THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE N. TUKARAMJI
WRIT APPEAL Nos.74, 140, 143, 146 and 147 of 2023
COMMON JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)
This order will dispose of Writ Appeal Nos.74, 140, 143,
146 and 147 of 2023.
2. All the writ appeals arise out of the common
judgment and order of the learned Single Judge dated
04.11.2022 disposing of Writ Petition Nos.31833, 31848 and
35130 of 2017 as well as Writ Petition Nos.3046 and 9301 of
2020.
3. Writ Appeal No.74 of 2023 which has been argued
as the lead appeal arises out of Writ Petition No.31833 of
2017. Writ Petition No.31833 of 2017 was filed by Bellezza
Apartment Owners Welfare Association (briefly referred to
hereinafter as 'Bellezza') assailing the legality and validity of
the order dated 14/15.09.2017 passed by the Commissioner
of Greater Hyderabad Municipal Corporation (briefly referred
2 HCJ & NTRJ
W.A.Nos.74, 140, 143, 146 & 147 of 2023
to hereinafter as 'GHMC'). By the common judgment and
order dated 04.11.2022, learned Single Judge has allowed the
said writ petition by quashing the order dated 14/15.09.2017,
but at the same time issuing a direction that a phased
boundary with chain link shall be constructed leaving 16
meters required setback i.e., deficit 7 meters, with further
direction to GHMC to grant necessary permission in this
regard. Against the aforesaid direction, Lodha Meridian
Apartment Owners Welfare Association (briefly referred to
hereinafter as 'Meridian'), which was arrayed as respondent
No.4 in W.P.No.31833 of 2017, has filed Writ Appeal No.74 of 2023.
4. Writ Appeal No.140 of 2023 has been filed by Bellissimo Healthy Constructions and Developers Private Limited, earlier known as M/s. Lodha Healthy Constructions and Developers Private Limited (briefly referred to hereinafter as 'the developer') assailing the aforesaid direction of the learned Single Judge in W.P.No.31833 of 2017 to the extent that the developer has been directed to construct the 3 HCJ & NTRJ W.A.Nos.74, 140, 143, 146 & 147 of 2023 boundary wall with chain link leaving 16 meters required setback, with further direction to the GHMC to grant necessary permission to the same. Writ Appeal No.140 of 2023 has been filed by the developer against the aforesaid judgment and order of the learned Single Judge but arising out of W.P.No.3046 of 2020 which was filed by Rajsekhar Jamithreddy and 11 others, who are residents of Meridian, seeking demolition of the boundary wall. Though by the aforesaid common judgment and order, learned Single Judge has dismissed W.P.No.3046 of 2020, the developer has filed Writ Appeal No.140 of 2023 against the aforesaid direction of the learned Single Judge in W.P.No.31833 of 2017.
5. Developer has also filed Writ Appeal No.143 of 2023 against the aforesaid common judgment and order of the learned Single Judge relating to Writ Petition No.31848 of 2017. Writ Petition No.31848 of 2017 was filed by the developer assailing the legality and validity of the order dated 14/15.09.2017 passed by the Commissioner, GHMC. The 4 HCJ & NTRJ W.A.Nos.74, 140, 143, 146 & 147 of 2023 aforesaid writ petition was disposed of in the light of the order passed in W.P.No.31833 of 2017.
6. Writ Petition No.9301 of 2020 was filed by the developer with the following prayers:
(i) for a direction to GHMC to consider and sanction the revised site/layout plans submitted by the developer in respect of Meridian Complex on 16.11.2019, as updated on 07.02.2020; and
(ii) for a further direction to the said respondents to issue No Objection Certificate and Occupancy Certificate pursuant to representation dated 08.01.2020.
6.1. By the common judgment and order dated 04.11.2022, learned Single Judge disposed of Writ Petition No.9301 of 2020 by directing the respondents to consider the representation of the developer within a period of six weeks from the date of receipt of a copy of the said order. Possibly in view of the direction of the learned Single Judge in Writ Petition No.31833 of 2017 that the developer should 5 HCJ & NTRJ W.A.Nos.74, 140, 143, 146 & 147 of 2023 construct the boundary wall with chain link leaving 16 meters setback, the developer has filed Writ Appeal No.146 of 2023 which arises out of Writ Petition No.9301 of 2020.
