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Judgment
S.A. Bobde, J.—Heard. Rule. Rule made returnable forthwith and heard finally by consent of the parties.
2 The petitioner company which is engaged in the process of developing a Private Information Technology Park on a plot of land owned by it in a notified area, has challenged the order dated 14/9/2011 by which the respondent MIDC has returned the amended building plans submitted by the petitioner on the ground that the petitioners are not entitled to make any construction of residential buildings in the Mumbai Metropolitan Region and Pune Metropolitan Region.
The Respondent MIDC is set up as a Special Planning Authority for notified areas as defined under sub section (1A) of Section 40 of Maharashtra Regional and Town Planning Act, 1966 (MRTP Act). Respondent no. 1-State has formulated Information Technology policy for promoting development of information technology parks in the State of Maharashtra. Certain areas have been demarcated as notified areas for the purpose of development of information technology park.
The petitioners were permitted by the MIDC for establishing a new unit on the subject land after the government introduced information technology policy in 2009. The petitioners made an application for approval of plans for constructing a building for I.T. purpose on 80% of the land with 1 FSI and the construction of residential service apartments on 20% of the area. On 1/6/2010 respondent no. 2 issued provisional commencement certificate permitting such construction i.e. 80% for I.T. Building and 20% for residential service apartments with 1 FSI. The MIDC approved the plans submitted by the petitioner.
On 17/6/2010 the Development commissioner (IT) who is an authority working under the Directorate of Industries, State of Maharashtra issued a letter of intent for development of I.T. park on the said land. This letter of intent referred to the building plans approved by the Executive Engineer, MIDC, Thane and permitted construction as follows.
Total Area of Plot/Built up Area in sq. meter
Built up area for IT unit in Sq.meter
Open Plot area for IT unit in Sq.meter
Built up area for support services in Sq. meter
Open Plot area for support services in sq. meters
No. of parking slots>
32860.75 /29564.20
23651.36
NIL
591284
Nil
887
6 Letter of intent specifies that the petitioner would be required to follow provisions of Development Control Rules of the Local Authority in this case Special Planning Authority i.e. MIDC.
Eventually after the petitioner wrote a letter seeking clarification from the Development Commissioner whether 20% of the area can be used for residential purpose in respect of the said land which was not replied to. The Special Planning Authority i.e. MIDC sanctioned the plans for 1 FSI permitting construction of an IT building over 80% of the land and residential service apartments over 20% of the land. On 30/7/2010 the final commencement certificate was issued by the MIDC permitting the construction of IT building to the extent of 80% of the land and residential service apartments to the extent of 20% of the land permitting 1 FSI. The petitioner''s architect issued notice on 2/8/2010 to the MIDC that the work has commenced according to the sanctioned plan.
However, on 17/9/2010 MIDC wrote a letter to the petitioners asking them to stop the work on the ground that the petitioners have started construction of residential service apartments and they are selling residential area in open market which is not according to the IT policy of 2009 and called upon to demolish the construction. On 16/11/2010 the MIDC wrote a letter to the petitioners calling upon them to obtain clarification from the industries department regarding permission to construct residential structures. Eventually later on after the MIDC wrote to the petitioners stating that residential user is not permitted in Mumbai Metropolitan Region, the petitioners wrote to the MIDC submitting amended plan for 2 FSI. In response to this, MIDC passed the impugned order informing the petitioners that residential user is not allowed in the Mumbai Metropolitan Region and that they would not be allowed to proceed with the construction and sale of the residential flats in the open market.
At the outset it may be noted that as far as the issue of sale of residential flats in the open market is concerned it is accepted on behalf of the respondents that no condition express or implied was imposed on the petitioners restraining them from selling the residential flats in the open market. The main contention on behalf of the respondents that the petitioners are not entitled to construct any residential structure in the notified area at all in Mumbai Metropolitan region and Pune Metropolitan Region. There is no dispute that the petitioners'' plot is situated in Mumbai Metropolitan Region at Thane, Wagale Industrial Estate.
The main contention of Mr. Sathe, learned counsel for the petitioners is that the user of the subject for the construction of residential premises is permitted by the Development Control Rules and also by the I.T. policy framed by the Government of Maharashtra throughout the State of Maharashtra in such areas. Further that in fact the respondents MIDC considered the petitioner''s application for construction of 80% of the area for I.T. building and 20% for residential service apartments and granted provisional commencement certificate for such construction. Not only this, the Development Commissioner issued provisional commencement certificate for construction of both types of structures i.e. for I.T. and for residential. Final commencement certificate was issued by the MIDC for construction of both types of structures. It is therefore contended that the construction having been permitted by the MIDC is an authorised construction as permitted by the Development Control Rules, and it is not permissible now to direct the petitioner to stop the work and return the amended plan on the ground that the construction of residential structure is not permitted in the notified area.
