Supreme Court of India
JAYANT ACHYUT SATHEversusJOSEPH BAIN DSOUZA AND ORS.
- Citation
- 2008 INSC 1014
- Decided
- 4 September 2008
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
The Supreme Court held that the High Court was not justified in reading additional requirements into Regulation 33(7); the regulation is valid as worded, but the five‑foot side‑space restriction for buildings under 24 m is unreasonable and must be increased to at least 3.6 m.
Summary
The petitioners filed a writ petition challenging the amendment of Regulation 33(7) of the Development Control Regulations, 1991 (Greater Mumbai), alleging that it was being misused to demolish privately owned, sound pre‑1940 buildings and that the regulation imposed unreasonable side‑space restrictions. The Bombay High Court upheld the regulation but read it to apply only to dilapidated "A" category cessed buildings declared unsafe before the monsoon of 1997, granting them extra Floor Space Index (FSI). On appeal, the Supreme Court examined the statutory construction of Regulation 33(7) and the phrase "which attracts the provisions of the MHADA Act, 1976". The Court held that the High Court was not justified in adding extra conditions to the regulation and that the language of the regulation, taken in its proper grammatical context, applies only to the specified category of buildings without creating new acquisition requirements. While the Court affirmed the validity of the regulation, it found the reduction of side‑space to five feet for buildings under 24 m height unreasonable and directed a minimum side‑space of 3.6 m. Consequently, the appeal was allowed and the High Court’s added requirements were set aside.
Issues considered
- The correct interpretation of Regulation 33(7) of the Development Control Regulations, 1991, especially the phrase "which attracts the provisions of the MHADA Act, 1976".
- Whether the High Court was justified in reading additional requirements (such as limiting applicability to dilapidated buildings and side‑space provisions) into Regulation 33(7).
- Whether the side‑space restriction to five feet for certain buildings violates Article 14 of the Constitution.
- Whether Regulation 33(7) as amended is intra vires the Town Planning Act, 1966 and the MHADA Act, 1976.
Legislation cited
- Maharashtra Housing and Area Development Act, 1976s. 88, s. 89, s. 91, s. 92
- Maharashtra Regional and Town Planning Act, 1966s. 154
Subjects
Town planningDevelopment Control RegulationsRegulation 33(7)Floor Space IndexDilapidated buildingsPublic interest litigationStatutory interpretationArticle 14MHADA ActOpen space requirement
Judgment
[2008] 13 S.C.R. 31
JAYANT ACHYUT SATHE A
v.
JOSEPH BAIN D'SOUZA AND ORS.
(Civil Appeal_ No. 2970 of 2006)
SEPTEMBER 4, 2008
B
-~ [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]
Town Planning:
Development Control Regulations, 1991 - Regulation
33(7) (as amended) - Regulations notified for greater Mumbai c
- Writ petition alleging gross misuse of Regulation 33(7) -
High Court upholding Regulation 33(7) and making it
applicable only to dilapidated buildings off\' category which
satisfy the requirement and those declared prior to monsoon
of 1997 under 3rd proviso - It also held that buildings entitled D
to extra "Floor Space Index" and certain side space to be
-i
provided - On appeal held: High Court not justified in reading
additional requirements into Regulation 33(7) after holding it
to be valid - In interpreting a statute, meaning of particular
words is to be found not so much in a strict etymological E
propriety of language, nor even in popular use, as in the
subject or occasion on which they are used and object that is
intended to be attained - Applying rules of grammar, the term
"which attracts the provisions of MHADA Act, 1976" could only
qualify the proximate substance "cessed building of A category F
in Island city" and nothing more - Interpretation of statutes -
Maharashtra Housing and Area Development Act, 1976 .
Problems arose in the island city of Mumbai with
regard to congestion of population. Various Acts were
enacted and amended in respect of repair and G
reconstruction of dilapidated buildings. The Development
"'' Control Regulations, 1991 were notified for greater
}- Mumbai. Regulation 33(7) provided for reconstruction and
development of cessed buildings in the island city of
31 H
32 SUPREME COURT REPORTS (2008] 13 S.C.R.
1
A cooperative housing societies or of old buildings
belonging to the Corporation. It also provided for
consumed FSI or FSI 2 whichever is higher. The
Regulation was amended time and again. The petitioners
filed writ petition on the ground that there was gross
B misuse of the amended Regulation 33(7) when it applied
to private buildings; that buildings which are otherwise
in good condition have been pulled down merely
because they were constructed prior to 1940; that there
are no guidelines as to who are the tenants or occupiers
c who are eligible to be protected under the Regulations.
High Court while holding that Regulation 33(7) does not
suffer from any illegality, held that the same applies only
to dilapidated buildings of 'A' category which satisfy the
requirement and those declared prior to the monsoon of
1997 under 3rd proviso are covered under Regulation
D
33(7) and are entitled to extra "Floor Space Index"; and
that certain side space would be provided. Hence, the
present appeal.
Allowing the appeal, the Court
E HELD: 1.1 High Court was not justified in reading
additional requirements into Regulation 33(7) after holding
the same to be valid. [Para 43] [62-C-D]
1.2 If different language is used in the same section
F or in different sections, the legislative intent is that they
are intended to lead to different results and there is a ,.
conscious intent. [Para 25] [57-G]
Member Board of Revenue vs. Arthur Paul Benthall 1955
(2) SCR 842, 845 846; Commissioner of Income Tax, New
G Delhi now Rajasthan v. Mis East West Import and Export (P)
Ltd; Asian Distributors Ltd.}, Jaipur 1989 (1) SCC 760 - relied
on. ,,.
_..
1.3 In the writ petitions filed there was no challenge
to Regulation 33(7) of the Development Control
H
JAYANT ACHYUT SATHE v. JOSEPH BAIN 33
' D'SOUZA & ORS.
Regulations, 1991. Only incentive FSI was challenged. A
So far as Regulation 33(7) is concerned, there will btf no
acquisition in Chapter VIII. Stress is on spending money
out of the funds and of acquisitions. Chapter VIII-A
essentially deals with occupiers. Acquisition and the
·~
Board's role is that of certification. Under Regulation 33(7) B
the occupier and the landlord are involved. There is no
acquisition and there is no government fund utilized.
There is a Transferable Development Right (TOR) and the
concept of incentive FSt [Para 26] [58-D-F]
1.4 A survey conducted by the Corporation in 1980- c
81 showed that 30,237 buildings would have crossed their
life span by 1996. The Kerkar Committee report recorded
that the vast majority of the buildings would have to be
reconstructed. The report on the Development Plan for
_,, Greater Bombay showed that in 1.981, 5,82,200 tenements D
were required to house the natural growth of population.
In 1991 nearly 73% of the households occupied one room
tenements - vertical slums; 18% occupied two rooms i.e.
most of the persons - more than 90% lived in small areas.