7. Writ Appeal No.147 of 2023 has been filed by the developer against the direction issued by the learned Single Judge while disposing of Writ Petition No.31833 of 2017 filed by Bellezza vide the judgment and order dated 04.11.2022.
8. There was one more writ petition being Writ Petition No.35130 of 2017 filed by Saroja Devi and 05 others for quashing the revised sanction plans dated 16.05.2013 and 26.08.2015. By the common judgment and order dated 04.11.2022, learned Single Judge dismissed the writ petition. However, no writ appeal has been preferred by the writ petitioners.
9. We have heard Mr. Pratap Narayan Sanghi, learned Senior Counsel for Meridian; Mr. Kishore Rai, learned Senior Counsel for Belleza; Mr. Amogh Singh, learned counsel representing Mr. V.T.Kalyan, learned counsel for the 6 HCJ & NTRJ W.A.Nos.74, 140, 143, 146 & 147 of 2023 developer; Mr. Pasham Krishna Reddy, learned Government Pleader for Municipal Administration and Urban Development Department; Mr. M.Dhananjay Reddy, learned Standing Counsel for GHMC; and Mr. Samala Ravinder, learned Government Pleader for Home Department (Fire Services).
10. Relevant facts have been summed up by the learned Single Judge in the common judgment and order dated 04.11.2022. The developer had constructed the project called 'Bellezza' comprising of 1-A, 1-B, 2-A, 2-B, 5-A, 5-B, 6-A and 6-B towers, which are twin towers comprising of one apartment per floor. Tower-7 comprises of two flats per floor. Grievance of Bellezza is that without informing and without the consent of the purchasers and flat owners of Bellezza, the developer had initiated another project called 'Meridian'. Meridian project comprises of 760 flats of different sizes and dimensions. When Bellezza raised objection, developer had entered into a settlement dated 26.07.2015 with Bellezza, whereafter Bellezza agreed to give no objection to GHMC vide letter dated 27.07.2015 for further sanction of Meridian.
7 HCJ & NTRJ W.A.Nos.74, 140, 143, 146 & 147 of 2023 Based on such agreement/memorandum of understanding, developer had obtained revised sanction on 26.08.2015. It was thereafter that a phased boundary was constructed demarcating Bellezza and Meridian. According to learned Single Judge, the same finds place in the building plan/layout.
11. Grievance expressed by Bellezza is that the developer had failed to fulfill several assurances given as to the amenities that would be available to the residents of Bellezza. That apart, if the phased boundary is removed, residents of Meridian would be using the amenities of Bellezza. It is the case of Belleza that it is a high-end complex whereas Meridian is not so, which would be evident from the price fixed by the developer for flats in the two projects. Bellezza had issued No Objection Certificate (NOC) for construction of Meridian as it was agreed upon that amenities provided to residents of Bellezza would be exclusive for their use. To assure residents of Bellezza, the developer in its various sale deeds executed with purchasers of Meridian had 8 HCJ & NTRJ W.A.Nos.74, 140, 143, 146 & 147 of 2023 incorporated Clause 5.3 therein mentioning about erection of the boundary wall and the amenities that would be exclusively for use by Bellezza. Purchasers of flats in Meridian had clearly accepted the above provisions.
12. On the other hand according to Meridian, because of the phased boundary, the required setbacks are not maintained which is contrary to the building norms and the fire safety norms, more particularly on the western side. Instead of the mandatory requirement of 16 meters setback, there is only 7 meters of setback; thus, there being 9 meters of deficit setback. Such a setback cannot be waived or relaxed by any authority. Contention of Meridian is that this phased boundary is a temporary one which has to be removed. It was erected when construction of Meridian was on to ensure that construction workers did not intrude into the space of Bellezza. If the phased boundary wall continues, residents of Meridian will be deprived of various facilities assured to them by the developer. That apart, other 9 HCJ & NTRJ W.A.Nos.74, 140, 143, 146 & 147 of 2023 allegations have also been made by Meridian against the developer regarding reduction in parking space, tot-lot, etc.