Mr. Chavan, learned counsel for the MIDC submitted that the petitioner''s plans were sanctioned for construction of IT structures on 16/6/2010 for an I.T. part building and for I.T. support services. According to the respondents the sanction was for support service which does not include residential structures and in any case such residential structures are not permitted in such areas like Mumbai Metropolitan Areas. There is little doubt whether certain type of construction is permitted in a certain area is a matter which must be taken to be exclusively governed by the Development Control Rules. However, since the respondents have relied on the I.T. policy we have examined the said policy from this point of view. The I.T. Policy, 2009 permits the following benefits vide rule 3.1.1 to the persons applying under the said policy.
3.1.1 reads as follows.
Infrastructural and fiscal benefits.
Additional FSI and other benefits for IT Parks.
1 100% additional FSI shall be made available to all registered IT/ITES units
(including Telecom manufacturing units) in Public and Private IT/ITES Parks approved by
the Directorate of Industries, with or without premium as follows.
a] With 10% premium in Nashik, Aurangabad and Nagpur Districts and without premium in Low HDI Districts.
b] With premium as determined by the Empowered Committee in other areas of the State.
2 Recreational residential and other support facilities are necessary to service ITITES Parks and provide a suitable environment. The area used for such services shall not exceed:
a] 20% in A & B areas as classified under PSI 2007.
b] 40% in all other areas in the State including Nashik, Aurangabad and Nagpur districts.
3 100% additional FSI shall be made available for support facilities in Public and Private IT/ITES Parks with or without premium as follows:
a] With premium of 10% in Nashik, Aurangabad and Nagpur Districts and without premium in Low HDI Districts.
b] With premium in private IT Parks in other areas of the State, to be determined by the Empowered Committee such that a significantly higher premium is levied in A and B areas.
4 Where relevant, global FSI at layout level may be allowed subject to the guidelines of the Urban Development Department.
5 In order to support efforts to develop Mumbai as an international financial Centre, and considering the scope for financial services in Pune, their nexus with IT/ITES and their employment potential, upto 30% of the built-up area in IT/ITES Parks in the Mumbai and Pune Metropolitan Region may be utilized for specified financial services provided that at least 50% of the built-up area is used for IT/ITES and not more than 20% for support facilities.
However, the premium levied on the additional FSI for financial services shall be higher than that applicable for IT/ITES. Further, these services shall be subject to the Development Control Rules applicable in any particular area.
Excluding parking space, the following support facilities will be permitted in IT/ITES parks :
Banking services
Medical Stores
Convenience Shopping outlets
Communication Centre
Conference and Meeting Halls
Travel Agencies
Food Services, including cafeterias, food courts, coffee shops, etc.
Dispensaries
Recreational facilities including gymnasiums, club houses, etc.
Guest Houses
Vehicles Service Centres for Automobiles (In Nashik, Aurangabad, Nagpur and Low HDI districts)
Accommodation facilities including Hotels/Service Apartments (in Nashik, Aurangabad, Nagpur and Low HDI districts
The main reliance by the respondents is on sub clause 2 of clause 1 which allows the benefit of recreation and residential, other separate facility for service of the I.T. Parks to the extent of 20% in Mumbai Metropolitan areas and 40% in other areas. We find that there is nothing in sub clause-2 which excludes residential accommodation from the concept of support facility. On the other hand we find that the term " recreation residential and other support facilities" clearly suggests that residential is one of the support facility that is contemplated by the policy. The extent is 20% in Mumbai Metropolitan Region.
It was contended by Mr. Chavan that clause 2 of the policy permits certain support policies enumerated therein in the I.T. park and that excludes accommodation facility including service apartments and that permits the accommodation facility such as service apartments only in Nashik, Aurangabad and Nagpur and not in Mumbai. It is not possible to accept this contention. According to the respondents, therefore, the petitioners are not entitled to construct any residential premises in any area other than Nashik, Aurangabad and Nagpur. It is not possible to accept this contention. The policy enumerates the benefits that entrepreneurs would be entitled to. Sub clause 2 clearly permits the residential accommodation as a support facility to the extent of 20% in Aurangabad, Nagpur and Nashik area which includes the area where the subject land is located. Clause-2 undoubtedly provides that accommodation facility such as service apartment will be allowed in Nagpur, Aurangabad and Nashik, however, this clause does not say that such facility will be allowed only in Nashik, Aurangabad and Nagpur. There is nothing to derogate from sub clause 2 of clause 1 of the form which expressly permits residential construction as a support facility to the extent of 20% in Nashik, Aurangabad and Nagpur areas. It is not possible to read this seemingly contradictory clause in the policy as mutually destructive of other clause. We, therefore, are not inclined to accept the contention that the policy does not permit residential construction in Aurangabad, Nagpur and Nashik areas such as Mumbai Metropolitan region.
