BOMBAY METROPOLITAN REGION DEVELOPMENT AUTHORITY, BOMBAY versus GOKAK PATEL VOLKART LTD. AND ORS.

Citation: [1994] SUPP. 6 S.C.R. 485 · Decided: 13-12-1994 · Supreme Court of India · Bench: B.P. JEEVAN REDDY · Disposal: Appeal(s) allowed

Judgment (excerpt)

BOMBAY METROPOLITAN REGION.DEVELOPMENT 
A 
, 
1 AUTHORITY, B~~BA Y 
n ' 
V, 
r·1 
GOKAK PJ\T:E.J,, VOLKART LTD. AND ORS. 
·' 
DECEMBER 13, 1994 
B 
[B.P. JEEVAN REDDY AND SUHAS C. SEN, JJ.] 
• 
Bombay Metropolitan Region Development Act, 197 4: Section 13. 
Development Plan-Approval by Metropolitan Authority-Time Limit of 
sixty days from the date of application-Deeming clause that permission C 
shall be deemed to have been granted if not refused within sixty days-
Applicability of Deeming clause-Where Metropolitan authority passed the 
order within sixty days but was quashed by the appellate authority the 
deeming clause Held not applicable. 
Constitution of India, 1950: 
Article 226-Writ-High Court should not entertain writ where the 
petitioner has availed alternative statutory remedy of appeal and the same 
was pending. 
D 
The respondent-company obtained approval from Munfcipal 
Corporation of Greater Bombay for construction of a thirty-storeyed E 
building at Colaba, Bombay utilizing Floor Space Index (FSI) of2.45 of 
the plot. Subsequent to the said approval the Bombay Metropolita·n 
Region Development Act, 1974 came into force and in exercise of the 
powers under sub-section (1) of Section 13 of the said Act the 
Metropolitan Authority issued a Notification prohibiting construction F 
of any building which will have a Floor Space Index exceeding 1.33. 
Under Section 13(1) of the Act permission from Metropolitan 
Authority was necessary for development in contravention of the !>aid 
Notification. Under sub-section (3) of Section 13 the Metropolitan 
Authority was required to refuse or grant permission within sixty days 
from the date of receipt of application and if such a permission was not G 
refused within sixty days then it was to be deemed to have been 
granted. Consequently, on 14th July, 1977, the respondent-company 
applied for permission to undertake development with the FSI of 2.45. 
Its application, which was received by the Metropolitan Authority on 
15th July, 1977, was rejected on 8th September, 1977. The respondent-
Company preferred an appeal under Section 13(4) and the State H 
485 
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B 
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E 
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486 
SUPREME COURT REPORTS 
[1994) SUPP. 6 S.C.R 
Government by its order dated 23rd February, 1978 allowed the same 
and gave a commencement Certificate to the Company. The residents 
of Colaba challenged the State Government's order by filing a Writ 
Petition in the Bombay High Court which set aside the orders of State 
Government and Metropolitan Authority and directed the Municipal 
Corporation to reconsider the application filed by the respondent-
Company. However, after reconsideration the Metropolitan Authority 
vide its order dated 17th September, 1984 rejected the first 
respondent's application. The respondents preferred an appeal before 
the State Government While the appeal was still pending it filed a writ 
petition in the Bombay High Court challenging the order of rejection 
on the ground that in view of the lapse of sixty days, permission was 
deemed to have been granted to the respondents under Section 13(3) 
and consequently, the order of rejection was illegal and without 
justification. A Division Bench of the High Court allowed the petition. 
In appeal to this Court, it was contended on behalf of the 
appellant-authority that (1) since the Respondents had availed the 
alternative remedy of statutory appeal, which was pending, the High 
Court should not have entertained the writ petition; (ii) the statutory 
fiction of deemed permission arises only if there was a failure on the 
part of the Authority to pass an order within sixty days of receipt of the 
application and this time limit was inapplicable if the appellate 
authority had quashed the order and directed a fresh order to be 
passed. 
On behalf of the respondent-company it was contended that the 
Authority had no jurisdiction to pass an order on the first respondent's 
application under any provision except under Section 13(3); if the 
order is not under Section 13(3) then the respondents will have no right 
to appeal against that order. 
Allowing the appeal (and connected appeals), this Court 
HELD: 1. This is a case, where there is not only the existence of an 
alternative remedy but the respondent-petitioner actually had availed 
G 
of that remedy and its appeal before the Statutory Authority was 
pending. In that view of the matter the writ petition should not have 
been entertained by the High Court. [492 D] 
2 .. It

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