Bombay High Court Dismisses Shiv Sena (UBT) MLA Ravindra Waikar's Plea Against BMC Order Revoking Hotel Permission

The Bombay High Court on Monday dismissed the petition filed by MLA Ravindra Waikar from Shiv Sena (Uddhav Balasaheb Thackeray) party regarding cancellation of permission granted to him and four others to build a luxury hotel in Mumbai.

The order was passed in chambers by a bench headed by Justices Sunil Shukre and Rajesh Patil. 

 "We find that there are no malafides or any lapses on the part of the Corporation in taking the decision impugned in the present Petition," the order read. The court, however, stayed its order for four weeks to enable Waikar to approach the Supreme Court.

In the petition filed through advocate Joel Carlos, the petitioners claimed that in 2004 they (occupiers) entered into an agreement with BMC and owners of an 8000 sq meter land to keep 67% area under reservation, open and permission was granted to develop the remaining land. The following year they purchased the land in Jogeshwari.

According to the 2034 Development Control and Promotion Regulation, they were allowed to use FSI after handing over 70% of the area to BMC. Waikar claimed in 2020 they handed over the area to BMC and applied for permission afresh.

In 2021 BMC granted Waikar and the other petitioners development permission and subsequently, they were also issued a commencement certificate. However, in 2022 BMC’s law officers asked him to submit documents for verification, the plea states. It adds that on June 15, 2023, the permission granted to him was cancelled.

Waikar claims that principles of natural justice were not followed and he wasn’t issued a show cause notice before development permission was cancelled. Moreover, the order wasn’t reasoned, he said. Counsel Senior Advocate Aspi Chinoy argued that three months after the Corporation dismissed a complainant by BJP leader Kirit Somaiya, the same complainant letter was cited seeking recertification of documents. 

The municipal corporation is acting on vengeance, he claimed. 

During the hearing, senior advocate Milind Sathe for BMC contended that the developmental permission was granted to Waikar in February 2021 despite the suppression of material facts. He claimed that the reservation for the plot was already completed in accordance with the DP 1991 policy and in 2005 Rs. 3 lakh was paid for the 8,000-meter plot with permission to develop 33% of the plot, and allow 67% to be used for a recreational garden.

One of the clauses of the 2004 triparte agreement was that occupiers (Waikar) were not supposed to claim any compensation / TDR at any time for the entire area of the subject plot. However, Waikar's project was to use FSI of the complete plot which was impermissible.  

 "The Petitioners have thereafter in the year 2020 pursuant to new DCPR 2034 sought permission to demolish the existing Club House and built a new building for the purpose of 14 Storey Star Hotel," the court noted. 

Observing BMC issued Waikar a notice and asked to clarify his position in writing before cancelling construction permission meant rules of natural justice were followed. 

"We are of the view that the Petitioners submitted a proposal for the development of the reservation in the 2034 plan by suppressing the fact that the reservation has already been implemented and that there is a Tripartite Agreement to that effect between the owners, occupiers and Corporation executed way back in 2004 and the same has not been set aside or cancelled or rescinded."

"We are also of the view that once the Petitioners had received the benefit under DC Regulations 1991 and had constructed the club house, therefore effectively the whole scheme was implemented and, therefore having received compensation in the form of FSI for a land which is reserved for garden purposes, the Petitioners now cannot, in view of DCPR 2034, again apply for compensation when the reservation on the subject land has not changed," the bench added.  

Case Title – Ravindra Waikar vs State of Maharashtra

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