Construction of 5-star hotel in Jogeshwari: Bombay HC dismisses Uddhav Sena MLA’s plea against BMC, continues interim protection

A division bench of Justices Sunil B Shukre and Rajesh S Patil, while reserving the order on August 7, questioned the BMC officials as to why they initially gave permission to Waikar, and why no action was taken against errant officials when the permission was later revoked.

Rejecting BJP leader Kirit Somaiya’s intervention plea, who was a complainant in the case, the bench said that he had no business to intervene and that the BMC had a capable lawyer to handle the issue.

According to the plea by Waikar, his wife Manisha, and three others, in February 2004 there was an agreement between the BMC, land owners and petitioners (occupiers). The civic body had permitted the occupiers, as per development control rules (DCR), to keep 67 per cent of the land under ‘reservation open’. In 2005, the said land was purchased by petitioners. In 2018, as per development control and promotion regulations (DCPR), the petitioners were entitled to use the floor space index (FSI) as per the DCR by handing over 70 per cent of the said land to the BMC.

The petitioners claimed that in October 2020 they had decided to give up 70 per cent of the land, and apply to the BMC afresh for development work by demolishing the existing area. Two months later, the petitioners’ proposal was approved and permission for development was granted to them in January 2021.

According to the petitioners plea, the BMC, without complying with the principles of natural justice or any show-cause notice, on June 15, directly issued the impugned order, prompting the petitioners to approach the high court.

The bench observed that petitioners had “suppressed the material clauses from the earlier Development Agreement while submitting the proposal under DCPR 2034”.

It went on to note, “The Petitioners had also given an undertaking to the Corporation that no purchase notice/ TDR /FSI /award/compensation whatsoever has been received in the past nor any proposal with regard to claiming any benefits thereunder. Therefore on the face of it false Undertaking was given by Petitioners.”

The court also noted that the petitioners had submitted a proposal for development of the reservation in the 2034 plan by suppressing the fact that the reservation has already been implemented and they had stated that there is a Tripartite Agreement to that effect between the owners, occupiers and Corporation executed back in 2004 and the same has not been cancelled or rescinded.

The Bench opined that “once the petitioners had received the benefit under DC Regulations 1991 and had constructed the club house, the whole scheme was effectively implemented”. Therefore, it said the petitioners now could ‘not again apply for compensation under DCPR 2034, when the reservation on the subject land has not changed”.

It also observed that BMC, while cancelling the permission “followed principles of natural justice” and sufficient opportunity was given to the petitioners to put their submissions.
“We find that there are no malafides or any lapses on the part of Corporation in taking the decision impugned in the present Petition,” the bench said while dismissing the plea.