Those occupying large areas constitute 2.7% only. E
Between 1961 and 1991, the number of households
increased to 20,88,000. Most of the tenements are of 100
to 120 sq. ft area only. The policy was to enhance the
quality of the lives of those living in such poor conditions
by increasing the living space to nearly double. This is to
F
be contrasted with the need to give a better lifestyle to
those who can afford to live a leisurely life. If such people
have to undergo some hardships, the policy cannot be
faulted especially when they constitute a minority. [Paras
30, 31 and 32] [59-A-E]
G
1.5 In interpreting a statute, the meaning of particular
words is to be found not so much in a strict etymological
propriety of language, nor even in popular use, as in the
subject or occasion on which they are used and object
that is intended to be attained. [Para 33] [59-E-F] H
34 SUPREME COURT REPORTS [2008] 13 S.C.R.
~
A 1.6 The writ petitioners did not challenge the validity
of Regulation 33(9) pertaining to reconstruction by MHADA
or Regulation 33(7) in so far as it applies to the
reconstruction by the Government or the Municipal
Corporation even though the FSI is the same. The proviso
B to Regulation 33(7) allows Government, MHADA/
f
Corporation to get even more than the FSI specified in
Appendix Ill. Most of the buildings constructed prior to
1940 (17,490 buildings) were constructed prior to 1905.
Most of the buildings have outlived the period of their
survival by 1979. 80% were occupying one-room
c tenements. [Paras 34 and 35] [59-G-H; 60-A-C]
Vivian Joseph Ferreira and Anr. v. The Municipal
Corporation of Greater Bombay and Ors. 1972 (1) SCC 70 -
referred to.
D 1. 7 Applying rules of grammar, the term "which .....
attracts the provisions of MHADA Act, 1976" could only
qualify the proximate substance "cessed building of A
category in Island city" and nothing more. It would be
seen that with respect to reconstruction of buildings both
E Chapters VIII and VlllA require the building to be acquired
by the Board for the reconstruction in terms of Sections
92 and 103B (3). This is not the case with Regulation 33
(7). [Paras 36 and 37] [60-B-D]
Mahadeolal Kanodia v. The Administrator General of
F West Bengal 1960 (3) SCR 578 - referred to.
1.8 Appendix Ill casts several duties on the Board for
the working of Regulation 33 (7) as inter alia: (a) Clause
3 requires certification of the occupiers and irrevocable
consent to be certified by the Board; (b) Clause 4 requires
G that the tenements have to be allotted to the occupiers as
per\ the list certified by the Board; (c) Clause 11 requires
the FSI as in Regulation 33 (7) should be allowed only ~
,
after the Board is satisfied that the redevelopment
proposal satisfies all the conditions to be eligible for the
benefits under the Regulations. [Para 38] [60-E-F]
H
JAYANT ACHYUT SATHE v. JOSEPH BAIN 35
} D'SOUZA & ORS.
1.9 The challenge to the restriction of five feet open A
space (1.5 metres) is hopelessly delayed and barred by time
as inter alia: (i) the requirement of limiting the open space to
five feet has been in existence since 1984 and was also a
part of Development Control Regulation of 1991. When the
·-i . Board reconstructs a building it covers almost the entire B
land save for five feet open space. The Sukthankar
Committee also recommended that the open space should
be 5 feet. The challenge to the restriction of five feet open
space has been made on the basis that the open spaces
are already too low and that the DC Regulations made it c
even less. [Paras 39 and 40] [60-H; 61-A-B]
Bombay Dyeing and Mfg. Co. Ltd. (3) v. Bombay
Environmental Action Group and Ors. 2006 (3) SCC 434 -
referred to.
D
1.10 The State and MHADA filed affidavits supporting
the appeals. In the affidavit filed by the State, it was set
out that' : (i) The Town Planning Act does not define
category A cessed buildings and the reference to the
provisions of Development Act were only to explain what
the term "category A cessed buildings" meant. (ii) By and E
large the old buildings constructed prior to 1940 were
built when there was no concept of FSI and the open
spaces were at times only .2 to 3 feet. (iii) The width of
most of the plots was about 30 feet and requiring a 12
feet open space to be left would mean .that there would F
be no scope to redeveloR the buil.d,ing. (iv) Where a
building was in the set back area as per the development
plan, the land covered by the set back area had to be
given to the authorities and the road was widened. [Para
41] [61-C-F] G
1.11 In the affidavit filed by MHADA, it was set out
>- that: (i) Reference to Development Act is with reference
to the definition of cessed buildings which is not found
under the Town Planning Act or the DC Regulations and
H
36 SUPREME COURT REPORTS [2008] 13 S.C.R.
A is found only in the Development Act. (ii) A perusal of
Regulation 33 (7) shows that the emphasis is on pre 1940
buildings and nothing more. (iii) Confining Regulation 33
(7) to only the private buildings and not the Government
buildings would make the Regulation arbitrary. (iv) Under
B Regulation 33 (10) the open space is 5 feet and to insist
on 12 feet as per the High Court judgment it would make
the same unreasonable and prevent even buildings which
are on the verge of collapse from being redeveloped. [Para
42] [61-G-H; 62-A-C]
C Ba/co Employees Union (Regd.) v. Union of India and
Ors. 2002 (2) SCC 333 - referred to.
Case Law Reference
2002 (2) sec 333 Referred to. 24
D 1955 (2) SCR 842 Relied on. 25
1989 (1) sec 760 Relied on. 25
1972 (1) sec 10 Referred to. 35
1960 (3) SCR 578 Referred to. 36
E
2006 (3) sec 434 Referred to. 40
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 2970
of 2006
From the final Judgment and Order dated 17.10.2005 of
F the High Court of Judicature at Bombay in Writ Petition No. ,.. 1
-
3189 of 2004
WITH
With C.A. Nos. 2971, 2972, 2973, 2974, 2975, 2978,
G 2979, 2976, 2977 of 2006, 5491, 5492, 5493, 5494, 5495,
5490, 5496 of 2008 and Cont. Pet. (C) No. 44/2008 in C.A. No.
2970 of 2006
B.A. Khan, R.F. Nariman, Dushyant Dave, Shyam Diwan, ,.
H lndu Malhotra, M.L. Verma, C.A. Sundaram, Siddharth
JAYANT ACHYUT SATHE v. JOSEPH BAIN 37
O'SOUZA & 0.RS.
Bhatnagar, Shivangi Shastri, Sonia Dube, Indra Sawhney, Dr. A
Saif Mahmood, Manisha Kapadia, Mryadunath Chaudhary,
Aman Vachher, H. Devarajan, Dhamm Chhapkar, P.N. Gupta,
Subhash Chandra Birla, S.G~ Birla, Yadunath Chaudhari, Pramit
Saxena, Amit Yadav, S.V. Deshpande, Anagha S. Desai,
SatyajitA. Desai, Amol N. Suryawanshi, Joaquim Reis, Santosh B
Paul, M.J. Paul (for Mis. TTK Deepak & Co.) Shashi M. Kapija,
Sunita Ojha, Vikas Mehta, Dattatray Vyas, Mahima C. Shroff,
Chirag M. Shroff, B.V. Desai, Rahul Gupta, Reema Sharma,
Gaurav Agrawal, V.N. Raghupathy, Ravindra Keshavran Adsure,
Uday B. Dube and Kuldip Singh for the appearing parties. c
The,Judgment of the Court was delivered by
Dr. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in these appeals is to the judgment of the
.,. Bombay High Court which while holding that Regulation 33(7) of D
the Development Control· Regulations, 1991 (in short the
'Regulations') for the city of Mumbai as amended in the year
1999 does not suffer from any illegality, further observed that the
same applies only to dilapidated buildings of 'A' category which
satisfy the requirement and those declared prior to the monsoon E _.
of 1997 under 3rd proviso are covered under Regulation 33(7)' .
and are entitled to extra "Floor Space Index" (in short 'FSI'). It -~
also direct~d that certain site space has also to be provided.