13. It may be mentioned that the developer had earlier filed writ petitions being W.P.Nos.26097 and 27588 of 2017 against notice for demolition of the boundary wall. So also Bellezza in W.P.No.27561 of 2017 for retention of the same. This Court had disposed of the writ petitions by directing GHMC to take an appropriate decision after hearing the parties. It was thereafter that Commissioner of GHMC had passed the order dated 14/15.09.2017. As per the aforesaid order, construction of the compound wall is unauthorized being in deviation of the sanctioned plan. This led to filing of the related writ petitions and counter writ petitions which were disposed of by the learned Single Judge vide the common judgment and order dated 04.11.2022 in the manner indicated above.
14. Mr. Sanghi, learned Senior Counsel for Meridian submits that when learned Single Judge had herself held that there is clear deviation of mandatory setback by the developer 10 HCJ & NTRJ W.A.Nos.74, 140, 143, 146 & 147 of 2023 which was pointed out by the Commissioner of GHMC in the order dated 14/15.09.2017, there could not have been any justifiable reason for setting aside the said order. Learned Single Judge has upheld the contention of Meridian that setback of 16 meters on all sides is a mandatory requirement. Insofar western side of the building Bellezza is concerned, instead of 16 meters, the setback is of only 9 meters, there being deficit of 7 meters. Learned Senior Counsel submits that permission was obtained by the developer by showing the project as a composite one. Subsequently, contrary to the sanctioned plan, the developer bifurcated the project into Bellezza and Meridian and for this, the phased boundary wall was constructed. He submits that construction of Bellezza was completed in the year 2013 and thereafter construction of Meridian was started. Because of the construction activities relating to Meridian, a temporary phased boundary wall was erected on request of Bellezza. However, when after completion of construction of Meridian, the developer did not remove/dismantle the temporary boundary wall, complaint 11 HCJ & NTRJ W.A.Nos.74, 140, 143, 146 & 147 of 2023 was lodged with GHMC and Fire Services Department of the State Government.
14.1. Learned Senior Counsel submits that because of the temporary phased boundary wall, several statutory amenities which the flat owners of Meridian are entitled to as per law have been denied to them. Placing reliance on the National Building Code, he submits that the temporary boundary wall is required to be demolished as the same is wholly unlawful, being contrary to the National Building Code. There is nothing on record to show that Bellezza is a high-end project whereas Meridian is an economical one, thereby depriving the residents of Meridian from basic amenities. Referring to the sale deeds, learned Senior Counsel submits that it is a trite law that a contract which is contrary to public policy or to the statute is liable to be ignored. Learned Senior Counsel, in his written brief, has also pointed out the reduction of amenities suffered by residents of Meridian. Placing reliance on the decision of the Supreme Court in Supertech Limited v. Emerald Court 12 HCJ & NTRJ W.A.Nos.74, 140, 143, 146 & 147 of 2023 Owner Resident Welfare Association1, he submits that an illegal construction is required to be demolished; there can be no compromise on this aspect.
15. Mr. Kishore Rai, learned Senior Counsel for Bellezza submits that insofar residents of Bellezza are concerned, GHMC had already issued Occupancy Certificate, but insofar Meridian is concerned, no such Occupancy Certificate has been issued to the residents of Meridian by GHMC. Without any Occupancy Certificate issued by GHMC, residents of Meridian are residing in Meridian. Such an occupation is nothing but illegal. He submits that Commissioner of GHMC had failed to consider all relevant aspects while passing the order dated 14/15.09.2017. Therefore, learned Single Judge has rightly interfered with such an order. Contention of Mr. Rai is that Bellezza and Meridian are two separate projects and therefore, there is need to demarcate the two projects. It is by way of the boundary wall that the projects are being demarcated and easily identified. Residents of Bellezza having paid substantial 1 (2021) 10 Supreme Court Cases 1 13 HCJ & NTRJ W.A.Nos.74, 140, 143, 146 & 147 of 2023 amount higher than Meridian, they are entitled to enjoy better facilities in Bellezza. In support of his submission, learned Senior Counsel has placed reliance on a division bench decision of this Court in C.Shekar Reddy v. C.S.R. Estates Flat Owners Welfare Association2. Supporting the order of the learned Single Judge, learned Senior Counsel for 1st respondent Bellezza seeks dismissal of the appeal i.e., Writ Appeal No.74 of 2023.
