PRATIBHA CO-OPERATIVE HOUSING SOCIETY LTD.versusSTATE OF MAHARASHTRA AND ORS.

         PRATIBHA CO-OPERATIVE HOUSING SOCIETY LTD.
                                                                                 A
                         AND ANR.
                                         v.
                  STATE OF MAHARASHTRA AND ORS.

                                   MAY 9, 1991
                                                                                 B
               [N.M. KASLIWAL AND M.M. PUNCHHI, JJ.]

           Bombay Municipal Corporation Act-Housing Society-Viola-
      tion of building laws-Rule 51 violation-Demolition ordered-
      Whether valid.
-j.
             The appellant Co-operative Housing Society Ltd. made some unau- C
       thorised constructions in a 36 storeyed building. The Bombay Munici-
       pal Corporation issued a show catise notice calling upon the society to
       show cause as to why the upper eight floors of the building should not be
      'liemolished so as to limit the development to the permissible Floor
       Space Index (F .S.I.) since the additional Floor Space Index to the extent O
       of 2773 sq. mts. was gained by the appellant. The appellants submitted
       a reply to the show-cause notice. The Administrator of the Municipal
       Corporation made an order on 21st September, 1984 requiriag the
       appellant to demolish 24,000 sq. ft. on the eight upper floors of the
       building on the basis of 3000 sq. ft. on each floor. The Administrator as
       well as the State Government dismissed the representation and appeal E
       by the appellant. So the appellant ftled a writ petition in the High Court
       which was also dismissed with the observation that the appellant be
       given a choice to reduce the construction upto permissible limit by any
       alternative proposal within the four corners of the rules and regulations
       within one month from 28th October 1985 the Municipality may
       consider.                                                                  F

            The appellant made application to the Municipal Corporation
      giving several alternative p,roposals on 21st November 1985. But it also
      preferred a special leave petition before this court against the High
      Court Judgment. The special leave petition was dismissed on January
      17, 1986. The appellants alleged that they submitted another proposal to G
      the Municipal Corporation on 17th February, 1986 and a meeting for
      hearing alternative proposals was fixed up by the Municipal Commis-
      sioner and put forward its case in support of the new proposals and the
      Municipal Commissioner said he would consider the proposals and take
      decision. On 27th December 1988 the appellant w·rote a letter to the
      Municipal Commissioner to consider the alternative proposals i.e. of H

                                         745
    746                    SUPREME COURT REPORTS              [1991] 2 S.C.R.

A   vertical demolition of the building instead of demolishing the eight
    upper fioors. In January, 1989 the officers of the corporation agreed
    that demolition can be made vertically so as to bring the entire con-
  . struction within the permissible Floor Space Index where as the work of
    demolition of upper eight fioors of the building were entrusted to a
B company by the Municipal Commissitiner. So the appellant again filed a
    writ in the High Court. It was dismissed by the Single Jndge as well as
    by the Division Bench dated Sth March, 1990.

         The appellants came by Special Leave Petition in this Court; The
    main grievance of the appellant being that vertical demolition proposal
    was not considered. lnspite of orders of this Court in this regard to the
C   Mnnicipal Corporation no agreeable solution could fructify. The pro-
    posal was examined by the Municipal Commissioner but rejected on
    13th November, 1990 and submitted the detailed report to this Court.

          Dismissing the petition the Court
D
          HELD: The appellant bad made illegal constructions in violation
    of Floor Space Index to the extent of more than 24000 sq. ft. The
    decision taken by the Municipal Commissioner does not suffer from any
    want of jurisdiction nor is violative of any law or rules. It is well settled
    that the High Court under Article 226 of the Constitution is not an
E   appellate Court on the administrative decision taken by the authorities.
    Since the tendency of raising unlawful constructions and unauthorised
    encroachments is increasing in the entire country and such activities are
    required to be dealt with by ill'm bands. Such unlawful constructions
    are against public interest and hazardous to the safety of occupiers and
    residents of the multistoreyed buildings. [749F, 7SOB, E·F]
F
          This case should be a pointer to all the builders that making of
    unauthorised construction never pays and is against the interest of the
    society at large. The rules, regulations and by laws are made by the cor·
    porations or development authorities taking in view the larger public
    interest of the society and it is the bounden duty of the citizens to obey
G   and follow such rules which are made for their own benefits. [750H-751B]

          CIVIL APPELLATE JURISDICTION: Special Leave Petition
    (Civil) No. 5383 of 1990.
                                                                  •
         From the Judgment and Order dated 9.3.1990 of the Bombay
H   High Court in Appeal No. 231of1990 in W.P. No. 3016 of 1989.
HOUSING SOCIETY v. STATE OF MAHARASHTRA [KASLIWAL, J.]              747

      K.K. Venugopal, G.L. Sanghi, Sudhir Shah and P.N. Misra for
                                                                           A
the Petitioners.

