Reliance Industries Ltd. And Anr vs The Mumbai Metropolitan Region ...
2021 Latest Caselaw 9036 Bom

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              ORDINARY ORIGINAL CIVIL JURISDICTION
                 INTERIM APPLICATION NO.2171 OF 2020
                                          IN
                       WRIT PETITION NO.242 OF 2018

Reliance Industries Limited and another                   ...        Applicants
In the matter between
Reliance Industries Limited and another                   ...        Petitioners
Vs.
Mumbai Metropolitan Region Development
Authority (MMRDA) and others                              ...        Respondents


Dr. Milind Sathe, Senior Advocate a/w. Mr. Vikram Nankani, Senior
Advocate, Mr. Vikramaditya Deshmukh, Mr. Amey Nabar, Ms. Gitanjali
Sharma i/b. A. S. Dayal & Associates for Applicants / Petitioners.
Mr. Prasad Dhakephalkar Senior Advocate a/w. Mr. Aditya Shiralkar, Mr.
Nivit Srivastava and Ms. Sneha Patil i/b. Maniar Srivastava Associates for
Respondent Nos.1 to 3.

                                    CORAM : UJJAL BHUYAN &
                                            PRITHVIRAJ K. CHAVAN, JJ.

                         Reserved on   :       JUNE 29, 2021
                         Pronounced on :       JULY 12, 2021


ORDER : (Per Ujjal Bhuyan, J.)

Heard Dr. Sathe, learned senior counsel for the applicants and Mr. Dhakephalkar, learned senior counsel for the respondents.

2. This interim application has been filed by the applicants seeking a direction to the respondents to process all the applications filed by the applicants including the application dated 03.02.2020 of the architect of the applicants for grant of part occupation certificate in accordance with law without insisting upon payment of the demand impugned in the related petition.

3. Applicants are the original petitioners in the related writ petition.

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4. For a proper appreciation of the reliefs claimed by the applicants it would be apposite to briefly narrate the factual matrix of the case as pleaded without however delving deep into the rival contestations.

5. In November 2005, first respondent i.e., Mumbai Metropolitan Region Development Authority (for short "MMRDA" hereinafter) invited tenders for leasing out a plot of land admeasuring 75,000 sq.mtrs. being No.C-64 in G-Block of Bandra Kurla Complex covered by C.T.S. No.4207, Village Kole Kalyan, Taluka Andheri in the district of Mumbai Suburban for the purpose of construction of Convention and Exhibition Centre and Commercial Complex.

5.1. Applicants submitted tender for lease of the said plot of land.

5.2. First respondent informed applicants vide letter dated 15.02.2006 that it had approved allotment of the land to the applicants. Maximum permissible built up area was declared as 65,000 sq.mtrs. for the Convention and Exhibition Centre and 50,000 sq.mtrs. for the Commercial Complex. While lease period was of 80 years, premium payable was assessed at Rs.1104 crores.

5.3. It is stated that applicants had paid the aforesaid premium amount of Rs.1104 crores.

5.4. Pursuant thereto lease deed dated 01.09.2006 was executed between the applicants and respondent No.1 i.e., MMRDA. It is stated that applicants had paid stamp duty of approximately Rs.55 crores on the lease deed. We would advert to the relevant clauses of the lease deed at a later stage of this order. Suffice it to say that upon execution of the lease deed respondent No.1 handed over possession of the said plot of land to the applicants.

5.5. After receiving possession of the land, applicants applied to

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various authorities for permission to carry out the construction.

5.6. In February, 2007 applicants applied before respondent No.1 for additional built up area of 72,500 sq.mtrs. for the Convention and Exhibition Centre and Commercial Complex. This request of the applicants was accepted by respondent No.1 for a premium of Rs.696 crores. This was conveyed to the applicants by respondent No.1 vide letter dated 07.05.2007. Be it stated that out of the additional built up area of 72,500 sq.mtrs., 41,000 sq.mtrs. was for the Convention and Exhibition Centre and the remaining 31,500 sq.mtrs. was for the Commercial Complex.