16. Insofar the developer is concerned, it is submitted that while the order of the learned Single Judge in setting aside the order dated 14/15.09.2017 is in favour of the developer and is fully justified, the subsequent direction that a phased boundary wall with chain link should be constructed leaving 16 meters required setback is wholly unwarranted in the facts and circumstances of the case. He submits that the division between the two societies i.e., Bellezza and Meridian is clearly indicated in the sanctioned plan dated 26.08.2015. Commissioner, GHMC had passed the order dated 14/15.09.2017 without taking into 2 AIR 2003 AP 491 14 HCJ & NTRJ W.A.Nos.74, 140, 143, 146 & 147 of 2023 consideration its own sanctioned plan. He further submits that each and every purchaser of flats in Meridian in their respective sale deeds had agreed to and given consent for construction of the compound wall i.e., phased boundary with chain link between Bellezza and Meridian. They having been bound by the sale deed, circumvented the same and lodged complaint before the GHMC raising the plea that construction of such boundary wall was unauthorized. This cannot be permitted, he submits.
16.1. Learned counsel asserts that there is no violation of the National Building Code, 2005. In any view of the matter, such a Building Code is not mandatory and does not have any binding force. In Supertech Limited (supra 1), admittedly 16 meters space was not maintained between two habitable buildings, which was contrary not only to the National Building Code, 2005, but also to the relevant statutory provision. Insofar the present case is concerned, the issue is erection and continuance of a wall between Meridian and Bellezza complexes.
15 HCJ & NTRJ W.A.Nos.74, 140, 143, 146 & 147 of 2023 16.2. Learned counsel has further submitted that Rule 16(e) of G.O.Ms.No.168 dated 07.04.2012 which provided for 16 feet setback on all sides was amended by G.O.Ms.No.7 dated 05.01.2016. As per the amended Rule 16(e), in case of high rise buildings the concession in all-round setbacks would be considered subject to maintaining minimum clear setback of 7 meters on all sides though such minimum setback shall be clear without any obstructions.
16.3. Learned counsel has also referred to various other provisions and submits that National Building Code is not having statutory force. But primary contention of learned counsel for the developer is that residents of Meridian are bound by the terms of their sale deed and therefore, they cannot raise any objection as regards erection of the boundary wall.
17. Mr. Sanghi, learned Senior Counsel for Meridian joining issue with learned counsel for the developer submits that Rule 16(e) was further amended in the year 2019 not 16 HCJ & NTRJ W.A.Nos.74, 140, 143, 146 & 147 of 2023 only restoring the setback limitation of 16 meters on all sides but also enhancing the same.
18. Submissions made by learned counsel for the parties have received the due consideration of the Court.
19. At the outset, we may advert to the order dated 14/15.09.2017 passed by the Commissioner of GHMC. As already indicated above, the matter was before Commissioner, GHMC in view of several orders passed by this Court in writ petitions, filed either by the developer or by Bellezza. In fact when earlier notice of demolition of the boundary wall was issued, developer had filed W.P.No.27588 of 2017 which was disposed of on 17.08.2017 along with the writ petition filed by Bellezza. The matter was remanded to the Commissioner, GHMC to consider all aspects of the matter and thereafter to take appropriate action. This Court gave liberty to both Bellezza and to the developer to file relevant documents also at the time of consideration by GHMC.