    K.K. Singhvi, N.B. Shetye, D.N. Mishra and A.S. Bhasme for the
Respondents. - ··

     The Judgment of the Court was delivered by                            B

      KASLIWAL, J. This petition under Article 136 of the Constitu-
tion of India is directed against the order of Bombay High Court dated
9th March, 1990.

      Facts necessary and shorn of details are given as under. Pratibha
Cooperative Housing Society Ltd. (hereinafter referred to as 'the c
Housing Society') made some unauthorised constructions in a 36
storeyed building in a posh and important locality of the city of
Bombay. The Bombay Municipal Corporation issued a showcause
notice dated 7th August, 1984 calling upon the Housing Society to
showcause within 7 days as to why the upper eight floors of the build- D
ing should not be demolished so as to limit the development to the
permissible Floor Space Index (F.S.I.). In the notice it was stated that
additional F.S.I. to the extent of 2773 sq. mts. was gained by the
Housing Society and that the construction work had already reached
36 floors and that on the basis of the actual area of the building, the
upper eight floors were beyond the permissible F.S.I. limit and as such E
were required to be removed. The Housing Society submitted a reply
to the showcause notice by their letter dated 13th August, 1984. The
Administrator of the Bombay Municipal Corporation made an order
on 21st September, 1984 requiring the Housing Society to demolish
24,000 sq. ft. on the eight upper floors of the building on the basis of
3000 s(j. ft. on each floor. The Housing Society made a representation F
but the same was dismissed by the Administrator by order dated 31st
October, 1984. An appeal submitted by the Housing Society was also
dismissed by the State Government on 7th October, 1985. The Hous-
ing Society then filed a writ petition No. 4500 of 1985 in the High
Court. A Division Bench of the High Court dismissed the writ petition
on 28th October, 1985. However, the High Court while dismissing the G
writ petition also observed as under:

           "It W02_ld, however, be fair and just in the circumstances of
           the case to give a choice to the society to reduce the con-
           struction up to permissible limit or whatever other method
           they can think of. It is of course for the society to come      H
    748                   SUPREME COURT REPORTS            I1991] 2 S.C.R.
                forward with a proposal in that behalf. We therefore direct
A
                that in case the society comes with any such alternative
                proposal within the four corners of the rules and regula-
                                                                                   •
                !ions within one month from today the Municipality may        -~


                consider."

B The case of the Housing Society is that in pursuance to the said order it
  submitted application to the Municipal Corporation giving several
  alternative proposals on 21st November, 1985. It may be noted.at this
  stage that the Housing Society had preferred a special leave petition
  No. 17351 of 1985 before this Court against the judgment of the High         ~
  Court dated 28th October, 1985 and the said special leave petition was
  dismissed by this Court on 17th January, 1986. Further allegation of
c the Housing Society was that it submitted another proposal to the
  Municipal Corporation on 17th February, 1986 and thereafter wrote to
  the Municipal Council on 14th August, 1986 to consider their altema-
  tive proposals. A similar letter was also written to the Chief Minister
  of Maharashtra. On 29th August, 1986 the Municipal Commissioner
D fixed up a meeting for hearing the alternative proposals of the Hous-
  ing Society. It has been alleged that in the said meeting the Housing        ~
  Society had put forward its case in support of the new proposals and
  the Municipal Commissioner had thereafter informed the Housing
  Society that he would consider the said proposals and take decision.
  However, no decision was taken till the filing of the present special
E leave   petition before this Court. it has been further alleged that on
  27th December, 1988 the Housing Society wrote a letter to the Munici-
  pal Commissioner to consider the alternative proposals mainly of ver-
  tical demolition of the building instead of demolishing the eight upper
  floors. It has been alleged that a meeting took place between the
  architects of the Housing Society as well as the officers of the Munici-
F pal Corporation in January, 1989 wherein the officers of the Corpora-
  tion agreed that instead of demolishing eight upper floors, deiflblition
  can be made vertically so as to bring the entire construction within the
  permissible F.S.I. It has been further alleged that immediately there-
  after the Housing Society was informed that ·henceforth it should con-
  tact the Municipal Commissioner directly and not any officers of the
G Corporation. It has been further alleged that the Corporation without
  considering the proposals of the Housing Society entrusted the work of
  demolition of the upper eight floors of the building to a company. In
                                                                               .
  these circumstances the Housing Society filed writ petition No. 3016 of
   1989 in the High Court. Learned Single Judge dismissed the writ peti-
   ti on by order dated 19th December, 1989 and the appeal preferred
H against the said order was dismissed by the Division Bench of the High
    HOUSING SOCIETY v. STATE OF MAHARASHTRA [KASL!WAL. J.]               749