3. The conclusions essentially are as follows:
F
"For the reasons stated above, we hold that the petition is
very much maintainable and we read the provisions of the .
first part of D.C. Regulation 33(7) to cover only the privately
owned dilapidated buildings which require reconstruction .
· and w,bere,.,:the cost of structural repairs exceeds the G
monetary requirement specified under Section 88(3) of
the MHAD Act (vis. Rs,1200/- per sq.meter as of now)._
In the circumstances, prayer (b) of the petition deserves.to
be accepted th2ugh not prayer (a-) and D.C. Regulation
33(7) will have to be read to mean that only the dilapidated · H
38 SUPREME COURT REPORTS [2008] 13 S.C.R.
A buildings of "A" category which satisfy this requirement
(and those declared unsafe prior to the monsoon of 1997
under 3rd proviso thereof) are covered under D.C.
Regulation 33(7) and entitled to extra FSI provided therein.
As far as the challenge to the side spaces being reduced
B to half as against what is otherwise provided, it was
)-
submitted that the provision is totally unreasonable. The
side spaces will now hardly be about 1.5 metres (about 5
feet) and for a building upto 24 metres, no separate fire
fighting arrangement will be insisted. This will almost mean
c a building of ground plus 7 floors. The fire engines will not
be able to go inside. In our view, independently on the
merits of this submission, it. is required to be accepted.
It was submitted by the respondents that in the erstwhile
buildings there was hardly any space between two such
D buildings and if one goes for a tower, i.e. above 24 metres,
obviously the side space will increase and the fire fighting
facilities will have to be provided. In our view, this is no
answer to the safety of the occupants with height of less
than 24 metres. We may not interfere into the reduction of
E the recreational space or not providing the parking facilities
though that will also create difficulties for the residents of
such buildings. Considering that there is so much of space
crunch, we may not interfere into the decision of the rule
makers in that behalf. However, having the side space of
F only 5 feet for buildings of the height less than 24 metres
(of ground plus 7 floors) is on the face of it something
difficult to substantiate. That provision of the D.C.
Regulations will have to be held as arbitrary, unreasonable
and violative of Article 14 of the Constitution. We have no
option, but to accept prayer (f) to this extent. The
G
requirement of reducing side spaces for the buildings to
be reconstructed is bad in law and they will have to be
provided with the minimum side spaces as required in the ....
buildings on small plots, vis. 3.6 metres.
H The Apex Court has observed in its order of 21st April,
JAYANT ACHYUT SATHE v. JOSEPH BAIN 39
) D'SOUZA & ORS. [DR. ARIJIT PASAYAT, J.]
2006 that no third party rights will be created and it further A
observed that it will be for the High Court to deal with that
aspect. This being the position, we direct, with a view not
to cause prejudice to the investors, that those projects of
reconstruction, which have already been approved, will
_, proceed as it is. However, the buildings not having the B
certificate of the cost of structural repairs exceeding Rs.
1200/- per sq. m. under section 88 (3) of the MHAD Act
will not be permitted reconstruction henceforth. For future,
the certificate under section 88 (3) of the MHAD Act, viz.
that the structural repairs cannot be carried out within the c
monetary limits specified therein will be mandatory
requirement whereafter if 70% of the occupants and the
landlord come together, the benefit under Regulation 33(7)
will be available and not otherwise. Similarly, in all such
buildings to be reconstructed, the side spaces will be
D
maintained at least as in the case of other buildings on
small plots vis. 3.6 metres."
4. The background facts in a nutshell are as follows:
The three writ petitioners (respondent Nos. 1, 2 and 3
herein) claiming to be public spirited citizens filed a writ petition E
before the Bombay High Court. The 151 petitioner is a former
Municipal Commissioner of Mumbai, who is also a former Chief
Secretary of the State of Maharashtra. The 2nd petitioner has
been a member of various committees concerning urban
development. The 3rd petitioner is a Civil Engineer by profession F
--- and for many years was an Executive Committee Member of
the Bombay Metropolitan Authority. He was also a _member of ,
the Slum Rehabilitation Committee constituted by the State of
Maharashtra.
G
The respondents in the writ petition were the State of
Maharashtra through the Secretary, Urban Development
). Department, Municipal Corporation of Greater Mumbai which
is the Planning Authority for the city of Mumbai under the
Maharashtra Regional and Town Planning Act, 1966 (in short
H
40 SUPREME COURT REPORTS [2008] 13 S.C.R.
A the 'Town Planning Act') whereunder the regulations are framed.
Respondent No.3 was a statutory authority constituted under
the Maharashtra Housing and Area Development Act, 1976 (in
short the 'Development Act'). The concerned authority is
Maharashtra Housing and Area Development Authority
B (MHADA). Respondent No.4 was the former Municipal )-
Commissioner of Mumbai whose report was amongst others
led to the amendment of the Regulations in the year 1999.
Several parties intervened in the matter. Two of them were the
property owners. One was the Property Owners' Association
C and one claimed to be a tenant in pre 1940 building. One of the
interveners was Property Redevelopers' Association. Intervener
No.6 was an Architect by profession who supported the petition
while others opposed the petition. Earlier, a Division Bench of
the High Court rendered a judgment on 17.10.2005. The Division
Bench accepted number of grievances and amongst others
0
appointed a few Committees to look into some such aspects
which according to it had relevance for the issues highlighted
in the petition. One of the interveners filed an appeal relatable
to Special Leave Petition(C) No.1376 of 2006 and others also
filed appeals. By order dated 14th July, 2006 this Court disposed
E of the appeals inter-alia with the following observations:
"The High Court has not dealt with the basic issues raised
in the petition, i.e. as to whether the amended Regulation
33(7) suffered from any infirmity. We, therefore, think it
F appropriate to direct the High Court to examine those
issues. The parties shall be permitted to place their
respective stands before the High Court. It is open to the
appellants to canvass before the High Court as to the non-
maintainability of the writ petitions. The High Court shall
appropriately deal with the same. It needs no re-iteration
G
that the High Court shall examine the challenge to
Regulation 33(7) as amended in 1999."
Therefore, this Court directed the High Court to deal with
· only that issue relating to the validity of the provisions and the
H maintainability of the writ petitions. Intervention applications had
JAYANT ACHYUT SATHE v. JOSEPH BAIN 41
D'SOUZA & ORS. [DR. ARIJIT PASAYAT, J.]
also been filed before this Court. These applications were also A
to be directed to be dealt with by the High Court.
The grievances of the petitioners as noted before the :-::~h
Court were as follows:
_, "The petitioners are concerned with the problem of B
congestion of the population in the island city of Mumbai.
