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TMI Blog2006 (5) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Adv., i/b., Wadia Gandhy and Co. for Respondents No. 17 and 30, G.S. Godbole, for Respondent No. 18, Pankaj Savant, Adv.,i/b., Khaitan and Jaykar, for Respondent No. 20and; Alpana Ghone, Adv., i/b., Kanga and Co. for Respondents No. 24 and 32, G.R. Kinkhabwala, Adv., i/b., V.V. Juris, Adv. for Respondent No. 26 and Ajay Fernandes, Adv., i/b., Kanga and Co. for Respondent No. 27 ORDER H.L. GOKHALE, J. 1. Notice of Motion No. 64 of 2006 is taken out by the Petitioner Trust whereas Notice of Motion No. 200 of 2006 is taken out by Respondents No. 7 and 8 to the petition. Notice of Motion No. 226 of 2006 is taken out by Respondent No. 20 to the Petition. 2. Writ Petition No. 1650 of 2005 is filed by the 1st Petitioner Charitable Trust (and two Ors.), which Trust is interested in protection, preservation and enhancement of architectural material and natural heritage. The 2nd Petitioner is the Convenor of the Mumbai Chapter of the 1st Petitioner and expert in heritage architecture. The 3rd Petitioner is a renowned journalist who has extensively written on the textile mills in the city of Mumbai. The present petition is filed with a view to protect and preserve structures with heritage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 12 weeks and further directed the concerned authorities to take appropriate steps within 2 months thereafter on receiving those recommendations. 6. By the aforesaid order, the Court admitted the petition, but observed in para 23 that the issues raised in this matter could be adjudicated after recommendations of MHCC are forwarded to the concerned authorities. In the said para, the Court noted the plea of the learned Counsel for the Petitioners that if more time was wasted, then almost all structures located in the cotton textile mills would be brought down or demolished. This was apprehended in view of the NTC (North Maharashtra and South Maharashtra) - Respondents No. 7 and 8 herein selling the lands of five textile mills and many other private mills either planning to sell their lands or seeking to demolish or alter the structures therein for modernisation. In the earlier part of the order, the Court had noted that the State Government was to give full cooperation to the MHCC. The NTC and the private mill owners were also to cooperate with MHCC in the matter of access to the mill premises. The Court, therefore, observed in para 23 as follows: We have noted the plea of Mr.Rusto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e private mill lands had come to be listed. However, considering the apprehension with respect to the heritage structures on the private mills' lands an ad-interim order was passed in terms of prayer (b) of the motion on that date. We clarify that both these orders passed on 7th February 2006 and 28th March 2006 were ad-interim orders in terms of these two prayers of Notice of Motion No. 64 of 2006. In the meanwhile, the Apex Court vide its judgment and order rendered on 7th March 2006 had allowed the SLP against the judgment and order of this Court in Writ Petition No. 482 of 2005 in the case of Bombay Dyeing (supra). Respondents No. 7 and 8 to the petition took out Notice of Motion No. 200 of 2006 for vacating the ad-interim order passed on 7th February 2006 on Notice of Motion No. 64 of 2006. One of the private textile mills, i.e. Shriram Mills (Respondent No. 20 to the Petition), has taken out its own notice of motion bearing No. 226 of 2006 to vacate the ad-interim order dated 28th March 2006 passed by this Court insofar as it applied to Respondent No. 20. 10. As we have noted above, the earlier Division Bench, which admitted the writ petition on 28th October 2005, had obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be allowed to be demolished. (ii). He has emphasised provisions of D.C. Regulation 67 which provides for conservation of the listed buildings of heritage value. In his submission, the Commissioner has to act on the advice and in consultation with the Heritage Conservation Committee as provided under the said Regulation. The Regulation provides for grading of buildings from heritage point. In his submission, this Regulation is to be read independent of Section 37 of the MRTP Act which section otherwise provides the procedure for modification of a final development plan. This is also clear from Regulation 67(3). Mr.Rustomjee has drawn support for his submission with respect to Section 46 of the MRTP Act from the judgment of the Apex Court in the case of S.N. Rao v. State of Maharashtra [1988]2SCR919 , as also the judgment of a Division Bench of this Court in the case of Anahita Pandole v. State of Maharashtra 2004 (6) BCR 246, which was concerning the lawfulness of the hoardings on heritage buildings protected under the very D.C. Regulation 67. 13. (i). Mr.Naphade, learned Senior Advocate appearing for the NTC, on the other hand, submitted that the listing of heritage buildings and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of land under D.C. Regulation 58 had been upheld by the Apex Court in its judgment rendered on 7th March 2006. He, therefore, submitted that after all these steps having been taken, it was too late in the day for the petitioners to prevent NTC from demolishing the structures on the concerned mill lands on the basis of Heritage listing and notice issued now in April 2006. He however stated that as of now NTC was concerned only with the demolition of the structures on the lands of India United Mills No. 2 and 3 and New Hind Mills and there was no proposal to sell other mill lands or to demolish the structures thereon. 14. Mr.Singhvi, learned Senior Advocate appearing for the Municipal Corporation, supported the interpretation of the Petitioners on Section 46 of the MRTP Act. He submitted that in view of the judgment of the Apex Court in the case of S.N. Rao (supra), a proposal in the nature of the Heritage list, which had been duly published, had to be given due regard by the planning authority under Section 46 of the MRTP Act. In his submission, no development could take place except after development permission in the nature of commencement certificate given under Section 45 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lead to impossibility under Section 65 of the Contract Act and NTC will have to refund the amounts which it had received. It is material to note, as pointed out by Mr.Dwarkadas and Mr.Naphade, that the purchasers of NTC property have acted in pursuance of the interim order dated 1.12.2005 and 31.1.2006 passed by the Supreme Court during the pendency of the SLP filed by the NTC against the High Court judgment in Writ Petition No. 482 of 2005. They have demolished the structures in five mill lands and created third party interests. In the auction of the lands of NTC mills, it had received