20. In the hearing scheduled on 12.09.2017, the developer was not present. Instead, a representation was 17 HCJ & NTRJ W.A.Nos.74, 140, 143, 146 & 147 of 2023 made for deferment of the hearing for reasons mentioned therein. Though it was stated that representation submitted by the developer on 31.08.2017 may be taken as its stand, Commissioner, GHMC while declining to grant the request for adjournment, proceeded with the hearing and thereafter passed the following order:
"In compliance with the Hon'ble High Court common order dt:17-8-2017, M/s. Lodha Healthy Constructions and Developers have submitted a representation vide reference 13th cited stating that the phase boundary chain link fencing constructed in compliance with the sanctioned plan approved by GHMC, and the fence between phases as 'phase boundary' is also clearly recorded in the sanctioned plan vide Permit No. 44523/HO/WZ/Cir-14/2015 dated:26-8-2015 and pleased not to initiate any steps to demolish sanctioned chain link fence.
After careful examination of the matter, it is observed that as per the sanctioned plan issued vide Permit No.44523/HO/WZ/Cir-14/2015 dated:26-8-2015 permission was accorded for Tower 8(D), 3(E), additional amenities along with the previous sanctioned Tower 1, 2, 5, 6, 7, 9 (A, B, C) with club house. In the sanctioned plan and building permit order it was indicated that the total site area as 48580.25 sq.mts, wherein amenities area admeasuring-6690.36, parking area admeasuring - 92898.28 sq.mts and tot-lot area admeasuring 4907.79 sq.mts were indicated for the total area.
The phase boundary with chain link cannot be treated as 18 HCJ & NTRJ W.A.Nos.74, 140, 143, 146 & 147 of 2023 division of project. Further the phase boundary with chain link shown in the sanctioned plan is only for temporarily demarcation during the construction period of the project only, but not for the division of the project, separating Phase-I & II (Belleza Apartment) with Phase-III (Lodha Meridian), whereby and where under totally depriving the open spaces, amenities, parking area & tot-lot to Tower 9(A,B,C), 8D, 3E (Meridian).
Whereas M/s. Lodha Healthy Constructions and Developers have separated the Tower Nos.1, 2, 5, 6, 7 & Amenities (club house) (named as Bellezza) with the Tower 9(A,B,C), 8D, 3E and additional amenities (named as Meridian) by constructing a permanent barricading compound wall with GI mesh in between the said towers, there by dividing the total project into two parts and resulting in a shortfall of amenities including open spaces, parking area, tot-lot area for the one part of the project i.e., Tower 9 (A,B,C), 8D, 3E, which is against the sanctioned plan and rules.
As per the Fire NOC issued by DG Fire Services vide RC No.6779/MSB/CR/RR/2013 dt:09.07.2015 for Tower-3(E) & RC No.6779/MSB/CR/RR/2013 dt:21.08.2013 for Tower- 8(D) the side setback between the Tower-8 and Tower-7 & Tower-9B, 3E is 16.00mts, whereas on account of construction of the compound wall the setback has been reduced to 7.00mts, 9.6mts at some parts of Towers and which is against the fire NOC.
Further if the project is to be divided into different parts separately by compound wall, then the required amenities as per rules area to be provided for each part or phase duly obtaining the necessary sanction from GHMC.
19 HCJ & NTRJ W.A.Nos.74, 140, 143, 146 & 147 of 2023 Since the builder has shown the entire project as one single project and also as the amenities, tot-lot and parking area are calculated for the total site area and not provided phase wise or project wise, the same shall be treated for the entire project as a whole.
As per the orders of Hon'ble High Court and after careful examination of the matter the representation submitted by M/s. Lodha Healthy Constructions and Developers is hereby disposed off and the construction of compound wall is treated as unauthorized, as it is in deviation to sanctioned plan, building rules and in violation of Fire NOC and fire norms."
21. This was followed by notice dated 10.01.2018 issued by the District Fire Officer, Ranga Reddy Division pointing out deficiency in western side of Bellezza (Tower No.7) stating that a permanent compound wall has been constructed for which open space provided has been reduced to 7 meters, there being deficit of 9 meters.