The island area of the city covers the area from Colaba in
the South to Mahim and Sion in the North (which originally
consisted of eight islands before they were all linked). The
areas of suburbs and extended suburbs are not covered c
when one speaks of the island city. The existing
infrastructure in the island city, particularly with respect to
roads, water supply, sewage system, open areas and
gardens, is already over stretched and under extreme
strain. The petitioners point out that the island city has
D
'{
already reached the saturation point with respect to the
population that it can accommodate, which is not disputed
by any of the public authorities concerned. According to
the report entitled "Report on the Development Plan of
Greater Bombay, 1966", the total acreage of the island
city is 17, 388.83 acres and the ultimate population, which E.
it can accommodate, is 32 ..Slakhs. As of now, the existing
population of the_ island city is already in excess of this
figure of ultimate population. It is now estimated to be
33.4 lakhs. It is another matter that the population in the
_...,. suburbs is much more, but the area covered there is also F
much more than the island city. The petition is concerning
only the islar:id city.
There is no dispute whatsoever that the present pubic
- amenities are inadequate to cater to the present
G
- population. Hence, _accordJqg to the Petitioners, any cause
for the increase in the population in the island city has to
;>-.: be appropriately dealt with. Coupled with this deterioration
of the infrastructure in the islafld city, it is also a fact that
a very large number of buildings, i.e. more than 16,500
H
42 SUPREME COURT REPORTS [2008] 13 S.C.R.
A (16,502 according to one estimate) were constructed prior
to 1940 and are in the need of urgent repairs and in some
cases reconstruction. The State has taken it upon itself to
see to it that these buildings are repaired and, wherever
necessary, reconstructed and for that purpose, it created
B the Bombay Building, Repairs and Reconstruction Board
by passing the Bombay Building Repairs and
Reconstruction Board Act (Act No.XLVll of 1969). One of
the main reasons for this large number of unattended
buildings has been the freezing of the rent under the
c Bombay Rents, Hotel and Lodging House Rates Control
Act, 194 7 ("the Bombay Rent Act" for short). Rents
received by the landlords were found very much insufficient
for them to carry out repairs.
The Bombay Buildings, Repairs and Reconstruction Board
D Act was later on repealed and the activities under the Act
were taken over by the Maharashtra Housing and Area
Development Authority (MHADA) when the Maharashtra
Housing and Area Development Act (MHAD Act) was
passed in 1976. A cess was to be contributed by the
E tenants of the private buildings known as Mumbai Building,
Repairs and Reconstruction Cess under Section 82 of
the said Act. Lands and buildings owned by the Central
Government, State Government, Municipal Corporation
of Mumbai, Mumbai Port Trusts, lands and buildings
F vested in MHADA, lards and buildings of the Public Trusts
exclusively occupied for worship or educational purposes
and those vested in or leased to a cooperative society,
buildings exclusively in occupation of the owner, buildings
exclusively used for non-residential purposes and some
other properties as mentioned in section 83 were
G
exempted from this requirement of paying the cess. These
cessed buildings were divided into the following three
categories under section 84 of the MHAD Act.
Category "A" Buildings erected prior to 1/9/ 1940
H
JAYANT ACHYUT SATHE v. JOSEPH BAIN 43
> D'SOUZA & ORS. [DR. ARIJIT PASAYAT, J.)
Category "B" Buildings erected between 1/9/ 1940 and A
31/12/1950
Category "C" Buildings erected prior to 1/ 1/ 1951 and
30/12/1969
-•. It appears to be the common case that as of now as per B
the affidavit of the State Government in the present matter,
there are some 16502 buildings in "A" Category, 1491
buildings in "B" Category and 1651 buildings in "C"
Category.
Chapter VIII of MHAD Act provided for repairs and c
reconstruction of dilapidated buildings. Under section 88
from Chapter VIII of the MHADAct, Mumbai Housing and
Area Development Board was supposed to undertake
structural repairs of the buildings, which were in ruinous
condition and likely to deteriorate and fall. However, section D
88 (3) provides that where the cost of the structural repairs
exceed Rs.1200/- per sq. m., the Board may not consider
such buildings for repairs and issue a certificate to that
effect to the owner of the buildings and affix it on the building
for the information of occupiers and then proceed to take E
action as provided in this Chapter. Thereafter where the
occupiers were ready to contribute to the cost in excess
of Ps.1200/- per sq. metre, the Board may carry out the
structural repairs, for which a provision is made in section
89 of the MHAD Act. This will mean that oherwise the F
steps for reconstruction will be taken by acquiring the
property as provided in sections 91 and 92 of this Chapter.
Section 91 provides for reconstruction where a building
suddenly collapses or becomes inhabitate due to fire,
torrential rein or tempest or otherwise. Section 92 lays
G
down the procedure for acquisition where however a
building suddenly collapses."
~·
The High Court noted that there was no dispute that there
was hardly any progress in the matter of repairs and/or re-
construction by the procedure provided. Therefore, even in the H
44 SUPREME COURT REPORTS [2008] 13 S.C.R.
A year 1981 the Government appointed a Committee under one
Mr. Ajit Kerkar to consider the problems. The Committee
emphasized that there should be a shift from re-construction of
individual buildings to the re-development of the entire localities
and the formulation of a programme of urban renewal.
>- -
B The High Court noted that it was a common case that
MHADA found it difficult to put in adequate funds for acquisition
of properties for reconstruction under Chapter Vil I of the
Development Act and, therefore, Chapter VII I-A was introduced
in the said Act. The provisions of this Chapter have been stated
C to be notwithstanding what was provided in Chapter VIII as
stated in Section 103-8 of Chapter VII I-A. The provisions under
this Chapter were to operate when 70% of the occupiers came
together and approached the Government to acquire the
property. They were required to assure to contribute towards
· D acquisition and take steps since the landlords were not
cooperating and under the Scheme of this Chapter the
developed buildings were to be given FSI 2. These provisions
3lso did not receive adequate response.
'
On 25.3.1991 the Regulations were notified for greater
E Mumbai. Regulation 33(7) to which these cases relate provided
for reconstruction-or re-development of cessed buildings in the
island city by cooperative housing societies or of old buildings
belonging to the Corporation. The Regulation provided for old
consumed FSI or FSI 2 whichever is higher. This Regulation
F was further amended on 25.1.1999 to provide the FSI of 2.5 on
the gross plot area or the FSI required for rehabilitation of the
existing tenants plus incentive FSI as specified in Appendix Ill
to the Regulations. This amendment was brought about after a
report was submitted by Study Group under the Chairmanship
G of Shri D.M. Sukhtankar, former Municipal Commissioner who
was respondent No.4 in the writ petition. The Study Group had
submitted its reply to the State Government in July 1997 leading
to amendments in the year 1999. The Regulation was further
amended by adding a new clause w.e.f. 27th February, 2004
H whereby apart from the Corporation buildings, those of
JAYANT ACHYUT SATHE v. JOSEPH BAIN 45
} D'SOUZA & ORS. [DR. ARIJIT PASAYAT, J.]
Department of Police, Police Housing Corporation, Jail and A
Home Guard of Government of Maharashtra constructed prior
to 1940 were also covered.
