SUPREME COURT OF INDIA
Jayant Achyut Sathe
Vs
Joseph Bain D'Souza and Others
Appeal (Civil) 2970 of 2006 (Arising Out of S.L.P.(C) No.1376 of 2006 With C.A. No 2971/06@ Slp (C) No.1375/2006, C.A. No 2972/06@Slp (C) No.1377/2006, C.A.No2973/06@ I.A.No.1 In & Slp)/06(Cc 1776/06), C.A. No 2974/06@ I.A.No.1 In & Slp)/06 (Cc 2095/06), C.A. No 2975/06@ I.A.No.1 In & Slp)/06(Cc 2531/06), C.A. No 2976/06@Slp (C) No.2704/2006, C.A. No 2977/06@ Slp (C) No.4747/2006, C.A. No 2978/06@Slp (C) No.71/2006, C.A. No 2979/06@Slp (C) No.9490/2006)
(Arijit Pasayat and S. H. Kapadia, JJ)
14.07.2006
ARIJIT PASAYAT, J.
Leave granted in each case.
Challenge in each of these appeals is to the legality of the judgment rendered
by a Division Bench of the Bombay High Court at Bombay in a Public Interest
Litigation filed by three citizens essentially questioning legality of
Regulation 33 (7) of the Development Control Regulations, 1991 (in short the
'Regulations'). These Regulations came into force with effect from 20th March,
1991. According to writ petitioners it is in essence delegated legislation
under the Maharashtra Regional and Town Planning Act, 1966 (in short the
'Act'). The writ petitioners questioned the amendment brought in 1999 which
provided for a minimum Floor Space Index (in short 'FSI') of 2.5 plus
Additional FSI required for rehabilitation of existing tenants plus incentive
FSI on several grounds.
The present appellant resisted the claim.
The High Court instead of deciding the core issue has by the impugned judgment
appointed some Committees to look into several aspects which according to it
had relevance for the basic and recurring problems.
In support of the appeals, learned counsel for the appellants submitted that
the High Court instead of deciding the basic issue has gone into unconnected
matters, has lost sight of the fact that the views of the Committees appointed
really will be of no consequence and would not throw any light on the legality
or otherwise of the provisions which were challenged. The views of the
Committees cannot be a substitute for a decision of the Court and in fact the
High Court has not made it clear as to what will be the effect of the views of
the Committees appointed and how they are to be implemented and, in short,
whether the Committees can deal with the legality or otherwise of the impugned
provisions. Various details have been submitted to justify the legality of the
impugned provisions. It was highlighted that the High Court did not consider a
specific plea that the amended Regulation became operative from 1999 and for
the first time challenge was made by the three writ petitioners in 2004. By
that time on the basis of the amended provisions, various steps of conclusive
nature have been taken by various persons.
In response, learned counsel for the writ petitioners before the High Court has
supported the impugned judgment of the High Court.
We do not think it necessary to examine the merits of the rival contentions. At
the outset it may be stated that it is not clear as to whether the writ
petition has been disposed of by the High Court or not. There is no specific
indication in that regard. It is also not clear whether after the Committees appointed
express their views, what was the follow up action to be taken and by whom. As
rightly pointed out by learned counsel for the appellants the High Court has
not dealt with the basic issues raised in the writ petition i.e. as to whether
the amended Regulation 33(7) suffered from any infirmity. We, therefore, think
it appropriate to direct the High Court to examine those issues. The parties
shall be permitted to place their respective stands before the High Court. It
is open to the appellants to canvass before the High Court as to the non-
maintainability of the Writ Petitions. The High Court shall appropriately
deal with the same. It needs no reiteration that the High Court shall examine
the challenge to Regulation 33(7) as amended in 1999. The interim order passed
by this Court on 21.4.2006 shall continue to be in operation till disposal of
the matter by the High Court. By order dated 21.4.2006 we had directed that no
third party right shall be granted without leave of this Court. During the
pendency of the matter before the High Court it shall be for the High Court to
deal with that aspect. It is made clear that the High Court shall deal with
only the issue relating to validity of the provisions and maintainability of
the Writ Petitions. Certain parties have filed Intervention Applications before
this Court. These Applications shall be dealt with by the High Court. The High
Court is requested to dispose of the matter within three months from the date
of receipt of the order. It is open to the parties to bring to the notice of
the High Court our order.
Place these Appeals for further hearing in the first week of December, 2006.