondent No.6, aggrieved by the order dated 12.09.2013, A
· filed a Writ Petition (c) No.2223 of2013 before the Bombay High Court.
  The order of Civil Court dated 16.05.2013 whereby Stop Work Notice
  was set aside, was also challenged by Municipal Corporation of Greater
  Bombay in the High Court by filing a First Appeal No.884 of2015.
        8. The petitioners' SLP(C) No.20279 of2013 was finally heard, B
. in which separate and dissenting judgments were delivered on
  25.04.2014, which mandated the SLP to be referred to a larger Bench. ·
  The petitioner had filed another PIL No.133 of 2015, where certain
  amendments in DCR were challenged. The Writ Petition filed by
  respondent No.6 being Writ No.2223 of 2013 was decided on 22nd. 25•h
  and27'h January~2016.alongwith FirstAppeal No.884 of2015.              C
        9. Municipal Commissioner was directed to hear the respondent
 No.6 and to decide what should be the reasonable refuge area in the
 said building. The order dated 12.09.2013 was confirmed in parts. The
 SLP(C) No.20279 of2013 was listed on 11.03.2016 on which date, the
 Three Judge Bench disposed off the SLP holding that in view ofjudgment D
 of the High Court dated 22"d, 25'h and 27'h, January 2016 no issue is
 alive, however, the liberty was granted to make a mention for recall of
 the order.·
         10. The judgment of Bombay High Court dated 22nd, 25'h and 27'h ·
 January, 2016 was challenged by the respondent No.6 before this court E
 in SLP(C) No.10704-05 of2016. This Court on 29.04.2016 has issued a
 notice in SLP of respondent No.6, however, no interim order was passed.
 The petitioners also preferred the SLP(C) CC Nos.13527-13528of2016,
 challenging the above judgment of the Bombay High Court. Petitioners
 also filed IA 6of2016 for recalling the Three Judge Bench order dated F
 11.03.2016, contending that several issues remain alive for adj~dication.
 After the order of Bombay High Court dated 22nd, 25th and 2'J'h January,
 2016, respondentNo.3 passed an order on 31.08.2016. RespondentNo.3
 inter alia held that:
        "(a) The areas provided on the external peripheral face of G
        the flat be allowed as refuge area;                    .
        (b)The refuge areas at the inside of the building at entrances
        of flats shall' not be considered as refuge area;

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432            SUPREME COURT REPORTS                        [2017) 8 S.C.R.


A           (c) The four full floors shown as refuge will not be taken as
            refuge; and
            (d) The structural columns falling in the above decided refuge
            areas can be allowed free of FSI. "
           11. The order dated 31.08.2016 passed by respondent No.3 was
 B challenged by the petitioners by filing PIL No.17 of 2017. High Court
   vide its order dated 24.02.2017 directed the respondent No.2 to file its
   affidavit in reply within three weeks and not to act upon the impugned
   order dated 31.08.2016 till the next date. Subsequently, matter was
   taken by the Bombay High Court for hearing on 17 .03.2017. After hearing
 c the counsel for both the parties, an order was passed by the Bombay
   High Court on 17 .03.2017. Para No.4 to 7 of the order are to the following
   effect:
             "(4) Apparently, the subject matter of the present litigation is
            an order dated 31.08.2016 at "Exhibit C" (page 58) which is
D           the order of the Municipal Commissioner of Greater Mumbai
            in pursuance of the directions of this Court dated 27.01.2016
            {n Writ Petition (c) No. 2223 of 2013.
            (5) Challenging the orders in Writ Petition (c) No.2223 of
            2013, both the parties i.e. the petitioners and respondent No.
 E          6 have filed Special Leave Petitions. The petitioners before
            us have filed Special Leave Petition No.13527 of 2016, and
            respondent No. 6 has filed Special Leave Petition Nos. I 0704
            to 10705 of 2006. Admittedly no interim orders are issued in
            the above SLPs before the Apex Court. Meanwhile, in
            pursuance of the directions in Writ Petition (c) No.2223 of
 F          2013, the Commissioner has passed an order dated
            31.08.2016 which is the subject-matter of the present Public
            Interest Litigation. Since the larger issues are pending before
            the Apex Court pertaining to the very same alleged illegalities
            committed by .respondent No.6 so far as the property in
 G          question, both the parties are in ad idem with the submission
            that the impugned order of the Commissioner dated 31. 08.2016
            also can be challenged before the Apex Court since that will
            put an end to the controversy between the parties once for
            all.
            6. In that view of the matter, the parties are at liberty to
 H
        JANHIT MANCH v. STATE OF MAHARASHTRA                                    433
                 [ASHOK BHUSHAN, J.] ·