22. Learned counsel for the developer has referred to G.O.Ms.No.168 dated 07.04.2012, more particularly to Rule 7(vii) and (x) and submits that as per the aforesaid provision, in case of high rise building, minimum all-round open space on remaining sides (other in the frontage) was 16 meters. He 20 HCJ & NTRJ W.A.Nos.74, 140, 143, 146 & 147 of 2023 has also referred to Rule 16(e) of the aforesaid G.O.Ms. which deals with concessions in road widening cases, as per which in case of high rise buildings, the concessions and setbacks, other than front setback would be considered subject to maintaining minimum clear setback of 7 meters on the sides and rear side and such minimum setback area shall be clear without any obstructions to facilitate movement or fire fighting vehicles and effective fire fighting operation. He submits that vide G.O.Ms.No.7 dated 05.01.2016, Rule 16(e) has been deleted and in its place Sub-Rules (b) and (f) have been inserted to the following effect:
"The owner shall be allowed to avail concessions in setbacks including the front set-back (subject to ensuring a building line of 6 m in respect of roads 30m and above; 3m in respect of roads 18m and below 30m and 2m in respect of roads less than 18m and subject to ensuring minimum side and rear setback of 2m in case of buildings of height up to 12m and 2.5m in case of buildings of height above 12m and upto 15m and 3m for buildings of height above 15m and up to 18m).
In case of high rise buildings the concessions in all round setbacks would be considered subject to maintaining minimum clear setback of 7m on all sides and such minimum setback area shall be clear without any obstructions, except 2 21 HCJ & NTRJ W.A.Nos.74, 140, 143, 146 & 147 of 2023 mts wide green planting strip (where the setback is 9m and above), which shall be soft green planting, to facilitate movement or fire fighting vehicles and effective fire fighting operation."
22.1. From the above, he submits that the owner shall be allowed to avail concessions in setbacks including the front setback and in case of high rise buildings, all-round setbacks would be considered subject to maintaining minimum clear setback of 7 meters on all sides. While passing the impugned order dated 14/15.09.2017, Commissioner, GHMC overlooked the above provisions.
23. However, Mr. Sanghi, learned Senior Counsel for Meridian joining issue with learned counsel for the developer on the above contention submits that by way of G.O.Ms.No.50 dated 22.04.2019, Government of Telangana has made it clear that the building requirements and standards other than heights and setbacks specified in the National Building Code, 2016 shall be complied with. As per the aforesaid G.O.Ms.No.50, Rule 7 of G.O.Ms.No.168 dated 07.04.2012 has been substituted by holding that for a high rise building 22 HCJ & NTRJ W.A.Nos.74, 140, 143, 146 & 147 of 2023 above 120 meters, the minimum abutting road width should be 30 meters; side and rear open space should be 20 meters.
23.1. This is countered by learned counsel for the developer contending that the amendment of 2019 would have prospective effect.
24. From the above, what transpires is that the claims and counter claims between Bellezza and Meridian and also with the developer are highly disputed and contentious, which according to us, a writ proceeding under Article 226 of the Constitution of India would not be the appropriate forum for a proper determination. However, we are clear in our view that learned Single Judge having set aside the aforesaid order dated 14/15.09.2017 ought to have remanded the matter back to the GHMC for taking a comprehensive decision after giving due opportunity of hearing to all the sides instead of issuing the direction herself. This is also because of the reason that while passing the order dated 14/15.09.2017, Commissioner of GHMC had declined the request of the developer for a personal hearing. As rightly pointed out by 23 HCJ & NTRJ W.A.Nos.74, 140, 143, 146 & 147 of 2023 the learned Single Judge, the dispute involves a large number of residents who are residing either in Bellezza or in Meridian. Therefore, in such a situation, it would be just and appropriate if Commissioner, GHMC re-hears the matter after giving due opportunity of hearing to the developer, Bellezza as well as Meridian and the fire services authority insofar erection of boundary wall between Bellezza and Meridian is concerned including applicability of G.O.Ms.No.168 dated 07.04.2012 as amended on 05.01.2016 and 22.04.2019. Therefore, consequential direction of the learned Single Judge that the phased boundary with chain link between Bellezza and Meridian shall be constructed leaving 16 meters clear setback on all sides cannot be sustained.