The main grievance in the writ petitions was that there
was gross misuse of the amended Regulation 33(7) when
·-'< applied to private buildings with which the petitions were B
concerned. They submitted that taking shelter under the
amended Regulation 33, there has been misuse by pulling down
buildings which are otherwise in good conditions merely
because they were constructed prior to 1940. It was further
submitted that there are no guidelines under the Regulations to c
lay down as to who are the tenants or occupiers who are eligible
to be protected under the Regulations. Numbers of instances
were cited. It was submitted that builders and developers and
people with money and muscle power were dishousing genuine
tenants/occupiers. The numbers of tenants/occupiers were D
·v being inflated by creating bogus tenancies to claim extra FSI.
The consequence, it was submitted, was that there was going
to be unjustified and tremendous increase in the population in
the island city causing further strain on its infrastructure. It was
their case that the extra FSI as per the amended Regulation E
was meant for the reconstruction of unsafe and dilapidated
buildings only and not for all the 16502 'A' category cessed
buildings. The dilapidated buildings are supposed to be just
about 10% of them. Accordingly, there was a prayer to prevent
strong and sound cessed buildings which are not in danger of F
.,...,
collapse to be not pulled down and Regulation 33(7) should be
declared to be applicable only to those cessed buildings which
are dilapidated and are in unsound and in unsafe condition.
Challenge was to the reduction in the marginal open space
requirement for the buildings under Regulation 33(7) read with G
Appendix Ill as provided for the buildings under other regulations
and ,it was prayed that same should be also struck down.
>-
Stand of the respondents apart from questioning the
maintainability of the writ petitions, the locus standi of the writ
H
46 SUPREME COURT REPORTS [2008] 13 S.C.R.
A petitioners, was that Regulation 33(7) as amended was
applicable to all 'A' category cessed buildings which are
constructed prior to 1940. Whenever 70% of the tenants/
occupiers of such buildings came together alongwith their
landlords for redevelopment of their properties, they were entitled
B to get extra FSI. This will provide houses with minimum 225
sq.ft. free of cost to all tenants in these pre-1940 buildings.
Many of them are otherwise cramped in still smaller tenements.
The benefit could not be restricted only to the old and dilapidated
buildings. There was no such restriction contemplated under
c Regulation 33.
The High Court while upholding the validity of Regulation
33(7) accepted some of the prayers of the writ petitioners which
are led to the filing of the appeals.
5. Stand of appellants in these appeals is that the amended
D
Regulation 33(7) came into force on 25th January, 1999 after
inviting suggestions/objections from the public at large under
Section 37 of the Town Planning Act, 1966 and after considering
the same. Neither any suggestions nor any objections were
filed by the writ petitioners nor did they challenge the said
E amended D.C. Regulation 33(7) from 1999 till October, 2004.
In other words there was a delay of nearly 6 years.
6. It is submitted by learned counsel for the appellants that
Public Interest Litigation as claimed to have been filed is not
F maintainable. Such a petition lies at the instance of the a third r
party only when it is shown that the affected person is unable to
approach the Court. It would not lie if a section of the public was
not interested in the cause. The writ petitioners did not file any
objections or suggestions when statutory notice was issued.
Therefore, they could not have invoked Article 226 of the
G
Constitution and to pray that the High Court should consider
their suggestions and restrict the regulation to old and
dilapidated buildings beyond economic repair as set out in
Section 88 of the Development Act or to consider impact on
environment or infrastructure due to unlimited FSI or to restrict
H
1 JAYANT ACHYUT SATHE v. JOSEPH BAIN 47
; !- D'SOUZA & ORS. [DR. ARIJIT PASAYAT, J.]
the FSI given to MHADA. They, therefore, seek to substitute the A
High Court for the statutory authorities. This is not permissible.
The affected parties to any dispute on the PIL are essentially
the property owners and the persons against whom serious
allegations of alleged misuse of the regulation were made.
,_ These persons were not impleaded. It is a settled position in B
law that in cases of public interest litigation the principles of
natural justice apply and any order passed without impleading
the affected parties would be bad. The prayer was to amend
the Regulations as framed. This prayer could not have been
accepted. As per the Kerkar Report the FSI permissible to the c
Board ranged between 3. 19 and 5.88. By the impugned
judgment the applicability of Regulation 33(7) was restricted to
dilapidated buildings, the cost of repair which was beyond the
statutory time limit fixed under Section 88 of the Development
Act. Such a course is impermissible as it is contrary to the
D
intention of the delegated legislation in view of the clear use of
the expression "subject to the provision of MHADA Act" which
has been used in the directives issued under Section 154 of
Town Planning Act in January 1989. Notification dated 9.3.1989,
DC Regulation of 1991 and the amendments made in 1994 to
the DC Regulations of 1991 were deleted. The expression "old E
and dilapidated cessed buildings" have been used in the
Government Policy on reconstruction of old buildings of
12.11.1984 and in the letter dated 20.3.1987 regarding
Regulations of 1991, and the amendments made in 1994 to the
.... Regulations of 1991. The expression "old and dilapidated F
cessed building" had been used in the Government Policy on
Reconstruction of old buildings of 12.11.1984 and in the letter
dated 20.3.1987 regarding Regulations, and the said
expression is not found in Regulation 33(7). It has been
consistently held that landlord need not wait for th~ building to G
get dilapidated as he is entitled to re-construct to augment his
income.
7. It is pointed out that the historical background has great
relevance also. With the advent of the Second World War in
H
48 SUPRENJE COURT REPORTS [2008] 13 S.C.R
A 1939, rents in Bombay were frozen at 1939 levels, initially under
the Bombay Rent Restriction Act, 1939 and subsequently at
1940 levels under the Bombay Rent Act 194 7. As a resuit of the
freezing of rents on the one hand and increase in prices of
building materials, wages of workers etc. on the other, it was
B impossible for the landlords to carry out repairs to the buildings.
This led to collapse of some buildings. To meet this situation,
the Bombay Buildings Repairs and Reconstruction Board Act,
1969 was enacted on 1st October 1969. It was a temporary Act
for ten years. It was applicable only to the island city of Mumbai
c and not to the suburbs. The buildings in Mumbai were
categorized into three groups depending on their year of
construction viz.,
Category "A" Buildings constructed 16,502 buildings.
prior to 1/09/1940
D
Category "B" Buildings constructed - 1,491 buildings.
between 1/09/1940
and 31/12/1950
Category "C" Buildings constructed - 1,651 buildings.
between 1/01/1951
E
and 30/12/1969
Total 19,644 cessed
buildings
F 8. A cess was levied on these buildings and the Repair
Board established under the said Act, had taken up the
responsibility of repairing the said buildings. In case the repairs
were beyond economic levels, such buildings were to be
acquired by the Board and reconstructed/ redeveloped.