more than Rs.2000 crores, out of which about Rs.643.94 crores have been paid to the employees under Voluntary Retirement Scheme, Rs.84 Crores have been paid to workers towards PF and ESI dues and Rs.72 Crores are paid to banks and financial institutions towards one time settlement. It has to utilise the remaining amount for rehabilitation and modernization of other textile mills. Mr.Naphade and Mr.Dwarkadas submitted that if the petitioners want an interim relief, they must give an undertaking to pay damages by way of compensation as required under Rule 148 of High Court (Original Side) Rules for su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 lays down that the development plan may make provisions for controlling and regulating the use and development of land within the jurisdiction of a local authority and then lays down that it may include restrictions with respect to open space, percentage of building area for a plot, height and number of storeys, density of population allowed in the specified area, the use and purposes to which buildings or specified areas of land may or may not be appropriated, sub-division of plots, discontinuance of objectionable users of land in any area in reasonable periods, parking spaces and loading and unloading space for any building and the sizes of projections and advertisement signs and boarding and other matters. The Development Control Regulations, which are referable to Section 22(m), were sanctioned by the State Government under Section 31(1) of the Act and came into force from 25th March 1991. (iii). D.C. Regulation 58 amongst Ors. provides for the development or redevelopment of lands of cotton textile mills where they are sick or closed or where they are not sick or closed for the purpose of their modernization. D.C. Regulation 67, which provides for conservation of heritage bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds 24 metres (excluding height of stilt on ground floor. 19. (i). D.C. Regulation 67(3) provides that the list of buildings to which these Regulations apply shall not form part of this Regulation for the purposes of Section 37 of the MRTP Act. Section 37 of the Act provides for the manner in which modification of a final development plan can be brought upon. D.C. Regulation 67(3) provides that this list may be supplemented, altered, deleted or modified from time to time by Government on receipt of proposals from the Commissioner or from the Heritage Conservation Committee. It further provides that before the list is supplemented, altered, deleted or modified, objections and suggestions are to be invited and they are to be duly considered by the Commissioner and/or by Government. (ii). D.C. Regulation 67(10) provides for the grading of the listed buildings such as Grade I, II or III. As far as Grade-I buildings are concerned, they are supposed to be buildings of national or historical importance and no intervention is to be permitted either on the exterior or interior except for strengthening and prolonging the life of the buildings or precincts. Grade-II structures are of regional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said land as a recreational ground. However, at the time when the Commissioner rejected the proposal submitted by respondent No. 5, there was no such draft revised development plan in existence. Yet the Commissioner rejected the proposal which was entertained by the Minister of State for Urban Development in appeal under Section 47 of the Act. The Minister's order was maintained by the High Court as well as by the Supreme Court. In para-7 of its judgment, the Apex Court noted that Section 46 of the Act provides that the Planning Authority in considering the application for permission, shall have due regard to the provisions of any draft or final plan or proposals published by means of notice submitted or sanctioned under the Act. In para-8 the Court observed that there can be no doubt that if there is any other material or relevant fact, Section 46 does not stand in the way of such material or facts being considered by the Municipal Commissioner for the grant or refusal to grant or sanction any development plan. In the case before the Court, however, there was no draft revised development plan in existence. The Court subsequently noted in that paragraph that an order reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is made by any of the Mill companies. 24. (i). It is, however, material to note that as far as NTC is concerned, it has submitted its lay out for division of its lands under D.C. Regulation 58 and that has been sanctioned by the Municipal Corporation on 27.10.2004 which decision is referable to Section 302 of the Mumbai Municipal Corporation Act, 1888. Condition Nos.10 and 11 of the approval of lay out read as follows: 10. That the plot admeasuring 32163.50 Sq.m. on the land of India United Mill No. 2 3 which is proposed to be handed over to M.C.G.M. as shown in green in colour on the plan shall be cleared by demolishing the existing structures shall be kept open be handed over to M.C.G.M. before granting further C.C. for the development on (1) Mumbai Mill, (2) Jupiter Mill, (3) Elphinstone Mill, (4) Kohinoor Mill No. 3 and (5) Apollo Mill and its property i.e. Morarka Bungalow. 11. That out of 36062.10 sq.m. of MHADA share, 27234.09 sq.mt. on the land of New Hind Textile Mills and 8828.01 sq.mt. on the land of India United Mill No. 2 3 which is proposed to be handed over to MHADA (the land admeasuring 8828.01 sq.mt. will be subsequently shifted to other mill at the development ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same time, it is necessary that the decision on these lists ought to be arrived at at the earliest. In the circumstances, it will be desirable that after the objections are received by 22nd of May 2006, the designated officer of the Municipal Commissioner should decide them without any delay. We expect him to decide them within three months thereafter. The State Government is thereafter to take the final decision and issue the notification under Regulation 67(1) publishing the list. We expect the State Government to do the same within two months after receiving the report of the Commissioner. Needless to state that all the objections of the parties concerned will be considered by the Commissioner on merits, including that the structures concerned are not heritage structures or worth any architectural or historical or aesthetical value. 26. Before we pass the operative order, we may note that the State Government was to come out with the scheme to have a textile museum in the city which will also go towards preserving the historical aspects of the textile mills. On a query from the Court, the learned Advocate General could not make any positive statement in that behalf. All that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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