5.7. This was followed by execution of supplementary lease deed dated 13.07.2007 between respondent No.1 and the applicants in respect of the additional built up area of 72,500 sq.mtrs. Applicants also submitted plans before respondent No.1 for construction of the Convention and Exhibition Centre and Commercial Complex upto the plinth level which was to be a unified structure.

5.8. In the meanwhile, a writ petition was filed by Reliance Communications and Infrastructure Limited challenging the grant of additional Floor Space Index (FSI) with regard to the Convention and Exhibition Centre and also grant of additional FSI with regard to the Commercial Complex to applicant No.1 (arrayed as respondent No.3) after tender was accepted. The writ petition was registered as Writ Petition No.1165 of 2007. A Division Bench of this Court by order dated 15.10.2007 admitted the said writ petition and passed an interim order restraining respondent No.3 (applicant No.1 herein) from utilizing the additional FSI of 31,500 sq.mtrs. which was allocated for the purpose of commercial complex.

5.9. Though respondent No.1 issued commencement certificate in July, 2008 i.e., on 12.06.2008 upto plinth level in respect of the plans

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submitted by the applicants for the Convention and Exhibition Centre and Commercial Complex wherein a common integrated monolithic basement was proposed, applicants could not start construction in view of the stay order. This was intimated by the applicants to respondent No.1.

5.10. Respondent No.1 vide letter dated 18.02.2009 informed the applicants that there was no restraint by the High Court regarding construction of the Convention and Exhibition Centre. However, applicants in their letter dated 16.03.2009 explained that because of the writ petition and the stay order, they were unable to prepare the designs of the proposed development as the outcome of the writ petition could potentially jeopardize the entire project. Subsequently, applicants clarified that work would be commenced only after final order was passed in the writ petition. It may be mentioned that because of the litigation, applicants even offered to surrender the additional built up area of 72,500 sq.mtrs. to respondent No.1 in lieu of refund of premium amount of Rs.696 crores paid.

5.11. Following its 129th meeting held on 08.09.2011, respondent No.1 informed the applicants about the decision taken for allotment of additional FSI to the lessees of G-Block. In this connection, respondent No.1 vide letter dated 08.11.2011 offered additional built up area to the applicants mentioning that there would be no time-limit for construction in the additional built up area.

5.12. On 12.03.2012 petitioners in Writ Petition No.1165 of 2007 withdrew the writ petition. Consequently, the writ petition was disposed of as withdrawn and thus the interim order operating therein since 15.10.2007 stood vacated.

5.13. On 20.03.2012, respondent No.1 approved allotment of additional built up area of 1,00,000 sq.mtrs. against total premium of Rs.1470

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crores to the applicants. The premium amount has since been paid by the applicants. It appears that further additional area of 25,000 sq.mtrs. was allotted by respondent No.1 to the applicants on payment of Rs.367.5 crores as premium.

5.14. In view of allotment of additional built up area, applicants revised their plans and submitted the same to respondent No.1 for approval and for issuance of commencement certificate.

5.15. Respondent No.1 issued commencement certificate dated 16.04.2014 for construction of the Convention and Exhibition Centre and the Commercial Complex. It is stated that the plan submitted by the applicants to respondent No.1 which was approved vide commencement certificate dated 16.04.2014 was of a composite building consisting Convention and Exhibition Centre and Commercial Complex. The said commencement certificate was granted upto 7 th floor for the proposed built up area of 1,70,739.20 sq.mtrs.

5.16. On 23.12.2016, further commencement certificate was issued for the Convention and Exhibition Centre and Commercial Complex above 7th floor and upto 11th floor for proposed built up area of 2,62,905.36 sq.mtrs. This was followed by another commencement certificate dated 17.04.2017 for 12th to 14th floors having built up area of 26,349 sq.mtrs. Finally on 19.05.2017 respondent No.1 issued commencement certificate above 14th floor and part of 15th floor having built up area of 3475.95 sq.mtrs.