       approach the Apex Court with necessary application for                   A
       transferring the present Public lnter<fst Litigation also to be
       tagged alongwith the Special Leave Petitions pending before
       the Apex Court.
       7. In order to enable the parties to take appropriate course
       of action as stated above, we continue the interim order dated B
       24.02.2017 for a period of.four weeks."
       12. In view of the order of the Bombay High Court dated
17.03.2017, the Transfer Petition has been filed by the petitioners in this
Court.                          '                                           ·
       13. SLP(C) Nos.11749-11750 of 2017 have been filed by C
respondent No.6; questioning the interim order passed by the Bombay
·High Court dated 24.02.2017 and 17.03.2017 in PIL No.17 of2017.
          14. We have h_eard Shri Mukul Rohatgi, senior counsel appearing
  for the petitioners and Shri Kapil Sibal, senior counsel appearing for
  respondent No.6. Shri Mukul Rohatgi contends that the judgments of D
  the Bombay High Court dated 22 11d, 25'h and 27'h January 2016 have
  been challenged by both petitioners as well as respondent No.6 by filing
  different SLPs, which are pending for consideration. Notice has also
  been issued by this Court in SLP filed by respondent No.6 on 29.04.2016
  and on 18.07.2016, SLP(C) Nos.13527-13528 of 2016 filed by the E
  petitioners have been ordered to be tagged with the SLP(C) Nos.10704-
   10705 of2016. The subsequent order passed by Municipal Commissioner
  dated 31.08.2016 has been passed, in consequence of the judgment of
  the Bombay High Court dated 22 11d, 25'h and 271h January 2016. The
  order passed by the High Court being already under challenge, by both
  the parties in this Court, subsequent order dated 31.08.2016 has also F
  been challenged by petitioners by filing PIL No.17 of 2017 wherein,
  learned counsel for both the parties before the Bombay High Court have
· stated _that the issues, which are raised in PIL No.17 of 2017 are the
   issues, which are _already engaging attention of this Court in above
   mentioned two SLPs filed by both the parties. The High Court, thus, · G
   after further hearing the parties granted liberty to the writ petiti~ner to
   file an application for transfer of PIL No.17 of2017 to be heard alongwith
   pending SLP. It is submitted that all the.issues raised are issues of vital
   public importance, concerning with safety and security of persons who·
   will occupy the concerned building and it is necessary that issues are
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434             SUPREME COURT REPORTS                             [2017] 8 S.C.R.


A finally decided by this Court so that correct and valid measures are
  taken by respondent No.2 to respondent No.5 regarding construction
  and use of the building which will house hundreds of people.
              15. Shri Kapil Sibal, Sr. Advocate, vehemently, opposing the
      transfer petition contends that there is no ground to transfer the PIL
B     No.17 of2017 in this Court. Municipal Commissioner by an order dated
      31.08.2016 has decided all the issues which have been questioned by
      the petitioners in the High Court where all the issues can be gone into
      and decided? In view of the subsequent order of the Commissioner dated
      31.08.2016, earlier litigation including SLPs filed by both the parties against
      the judgment of the High Court dated 22 11d, 25th and 27th January, 2016
c     ought not to be required to be adjudicated on merits and it is futile to
      transfer the PIL to this Court. It is further contended that in none of the
      Writ Petitions filed by the petitioners or the SLPs any interim order has
      been passed either by the Bombay High Court or by this Court and it is
      for the first time that on 24.02.2017 interim order has been passed by
D     the High Court in PIL No.17 of2017. It is contended that the building
      is standing for last five years to be occupied by the occupants who are
      waiting for occupying the flats. Petitioners are under heavy recurring
      liability by paying interest per month to the extend of crores of rupees,
      which is causing great hardship and prejudice to respondent No.6. It is
      submitted that construction of the building has been as per sanction plan
E     and it is not the case of anyone that there is any violation of sanction
      plan. It is contended that the refuge area is now earmarked adjoining
      each flats by respondent No.6, which has been rightly accepted by
      Municipal Commissioner and the four floors which were separately
      earmarked as refuge area has not been upheld. It is submitted that the
 F    PIL initiated by the petitioners is not bona-fide litigation and in fact it has
      been set up by rival builders with whom respondent No.6 has dispute. It
       is also submitted that transfer petition deserved to be rejected and the
      SLP(C) Nos.11749-11750 of2017 be allowed, setting aside the interim
      order passed.by the High Court dated 24.02.2017 as extended on
       17.03.2017inPILNo.17 of2017.
 G
             16. We have considered the submissions of both the parties and
      perused the record. The order passed by the Municipal Commission.er
      dated 12.09.2013, in pursuance of order passed by the Bombay High
      Court on 13.05.2013 in PIL NoA3 of2012 was challenged by respondent
      No.6 in Writ Petition(C) No.2223of2013 before the Bombay High Court.
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           JANHIT MANCH v. STATE OF MAHARASHTRA                               435
                    [ASHOK BHUSHAN, J.)