G 9. The said 1969 Repairs Act was replaced by the
Development Act, which consolidated various Acts, including
the said 1969 Repairs Act, which was inserted into Development
Act as Chapter VIII with modifications. Collection of Cess
continued under the Development Act. Basic otJ.jective of
H Chapter VIII of said Act was to carry out structural repairs to the
JAYANT ACHYUT SATHE v. JOSEPH BAIN 49
D'SOUZA & ORS. [DR. ARIJIT PASAYAT, J.]
cessed buildings and if they were beyond economic repairs to A
acquire and reconstruct. This scheme. of reconstruction/
redevelopment failed. Thereafter in 1986, DevelopmentActwas
amended by incorporating ChapterVlllA by which 70% of the
occupiers of "A" category cessed builaings could come together
and acquire the property through Development Act for s
"reconstruction" on paying only 100 months net rent to the owner
[the rents were frozen at 1940 levels]. The owner had no role to
play in this scheme. The occupiers could acquire the building,
demolish the building and reconstruct it. This scheme of
reconstruction/ redevelopment also failed. The Government c
Policy for reconstruction/redevelopment from 12th November
1984 to 23rd November 1991 granting FSI 2 or consumed FSI
whichever is more, to the co-operative societies of the owners
and occupiers also failed.
10. Therefore, on 23rd March 1991, as part of the Town D
Planning Act and not as part of Development Act, Regulation
No.33 (7) was brought into force in 1991.
11. Under Regulation 33(7), in 1991 the FSI was 2 or the
consumed Floor Space Index of the existing old building,
whichever is more. There was no incentive FSI. The minimum E
carpet area for rehabilitating the tenants/occupiers in the new
building was 180 sq, ft. minimum upto a maximum of 735 sq.
ft. The redevelopment was to be "subject to the provisions of
''
the said Act" i.e. Development Act.
F
12. In 1994, DC Regulation 33(7) was amended to make
the FSI 2 on the gross plot area or the consumed Floor Space
Index, that is, the total built-up area of the existing old building,
whichever is more. This was also "subject to the provisions of
the said Act" i.e. Development Act. The said amendment to G
D.C. Regulation 33 (7) in 1994, however failed to achieve the
desired object. In 1996, the Maharashtra Government therefore
constituted a Committee popularly known as "the Sukhtankar
Committee", which committed comprised of members from ail
affected groups including tenants, landlords, bureaucrats, H
50 SUPREME COURT REPORTS [2008] 13 S.C.R.
A experts, etc. It was a very broad-based Committee. The terms
of reference inter alia included how the reconstruction of the old
cess buildings could be speeded up.
13. After detailed deliberations held over a large number
of meetings, in July, 1997, the Sukhtankar Committee submitted
8 its report to the Government. It was noted in the said Report that
the life of most of the buildings in Category "A" had nearly come
to an end and instead of repairing such buildings periodically,
their reconstruction would be the only far sighted solution. It was
felt that without giving incentive FSI nothing could be achieved
C in respect of reconstruction and redevelopment of the old
buildings.
14.Therefore, amendment was made on 25•h .January 1999
to Regulation 33(7), under the provisions of the Town Planning
Act, whereby for reconstructing "A" category cessed buildings,
0
FSI of 2.5 was granted on the gross plot area or the FSI required
for rehabilitating the tenants plus 50% to 70% incentive FS],
(as specified in Appendix ill] whichever is more. The words
"subject to provisions" of Development Act were expressly
deleted.
E
15. Further under the 1st proviso to the amended Regulation
33(7), with the prior approval of the Government, MHADA and
the Corporation would be eligible to get additional incentive
F$1 over the otherwise permissible FSI as specified in Annexure
F 111 of these Regulations without any cap. r
16. The history of the Regulation 33(7) framed under the
Town Planning Act, 1966 for reconstruction and redevelopment
and the scheme for reconstruction/ redevelopment under
Development Act shows that there are separate schemes under
G two separate Acts, that are self contained anc one cannot
borrow the provisions from one Act and incorporate them into
the other, without upsetting the scheme of Regulation 33(7) ""
read with Appendix Ill thereof.
17. The scheme under Regulation 33(7) involves landlords
H
52 SUPREME COURT REPORTS [2008) 13 S.C.R.
A 22. Learned counsel for MHADA, State and the
Corporation pointed out that there was no challenge in the writ
petitions to the legality of Regulation 33(7) on the ground of
either Articles 14 or 21 of the Constitution. It is urged that nothing
can be read into Regulation 33(7). Reference is also made to
B the Development Act, Appendix Ill dealing with the procedure >
and the reconstruction Board.
23. It is pointed out that 3.6 meters space as fixed by the
High Court is not practicable. No basis has been indicated for
fixation of such apace. It has also been pointed out that many
C constructions already mcide shall be required to be demolished
if the order is followed. It is further pointed out that minimum FSI
open space was always there. Reference is made to the situation
in 1984, 1987, 1989 and 1991. Clause (6) in the old Appendix
continued till 2004 and there was no challenge earlier. It is
D pointed out that there cannot be any fixed norms to satisfy
whether the building is dilapidated or not.
24. Firstly, the scope of judicial review in matters of policy
need to be looked into. In Ba/co Employees Union (Regd.) v.
E Union of India and Ors. (2002 (2) sec 333} it was observed
as follows:
"34. Applying the analogy, just as the court does not sit
over the policy of Parliament in enacting the law, similarly,
it is not for this Court to examine whether the policy of this
F disinvestment is desirable or not. Dealing with the powers
of the Court while considering the validity of the decision
taken in the sale of certain plants and equipment of the
Sindri Fertilizer Factory, which was owned by a public
sector undertaking, to the highest tenderer, this Court in
t
Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India
G
sec 568 at p.584, while upholding the decision to sell,
observed as follows: (SCC para 35}
"We certainly agree that judicial interference with the
administration cannot be meticulous in our
H Montesquien system of separation of powers. The
JAYANT ACHYUT SATHE v. JOSEPH BAIN 53
D'SOUZA & ORS. [DR. ARIJIT PASAYAT, J]
Court cannot usurp or abdicate, and the parameters A
of judicial review must be clearly defined and never
exceeded. If the directorate of a government company
has acted fairly, even if it has faltered in its wisdom,
the court cannot, as a superauditor, take the board
.... of directors to task. This function is limited to testing B
whether the administrative action has been fair and
free from the taint of unreasonableness and has
substantially complied with the norms of procedure
set for it .by rules of public administration."
36. In State of MP v. Nandla/ Jaiswal the change of the c
policy decision taken by the State of Madhya Pradesh to
grant licence for construction of distilleries for manufacture
and supply of country liquor to existing contractors was
challenged. Dealing with the power of the Court in
...,, considering the validity of policy decision relating to D
economic matters, it was observed at pp.605-06 as
follows: (SCC para 34)
"34. But, while considering the applicability of Article
14 in such a case, we must bear in mind that, having
regard to the nature of the trade or business, the E
Court would be slow to interfere with the policy laid
down by the State Government for grant of licences
for manufacture and sale of liquor. The Court would,
in view of the inherently pernicious nature of the
commodity allow a large measure of latitude to the F
. State Government in determining its policy of
regulating, manufacture and trade in liquor. Moreover,
the grant of licences for manufacture and sale of
liquor would essentially be .a matter of economic
policy where the Court would hesitate to intervene G
and strike down what the State Government has done,
unless it appears to be plainly arbitrary, irrational or
mala fide. We had occasion to consider the scope
of interference by the Court under Article 14 while
dealing with laws relating to economic activities in H
54 SUPREME COURT REPORTS [2008] 13 S.C.R.
A R.K. Garg v. Union of India. We pointed out in that
case that laws relating to economic activities should
be viewed with greater latitude than laws touching
civil rights such as freedom of speech, religion, etc.