Moreover, we find substance in the contention of Mr.Sathe, learned counsel for the petitioners that the Development Commissioner as well as MIDC in fact acceded and granted permission to the petitioner to construct residential quarters over the subject land to the extent of 20% on the basis of D.C.rules which clearly enumerate the permissible land user and that one of the permitted land user is residential. In this context clause 17.3 enumerates permissible land user. Said clause reads as follows:
17.3.2 Note- 30% is deleted and substituted as "20%". Following words are added in the note-'''' Apart from above 10% may be allowed for essential staff quarters in each plot having area more than 1 acre in non-chemical industrial plot only.
Mr. Chavan learned counsel for the respondents submitted that the petitioners are even otherwise not entitled to make any residential construction on 20% of plot allotted to them in view of the note supra, since such construction is permitted to the extent of 20% of the total plotted area of MIDC and not 20% of the individual plots. We find that this submission is extraneous to the matter in hand because that is not a reason given by the MIDC for asking the petitioners to stop the work. The reason given in the impugned notice is only that the petitioner is not entitled to make any construction of residential nature in the Mumbai Metropolitan Region.
In Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others, reported in AIR 1978 Supreme Court, 851, the Supreme Court observed as follows :
The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose,
J. in Gordhandas Bhanji :
Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
Orders are not like old wine becoming better as they grow older.
Mr. Chavan and Mr. Nargolkar, learned counsel for the respondents, however, relied on the circular issued by the MIDC dated 26/8/2010 wherein it is stated that the Development Commissioner (Industries) has clarified that the "Residential" user permitted in clause No. 3.1.1.1(2) of the I.T. policy, 2009 is not allowed in Mumbai Region and Pune Metropolitan Region. Learned counsel for the respondents submitted that in view of this circular, the MIDC was justified in passing the impugned order dated 14/9/2011 refusing the request for one additional FSI to the petitioner and infact informing the petitioner that the proposal for revocation of building permission for residential purpose has already been processed. We are constrained to observe at the outset that the action of the respondent is wholly unjustified in law. The respondent - MIDC which is a planning authority was bound, and in fact, did consider the ground of building permission in accordance with Development Control Regulations of MIDC for Greater Bombay. There is no doubt that the said Development Control Regulations do not prohibit the construction for residential purpose and in fact clause 17.3.2 specifically permits the residential land use. The said clause reads as follows.
In addition to the above, the following land-uses may be permitted as supporting activities in the Notified Areas of MIDC.
j] Residential
k] Educational
l] Institutional
m] Assembly
n] Business
o] Mercantile
Nothing has been shown to us from which it may be inferred that the construction of residential premises is not permissible in an industrial area in Mumbai Metropolitan Region though this was so contended by Mr.Nargolkar, AGP. The main plant of respondents'' contention is that the circular dated 26/8/2010 referred to above lays down that the residential user is not allowed in Mumbai Metropolitan Region and Pune Metropolitan Region.
Mr.Sathe, learned counsel for the petitioner has rightly submitted on the strength of the observations of the Supreme Court in Godrej and Boyce Manufacturing Company Limited Vs. State of Maharashtra and Others, reported in (2009) 5 Supreme Court Cases, 24 that when the subject matter is governed by regulations framed under the statute as in the present case the municipal authorities such as the MIDC are not entitled to over right the statutory provisions by issuing circulars containing contrary provisions. In the Godrej Case (supra) while considering the effect of circular the extent of the area of road constructed for grant of TDR, the Supreme Court has observed as follows.
Mr. Shishodia next submitted that the measure of 15% (later raised to 25%) of the area of the road constructed for grant of TDR by the impugned Circulars of 9-4-1996, 5-4-2003 and 5-5-2004 was decided in meetings in which Mr.Nayan M.Shah, constituted attorney of the appellants, was also present as the representative of the industry. Hence, it was no longer open to the appellants and the petitioners to question those circulars. We are once again unable to accept the submission, Mr.Shah might have been present in the meeting and he might or might not have voted for the graded scheme for grant of additional TDR but that would not authorise the municipal authorities to override or supersede the statutory provisions by issuing circulars in the nature of executive instructions.
20 In this view of the matter, we hold that the respondents are bound to consider the continuing validity of the permission and sanctioned plans of the petitioner only in accordance with the Development Control Regulations of MIDC and the circular cannot be invoked for revoking the permission granted to the petitioner.
21 In this view of the matter, the rule is made absolute in terms of prayer clause (a) which reads as follows.
The respondents are further directed to consider the petitioner''s application dated 18/8/2011 in accordance with law.
At this juncture Mr. Chavan, learned counsel for the respondents prays for stay of the judgment. We see no reason to do so at this stage. Prayer rejected.