LexESHA EKTA APARTMENTS CO-OPERATIVE HOUSING SOCIETY LIMITED AND OTHERS versus MUNICIPAL CORPORATION OF MUMBAI AND OTHERS
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[2013] 4 S.C.R. 478 A ESHA EKTA APARTMENTS CO-OPERATIVE HOUSING B SOCIETY LIMITED AND OTHERS v. MUNICIPAL CORPORATION OF MUMBAI AND OTHERS (Civil Appeal No. 7934 of 2012) FEBRUARY 27, 2013 [G.S. SINGHVI AND SUDHANSU JYOTI MUKHOPADHAYA, JJ.] C Urban Development - Maharashtra Regional and Town Planning Act, 1966 - ss.44, 45, 47, 52 to 57 - Illegal and unauthorized construction made by developers/builders - Demolition order - Plea of flat buyers for regularization of construction - Held: By rejecting the prayer for regularization D of the floors constructed in wanton violation of the sanctioned plan, the Deputy Chief Engineer of the Mumbai Municipal Corporation and the Appellate Authority demonstrated their determination to ensure planned development of the city - The 1966 Act does not mandate regularization of construction E made without obtaining the required permission or in violation thereof - The 1963 Act too does not entitle the flat buyers to seek a mandamus for regularization of unauthorized/illegal construction - The 1991 Regulations also cannot be invoked for regularization of the disputed construction because the F same were enforced much later - The flat buyers had entered into agreements with the developers/builders much before commencement of the construction - They were aware of the facts and had consciously occupied the flats illegally constructed by the developers/builders - No case made out G for directing the respondents to regularize construction made in violation of the sanctioned plan - No authority administering municipal laws and other similar laws can encourage such violation - The Courts are also expected to refrain from exercising equitable jurisdiction for regularization H 478 ESHA EKTA APARTMENTS._CHS LIMITED\'. MUN. 479 CORPORATION OF MUMBAI of illegal and unauthorized constructions - Flat buyers, A however, free to avail appropriate remedy against the developers/builders -: Mumbai Municipal Corporatio'n Act, 1888- ss.337, 351 and 354A - Maharashtra Ownership Flats (Regulation of the. Promotion of Construction, Sale, Management an~· Transfer) Act, 1963 - ss.2(c), 3(2), 4, 7(2) B & 13- Development Control Rules for Greater Mumbai, 1967 - Development, Control Regulations for Greater Mumbai, 1991. Orders were passed by Deputy Chlet Engineer, c Building Proposals (City) of the Mumbai Municipal Corporation and the Appellate Authority refusing to regularize illeg.al. constructions r~ised· by developers/ builders. Even' though the Planning Authority had not sanctioned. the plans, the developers/builders had D constructed additional floors and utilized the Floor Space Index (FSI) far in excess of what was permitted by·the Mumbai Municipal Corporation Act, 1888 and the Development Control Rules for Greater Mumbai, 1967. . ~ The Municipal Corporation of Mumbai issued notices E under Section 351 of the 1888 Act, giving details of the illegal structures. proposed to be demolished. The housing societies concerned submitted their respective replies. which . were rejected by the Corporation, whereupon they filed Long Cause Suits for quashing the F notices issued under Section 351 of the 1888 Act and the rejection order passed by the Corporation. They also filed applications for restraining the Corporation from demolishing the illegal portions of th.e buildings. G · The trial Court dismissed ·the applications for temporary injunction· and further rejected the contention of the members of the housing societies that they had purchased the flats without knowing. that the same were illegally constructed ·by the ~evelopers/builders. H ., . 480 SUPREME COURT· REPORTS · [2013) 4 S.C.R. A The app-eals filed by the housing societies and their members were dismissed by the High Court, and, therefore the instant appeals. The Supreme Court, keeping in view that demolition of the illegal and unauthorized construction would adversely affect the flat B buyers and their families and that a writ petition filed by them for regularization of the disputed construction was pending before the High Court, considered it appropriate to transfer. the same to this Court · Various question's · therefore came up ·. for C consideration before this Court, viz. 1) whether the orders ·passed by the Deputy Chief Engineer and the Appellant Authority refusing to regularize the illegal constructions were .legally sustainable; 2) whether the f
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