We observed that the legislature should be allowed
B some play in the joints because it has to deal with
complex problems which do not admit of solution
through any doctrinaire or strait-jacket formula and
this is particularly true in case of legislation dealing
with economic matters, where, having regard to the
c nature of the problems required to be dealt with,
greater play in the joints has to be allowed to the
legislature. We quoted with approval the following
admonition given by frankfurter J in morey v. Doud:
'In the utilities, tax and economic regulation cases,
D there are good reasons for judicial self-restraint if
not judicial deference to legislative judgment. The
legislature after all has the affirmative responsibility.
The courts have only the power to destroy, not to
reconstruct. When these are added to the complexity
E of economic regulation, the uncertainty, the liability
to error, the bewildering conflict of the experts, and
the number of times the Judges have been overruled
by events - self-limitation can be seen to be the
path to judicial wisdom and institutional prestige and
F stability.' ,_
, What we said in that case in regard to legislation relating
to economic matters must apply equally in regard to
. executive action in the field of economic activities, though
the executive decision may not be placed on as high a
G pedestal as legislative judgment insofar as judicial
deference is concerned. We must not forget that in
complex economic matters every decision is necessarily """ ,
empiric and it is based on experimentation or what one
may call 'trial and error method' and, therefore, its validity
H cannot be tested on any rigid 'a priori' considerations or
JAYANT ACHYUT SATHE v. JOSEPH BAIN 55
D'SOUZA & ORS. [DR. ARIJIT PASAYAT, J.)
.
+
on the application of any strait-jacket formula. The Court A
must while adjudging the constitutional validity of an
executive decision relating to economic matters grant a
certain measure of freedom or 'play in the joints' to the
executive. The problem of Government' as pointed out by ·
... the Supreme Court of the United States in Metropolis B
T~eater Co. v. State of Chicago:
'are practical ones and may justify, if they do not
require, rough accommodations, illogical, it may be,
and unscientific. But even such criticism should not
be hastily expressed. What is best is not discernible, c
the wisdom of any choice may be disputed or
condemned. Mere errors of Government are not
subject to our judicial review. It is only its palpably
arbitrary exercises which can be declared void'.·
D
The Government, as was said in Permian Basin Area
Rate cases, is entitled to make pragmatic adjustments
which may be called for by particular circumstances. The
Court cannot strike down a policy decision taken by the
State Government merely because it feels that another
policy decision would have been fairer or wiser or more E
scientific or logical. The Court can interfere only if the
policy decision is patently arbitrary, discriminatory or mala
fide. It is against the background of these observations
and keeping them in mind that we must now proceed to
...... deal with the contention of the petitioners based on Article F
14 of the Constitution.
37. A policy decision of the Government whereby vali,dity ·
of contract entered into by Municipal :council with the.
private developer for construction of a commercial
G
complex was impugned, came up for consideration in GB.
Mahajan v. Jalgaon Municipal Council and it was
observed at p.104 as follows: (SCC para 22)
"The criticism of the project being 'unconventional'
does not add to or advance the legal contention any H
56 SUPREME COURT REPORTS [2008] 13 S.C.R
A further. The question is not whether it is
unconventional by the standard of the extant
practices, but whether there was something in the
law rendering it impermissible. There is, no doubt, a
degree of public accountability in all governmental
B enterprises. But, the present question is one of the
extent and scope of judicial review over such matters.
With the expansion of the State's presence in the
field of trade and commerce and of the range of
economic and commercial enterprises of
c Government and its instrumentalities there is an
increasing dimension to governmental concern for
stimulating efficiency, keeping costs down, improved
management methods, prevention of time and cost
overruns in projects, balancing of costs against
timescales, quality control, cost-benefit ratios etc. In
D
search of these values it might become necessary
to adopt appropriate techniques of management of
projects with concomitant economic expediencies.
These are essentially matters of economic polic:;y
which lack adjudicative disposition, unless they violate
E constitutional or legal limits on power or have
demonstrable pejorative environmental implications
or amount to clear abuse of power. This again is the
judicial recognition of administrator's right to trial and
error, as long as both trial and error are bona fide
F and within the limits of authority."
38 To the same effect are the observations of this Court
in Peerless General Finance and Investment Co. Ltd. v.
Reserve Bank of India in which Kasliwal, J. observed at
p. 375 as follows: (SCC para 3'1)
G
"31. The function of the Court is to see that lawful
authority is not abused but not to appropriate to itself
the task entrusted to that authority. It is well settled
that a public body invested with statutory powers must
H take care not to exceed or abuse its power. It must
JAYANT ACHYUT SATHE v. JOSEPH BAIN 57
D'SOUZA & ORS. [DR. ARIJIT PASAYAT, J.]
keep within the limits of the authority committed to it. A
It must act in good faith and it must act reasonably.
Courts are not to interfere with economic policy which
is the function of experts. It is not the function of the
courts to sit in judgment over matters of economic
policy and it must necessarily be left to the expert B
bodies. In such matters even experts can seriously
and doubtlessly differ. Courts cannot be expected to
decide them without even the aid of experts."
39. In Premium Granites v. State of TN. while considering
the Court's powers in interfering with the policy decision, C
it was observed at p.
"54. It is not the domain of the Court to embark upon
unchartered ocean of public policy in an exercise to
consider as to whether a particular public policy is
0
wise or a better public policy can be evolved. Such
exercise must be left to the discretion of the executive
and legislative authorities as the case may be."
92. In a democracy, it is the prerogative of each elected
Government to follow its own policy. Often a change in E
Government may result in the shift in focus or change in
economic policies. Any such change may result in adversely
affecting some vested interests. Unless any illegality is
committed in the execution of the policy or the same is
contrary to law or mala fide, a decision bringing about F
,.,.,. change cannot per se be interfered with by the Court."
25. It is to be noted that if different language is used in the
same section or in different sections, the legislative intent is
that they are intended to lead to different results and there is a
conscious intent. (See the Member Board of Revenue vs. G
Arthur Paul Benthall (1955 (2) SCR 842, 845 846.) Similar
was the view expressed in Commissioner of Income Tax, New
r- Delhi (now Rajasthan) v. Mis East West Import and Export (P)
Ltd. (now known as Asian Distributors Ltd.), Jaipur (1989 (1)
sec 760). It was inter alia observed as follows: H
58 SUPREME COURT REPORTS [2008] 13 S.C.R.
A "7. The Explanation has reference to the point of time at
two places: the first one has been stated as "at the end of
the previous year" and the second, which is in issue, is "in
the course of such previous year". Counsel for the revenue
has emphasised upon the feature that in the same
B Explanation reference to time has been expressed
differently and if the legislative intention was not to
distinguish and while stating "in the course of such previous
year" it was intended to convey the idea of the last day of
the previous year, there would have been no necessity of
c expressing the position differently. There is abundant
authority to support the stand of the counsel for the revenue
that when the situation has been differently expressed the
legislature must be taken to have intended to express a
· different intention."