25. As regards grievance expressed by members of Meridian regarding curtailment of amenities by the developer, we are of the view that in the sale deeds entered into between the developer and the flat purchasers of Meridian, there is clear provision for dispute resolution. One such sale deed dated 06.10.2016 between the developer and Mr. Nagathota 24 HCJ & NTRJ W.A.Nos.74, 140, 143, 146 & 147 of 2023 Sudhakar, one of the purchasers in Meridian, have been placed on record as part of Volume-II (material papers). In the said sale deed, Clause 23 refers to dispute resolution in the following terms:
23. "DISPUTE RESOLUTION AND GOVERNING LAW 23.1 If any dispute or difference arises between the parties at any time relating to the construction or interpretation of this deed or any term or provision hereof or the respective rights, duties or liabilities of either party hereunder, then the aggrieved party shall notify the other party in writing thereof, and the parties shall endeavor to resolve the same by mutual discussions and agreement.
23.2 If the dispute or difference cannot be resolved within a period of 7 (seven) days, from the notice by the aggrieved party under sub clause 23.1 above, then the dispute shall be referred to arbitration. Arbitration shall be conducted in Hyderabad or Mumbai, India in accordance with the provisions of the Arbitration and Conciliation Act, 1996 or any other statutory modifications or replacement thereof. All arbitration proceedings will be in English language. The arbitration shall be conducted by a Sole Arbitrator who shall be appointed by the promoter.
23.3 The decision of the arbitrator shall be in writing and shall be final and binding on the parties. The award 25 HCJ & NTRJ W.A.Nos.74, 140, 143, 146 & 147 of 2023 may include costs, including reasonable attorney fees and disbursements. Judgment upon the award may be entered by the Courts In Mumbai/Hyderabad.
23.4 This sale deed and rights and obligations of the parties shall remain in full force and effect pending the award in any arbitration proceeding hereunder.
23.5 This deed shall be governed and interpreted by and construed in accordance with the laws of India. The Courts at Mumbai/Hyderabad alone shall have exclusive jurisdiction over all matters arising out of or relating to this deed."
26. Though learned Single Judge while dismissing the writ petitions had left it open to the aggrieved parties to work out their remedy, we are of the view that when a mechanism for dispute resolution has been agreed upon by the parties, the said provision should be availed by the aggrieved party.
27. Since we are on the sale deed, we may mention that learned Single Judge had referred to Clause 5.3 of the said sale deed in support of the conclusion reached that the members of Meridian were fully informed about construction of a boundary wall demarcating Bellezza and Meridian. In fact, the said provision says that the purchaser would have no 26 HCJ & NTRJ W.A.Nos.74, 140, 143, 146 & 147 of 2023 objection to such construction and has waived all his right to raise such objection. Of course, learned Senior Counsel for Meridian has argued that there can be no estoppel against the statute and such a contract cannot be enforced.
28. As we have remanded the matter back to the Commissioner, GHMC, we leave it to the said authority to take a final call in the matter after giving due opportunity of hearing to all the stake holders including the fire services authority which had issued the notice dated 10.01.2018. Since all the parties are before us, we direct them to appear before the Commissioner, GHMC on 23.03.2023 at 11.00 A.M. whereafter Commissioner, GHMC shall proceed with the matter in accordance with law, including affording personal hearing to the parties.
28.1. In view of the above discussion, Commissioner, GHMC shall also issue notice to the Fire Safety Department which had issued the notice dated 10.01.2018 so that a final decision can be reached in the long standing dispute between Bellezza and Meridian. Let the aforesaid decision be taken 27 HCJ & NTRJ W.A.Nos.74, 140, 143, 146 & 147 of 2023 within a period of two (02) months from the date of first appearance of the parties before the Commissioner, GHMC. Consequential direction of the learned Single Judge directing construction of phased boundary wall between Bellezza and Meridian by maintaining 16 meters setback on all sides is hereby set aside. However, we clarify that we have not decided anything on merit and all contentions are kept open.
29. Writ Appeals are accordingly disposed of. However, there shall be no order as to costs.
30. As a sequel, miscellaneous applications pending, if any, in all these Writ Appeal, shall stand closed.
_______________________ UJJAL BHUYAN, CJ ______________________ N.TUKARAMJI, J Date: 22.02.2023 KL