  The order of the High Court dated 13.05.2013 passed in PlL No.43 of A
  2013 was already challenged by the Petitioners by SLP(C) No.20279 of
  2013. The Writ Petition(C) No;2223 of2013 filed by respondent No.6
  was decided by the Bombay High Court. on 27.01.2016, which was
  challenged by both petitioners and respondent No.6 by means of SLPs,
  as noted above. After the order dated 27.01.2016, Municipal B
 ·Commissioner proceeded to pass an order dated 31.08.2016. The
  Municipal Commissioner after re-examining the issue regarding refuge
   area held, as follows:
          "1. Periphery refuge area surrounding each flat on each
         floor(4 flats in number on each floor) was allowed.
                                                                              c
         [Note: The total refuge area allowed by the Commissioner
         surrounding the flats on each floor amounts to 60% of the
         habitable area on the respective floor]
         2.4 entire refuge floors were to be blocked.
         3. National Building Code 2005 would not apply since the D
         building is already constructed as per past approved plans .
         (contrary fo the Judgment dated 27.01.2016)."
            17. The order dated 31.08.2016 has been challenged by petitioners
  . by filing PIL No.17 of 2017 in which Bombay High Court passed an ·
    order on 24.02.2017 and 17.03.20171 as noted above. The order of E
    Comrrii.ssioner dated 31.08.2016 has been passed in pursuance and
    consequence of the judgment of the High Court dated 27.01.2016.
    Judgment dated 27.01.2016 is no.w challenged in this Court by SLP filed ·
    by both the parties. In SLP filed by respondent No.6 notice has been
. , issued by this Court and the SLP filed by the Petitioners has been tagged F
    with either SLP.
          18. The important issues, pertaining to ~efuge area, FSI are
   engaging the attention of this Court. Provisions of the Development .
   Control Regulations for Greater Mumbai, 1991 are under consideration:
   The developments carried out by builders in buildings, which is to house G
   hundreds of people are not question of rights of developers alone. The·
   development regulations and various other statutory rules enjoin ·
   performance of various statutory duties and statutory obligations in respect
   to development of buildings, which are to house hundreds of occupants.
   The life and safety of occupants is a matter of public importance andthe
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436            SUPREME COURT REPORTS                          [2017] 8 S.C.R.


A issues raised· relate to public concern & safety which need to be decided
  at the earliest.
           19. The concern expressed by Shri Kapil Sibal that due to delay
   caused in finalizing the issues, respondent No.6 has been suffering huge
   loss, is also a matter of concern. Early decision of such disputes is in the
 B interest of both the public in general as well as the persons who have
   carried out development after incurring huge expenditure.
             20. It is relevant to note that the Bombay High Court in Paras 4 to
      7 of the Order dated 17.03.2017, noticing the facts that issues raised in
      PIL No.17 of 2017 are already pending consideration in this Court as
 c    mentioned in Para 5 has granted liberty to the petitioners to move an
      application to file a transfer petition.
          21. After having considered the submissions of the parties and
   perusing the material brought before us, we are of the opinion that issues
   which have been raised in the SLP(C) CC Nos.13527-13528 of2016
 D filed by the petitioners and SLP(C) Nos.10704-10705 of2016 filed by
   respondent No.6 have bearing on the PlL No.17 of2017 and it is in the
   interest of all the parties that such issues be decided finally, when the
   issues have already been entertained by this Court, as noted above.
          22. Learned counsel for both the parties although have raised
 E various submissions touching on the merits of issue but at this stage
   when we are considering only the petition for transfer of PIL No.17 of
   2017 as well as the challenge to only interim orders passed by Bombay
   High Court in PIL No.17 of2017, we refrain to express any opinion on
   various aspects relating merits of the case. The observations made by
   us in this order are limited for deciding the transfer petition and SLPs
 F before us, such observations may not have any bearing on the issues
   when they are finally heard and decided.
          23. It is further relevant to notice that the SLP(C) No.20279 of
   2013, which was filed by petitioner against the order dated 13.05.2013
   of the Bombay High Court in PIL No.43 of2012, which was disposed of
 G by Three Judge Bench on 13.05.2013, an application on I.A.6 has also
   been filed by the petitioners to recall the order and determine the issues.
   No order has yet been passed in l.A.6 of 2016, which application is
   waiting for consideration by Three Judge Bench.
             24. In view of forgoing discussion, SLP(C) Nos.10704-10705 of
 H
            JANHIT MANCH v. STATE OF MAHARASHTRA                                    437
                    . [ASHOK BHUSHAN, J.]

   2016 filed against order dated 27;01.2016 being pending consideration, A
   ends ofjustice be served in allowing the transfer petition transferring the.
   PIL No.17 of2017 from Bombay High Court to this Court to be. heard
   alongwith SLP(C) Nos.10704-10705 of 2016. and SLP(C) CC,Nos.
   13527-13528 of 2016. The transfer petition is thus allowed.
          25. Coming to SLP(C)Nos.11749-11750 of2017, in which interim B
   orderdated24.02.2017and17.03.2017 have been passed by the Bombay
   High Court, in view of the order passed in Transfer Petition(C) No.567
   of2017, the PIL No.17 of2017 is being transferred to this Court. As on
   the date we do not see any good ground to set aside the aforesaid interim ·
   orders, however, PIL No.17of2017 having been transferred to be heard
- .by this Court, it is open for the parties to pray for alteration/modification/ C
  ·variation of the aforesaid interim orders before this.Court. The SLP(C) .
   Nos.11749-11750 of2017 are dismissed subject to above observations.
         26. In result, Transfer Petition is allowed and the SLPs are
   dismissed subject to observations as made above.
                                                                                    D

   Kalpana K. Tripathy                                       Matters disposed of.




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