D 2.6. It is of significance to note that in the writ petitions
filed there was no challenge to Regulation 33(7). Only incentive
FSI was challenged. So far as Regulation 33(7) is concerned,
there will be no acquisition in Chapter VIII. Stress is on spending
money out of the funds and of acquisitions. Chapter VIII-A
E essentially deals with occupiers. Acquisition and the Board's
role is that of certification. Under Regulation 33(7) the occupier
and the landlord are involved. There is no acquisition and there
is no government fund utilized. There is a Transferable
Development Right (in short 'TOR') and the concept of incentive
F FSI. I>
27. It is the case of the appellant that the TOR is utilized
to recover the money spent for subsidizing other constructions.
28. Certain other aspects also need to be noted.
G 29. The provisions relating to buildings which have been
declared unsafe are specifically covered by Regulation 33(6)
·and reconstruction by MHADA is covered by Regulation 33(9).
~
When the situation has been differently expressed in different
sections, the legislature must be taken to have intended to
H express a different intention.
JAYANT ACHYUT SATHE v. JOSEPH BAIN 59
D'SOUZA & ORS. [DR. ARIJIT PASAYAT, J.]
30. A survey conducted by the Corporation in 1980-81 A
showed that 30,237 buildings would have crossed their life
span by 1996. The Kerkar Committee report also recorded
that the vast majority of the buildings would have ,J be
reconstructed. The report on the Development Plan for Greater
Bombay showed that in 1981, 5,82,200 tenements were B
required to house the natural growth of population.
31. In 1991 nearly 73% of the households occupied one
room tenements -vertical slums; 18% occupied two rooms i.e.
most of the persons - more than 90% lived in small areas.
Those occupying large areas constitute 2.7% only. Between C
1961 and 1991, the number of households increased to
20,88,000. Most of the tenements are of 100 to 120 square
feet area only. ·
32. It is thus clear that the policy was to enhance the quality D
·of the lives of those living in such poor conditions by increasing
-the living space to nearly double. This is to be contrasted with
the need to give a better lifestyle to those who can afford it
namely those who can afford the time to live a leisurely life. If
such people have to undergo some hardships, the policy cannot
be faulted especially when they constitute a minority. E
33. In interpreting a statute, the meaning of particular words
is to be found not so much in a strict etymological propriety of
language, nor even in popular use, as in the subject or occasion
on which they are used and object that is intended to be attained. F
34. The writ Petitioners did not challenge the validity of
Regulation 33(9) pertaining to reconstruction by MHADA or
Regulation 33(7) in so far as it applies to the reconstruction by
the Government or the Municipal Corporation even though the
FSI is the same. The proviso to Regulation 33(7) allows G
Government, MHADA/Corporation to get even more than the
FSI specified in Appendix Ill.
35, Most of the buildings constructed prior to 1940 (17,490
buildings) were constructed prior to 1905. Most of the buildings H
60 SUPREME COURT REPORTS [2008] 13 S.C.R.
A have outlived the period of their survival by 1979. 80% were
occupying one-room tenements. [See: Vivian Joseph Ferreira
and Anr. v. The Municipal Corporation of Greater Bombay
and Ors. 1972 (1) SCC 70 (paras 9, 10 and 11).
36. In Mahadeolal Kanodia v. The Administrator General
B of West Bengal (1960 (3) SCR 578), it was held that rules of
grammar require that an adjectival phrase qualifies the
proximate substance. [pages 584-585]. Applying that rule, the
term "which attracts the provisions of MHADAAct, 1976" could
only qualify the proximate substance "cessed building of A
C category in Island city" and nothing more.
37. It would be seen that with respect to reconstruction of
buildings both Chapters VIII and VlllA require the building to be
acquired by the Board for the reconstruction in terms of Sections
92 and 103B (3). This is not the case with Regulation 33 (7).
0
38. Appendix Ill casts several duties on the Board for the
working of Regulation 33 (7) as inter alia:
(a) Clause 3 requires certification of the occupiers and
irrevocable consent to be certified by the Board;
E
(b) Clause 4 requires that the tenements have to be
allotted to the occupiers as per the list certified by
the Board;
(c) Clause 11 requires the FSI as in Regulation 33 (7)
F should be allowed only after the Board is satisfied
that the redevelopment proposal satisfies all the
conditions to be eligible for the benefits under the
Regulations.
G 39. The challenge to the restriction offive feet open space
(1.5 metres) is hopelessly delayed and barred by time as inter
alia:
(i) the requirement of limiting the open space to five
feet has been in existence since 1984 and was also
H a part of Development Control Regulation of 1991.
JAYANT ACHYUT SATHE v. JOSEPH BAIN 61
D'SOUZA & ORS. [DR. ARIJIT PASAYAT, J.]
40. When the Board reconstructs a building it covers almost A
the entire land save for five feet open space. The Sukthankar
Committee also recommended that the open space should be
5 feet. The challenge to the restriction of five feet open space
has been made on the basis that the open spaces are already -
-j
too low and that the DC Regulations made it even less. This is B
a contention which was rejected by this Court in Bombay Dyeing
& Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group
and Ors. (2006) 3 SCC 434) at paras 297 & 298.
41. The State and MHADA filed affidavits in CA 2970 of
2006 supporting the appeals. In the affidavit dated 12th March C
filed by the State, it was set out that :
(i) The Tour Planning Act does not define category A
cessed buildings and the reference to the provisions
of Development Act were only to explain what the D
term "category A cessed buildings" meant.
(ii) By and large the old buildings constructed prior to
1940 were built when there was no concept of FSI
and the open spaces were at times only 2 to 3 feet.
(iii) The width of most of the plots was about 30 feet and E
requiring a 12 feet open space to be left would mean
that there would be no scope to redevelop the
building.
(iv) Where a building was in the set back area as per the F
development plan, the land covered by the set back
area had to be given to the authorities and the road
was widened.
42. In the affidavit dated 17th March 2007 filed by MHADA,
it was set out that: G
(i) Reference to Development Act is with reference to
the definition of cessed buildings which is not found
under the Town Planning Act or the DC Regulations
and is found only in the Development Act.
H
62 SUPREME COURT REPORTS (2008] 13 S.C.R.
A (ii) A perusal of Regulation 33 (7) shows that the
emphasis is on pre 1940 buildings and nothing more.
(iii) Confining Regulation 33 (7) to only the private
,.. buildings and not the Government buildings would
make the Regulation arbitrary.
B )
(iv) Under Regulation 33 (10) the open space is 5 feet
and to insist on 12 feet as per the High Court judgment
it would make the same unreasonable and prevent
even buildings which are on the verge of collapse
c from being redeveloped.
43. Above being the position, the inevitable conclusion is
that the High Court was not justified in reading additional
requirements into Regulation 33(7) after holding the same to
be valid. The appeals are allowed but in the circumstances with
D no order as to costs.
44. In view of the order passed in Civil Appeal No.2970/
2006 and other connected appeals, no order is necessary to
be passed in contempt petition.
E N.J. Appeal allowed.
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