    Court by order dated 9th March, 1990.
                                                                                A
           In view of the fact that the main grievance of the Housing Society
•   was that its alternative proposal of demolishing the building vertically
    instead of eight upper floors was not considered on merits by the
    Corporation, a serious effort was made by this Court to get the feasi-
    bility of such proposal examined by the Corporation. Orders in this         B
    regard were passed by this Court on several occasions but ultimately
    no agreeable solution could fructify. The proposal was got examined
    at the highest level by the Municipal Corporation and ultimately the
    Commissioner rejected the proposal on 13th November, 1990 and sub-
    mitted a detailed report in writing for the perusal of this Court. In the
    above report it has been stated that in pursuance to the order of this
    Court dated 22nd October, 1990, the proposals submitted by the              c
    Housing Society on 27th October, 1990 and 29th October, 1990 in
    supersession of all alternative proposals, to demolish vertically one
    bedroom and servant quarters on all the floors to bring the building in
    tune with the F.S.I. was considered but on the grounds stated in the
    report the proposal submitted by the Housing Society cannot be              D
    approved.

          In the circumstances mentioned above on the request of learned
    counsel for both the parties to decide the case on merits, we heard the
    arguments in detail on 23.4.1991. Thereafter, in order to clarify some
    points we directed the Chief Engineer cum Architect and the Munici-         E
    pal Commissioner to remain present on the next date namely, 1.5.1991
    and to keep the record of the case also ready for our perusal.

          We have heard learned counsel for the parties at great length and
    have thoroughly perused the record. It may be noted that the Housing
    Society had made illegal constructions in violation of F.S.I. to the        F
    extent of more than 24,000 sq. ft. and as such an order for demolition
    of eight floors was passed by the Administrator, Municipal Council as
    back as 21st September, 1984. The writ petition filed against the said
    order was dismissed by the High Court on 28th October, 1985 and
    special leave petition against the said order of the High Court was also
    dismissed by this Court. The High Court in its order dated 28th             G
    October, 1985 had granted an indulgence to the Housing Society for
    submitting an alternative proposal within the four corners of the rules
    aud regulations within one month and the municipality to consider the
    same. The proposal was submitted on 21st November, 1985 but in the
    said proposal there was no mention.of any vertical demolition of the
    building. The proposal with regard to the demolition vertically of one      H
    750                    SUPREME COURT REPORTS             I 1991] 2 S.C.R.

    bedroom and servant quarters on all the floors was submitted for the
A
    first time on 27th December, 1988. During the pendency of the special
    leave petition before this Court, this proposal was got examined by the
    Municipal Corporation. The Municipal Commissioner submitted a
    report on 13th November, 1990 giving detailed reasons for rejecting
    such proposal. It is well settled that the High Court under Article 226
B   of the Constitution is not an Appellate Court on the administrative
    decisions taken by the authorities. It cannot be sa.id that the decision
    taken by the Municipal Commissioner suffers from any want of juris-
    diction or is violative of any law or rules. The proposal submitted by
    the Housing Society was got examined by the architects and engineers
    and thereafter the order was passed by the Municipal Commissioner.
    It cannot be said that the action of the Municipal Corporation is
c   tainted with ma/a [ides. It was submitted by the learned counsel for the
    Corporation that the Corporation has entrusted the matter for investi-
    gation by the CBI and suitable action is being processed against the
    guilty officers of the Corporation with whose connivance these illegal
    constructions were made by the Housing Society.
D
          It is an admitted position that six floors have been completely
    demolished and a part of seventh floor has also been demolished. It
    was pointed out by Mr. K.K. Singhvi, learned counsel for the Corpora-
    tion that the tendency of raising unlawful constructions by the builders
    in violation of the rules and regulations of the Corporation was
E   rampant in the city of Bombay and the Municipal Corporation with its
    limited sources was finding it difficult to curb such activities. We are
    also of the view that the tendency of raising unlawful constructions and
    unauthorised encroachments is increasing in the entire country and
    such activities are required to be dealt with by firm hands. Such unlaw-
    ful constructions are against public interest and hazardous to the safety
F   of occupiers and residents of multistoreyed buildings. The violation of
    F.S.I. in the present case was not a minor one but was to an extent of
    more than 24,000 sq. ft. Such unlawful construction was made by the
    Housing Society in clear and flagrant violation and disregard of F.S.I.
    and the order for demolition of eight floors had attained finality right
    upto this Court. The order for demolition of eight floors has been
G   substantially carried out and we find no justification to interfere in the
    order passed by the High Court as well as in the order passed by the
    Municipal Commissioner dated 13th November, 1990.

         In the result we find no force in the petition and the same is
    dismissed with no order as to costs. Before parting with the case we
H   would like to observe that this case should be a pointer to all the
     HOUSING SOCIETY v. STATE OF MAHARASHTRA [KASLIWAL, J.l              751

     builders that making of unauthorised construdions never pays and is        A
     against the interest of the society at large. The rules, regulations and
     bylaws are made by the Corporations or development authorities tak-
     ing in view the larger public interest of the society and it is the
     bounden duty of the citizens to obey and follow such rules which are
     made for their own benefits.
                                                                                B
     S.B.                                                 Petition dismissed.


-l