5.17. Applicants have stated that towards allotment of the said plot of land and for grant of additional built up area, they have paid an amount of Rs.4005 crores to respondent No.1 details of which have been furnished in the form of a statement which is extracted hereunder:

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Sr. Description Date Built up area allotted Cost No. (Rs. in Convention Commercial Total Crores) Centre Complex

1 Originally 15.02.2006 65,000 50,000 1,15,000 1,104 allotted 2 Additional 17.05.2007 41,000 31,500 72,500 696 Built up area purchased 3 Additional 14.03.2012 1,00,000 1,00,000 1,470 Built up area 4 Additional 29.03.2012 25,000 25,000 367.5 Built up area 5 Interest on 367.5 additional built up area (item 3 and 4 above) Total 1,06,000 2,06,500 3,12,500 4,005

5.18 According to the applicants, they have substantially carried out construction of the proposed Convention and Exhibition Centre and Commercial Complex. The concrete structure is 90% complete. Once the entire structure is completed, the interior works would be undertaken.

5.19. It was in this background that applicants received notice dated 12.09.2017 issued by the Deputy Metropolitan Commissioner, MMRDA. As per the said notice, clause 2(d) of the lease deed dated 01.09.2006 cast an obligation upon the applicants to erect and completely finish construction fit for occupation within four years from the date of the lease deed which period had already expired on 01.09.2010. However, construction was yet to be completed. There was delay of seven years twelve days for which the applicants were required to pay penalty for the entire period of delay till completion of the construction fit for occupation. Therefore, by exercising powers conferred by clauses 5 and 6 of the deed of lease dated 01.09.2006,

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applicants were called upon to remedy the requisition within 30 days failing which it was stated that MMRDA would have the right to determine the lease and to recover the due amount as arrears of land revenue.

6. Aggrieved by the said notice dated 12.09.2017, applicants as the petitioners filed the related writ petition before this Court assailing the legality and validity of the said notice on various grounds. The writ petition was originally registered as Writ Petition (L) No.3395 of 2017. A Division Bench of this Court by order dated 08.12.2017 had issued notice and recorded a statement made by learned counsel for the respondents that till the next date of hearing no coercive steps would be taken against the applicants pursuant to the impugned demand notice dated 12.09.2017.

7. It may be mentioned that similar demand notices were issued to other lessees holding plots of land in the Bandra Kurla Complex upon execution of deeds of lease by them with MMRDA which included Raghuleela Builders Private Limited. Raghuleela Builders Private Limited and applicant No.1 as the original petitioners filed Writ Petition (L) No.2654 of 2017 before this Court challenging the legality and validity of similar demand notice.

8. The present writ petition was subsequently heard along with Writ Petition (L) No.2654 of 2017 and another writ petition. When counsel for the petitioners in Writ Petition (L) No.2654 of 2017 complained before the Court that respondent No.1 was insisting upon deposit of the amount as per the demand notice for processing the no objection certificates applied for by the petitioners, a Division Bench of this Court passed order dated 12.12.2017 directing that without prejudice to the rights and contentions of the parties, respondent No.1 should process the application of the petitioners in accordance with law without insisting upon payment of the amount demanded as per the impugned demand

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notice while continuing with the interim order passed earlier.

9. Subsequently Writ Petition (L) No.3395 of 2017 filed by the applicants came to be registered as Writ Petition No.242 of 2018. Interim order dated 08.12.2017 was extended from time to time and presently holds the field.

10. On 06.02.2019, architect of the applicants submitted an application before the Town and Country Planning Division of respondent No.1 for grant of part occupation certificate for 44,621 sq.mtrs. of built up area. That apart, applicants addressed two letters both dated 18.02.2019 to respondent No.1 which were without prejudice to the stand taken in the writ petition projecting two scenarios for the alleged delay in construction in terms of the lease deed dated 01.09.2006. In the first scenario, applicants excluded the period from 15.10.2007 to 12.03.2012 while computing the alleged delay in construction. This was on account of the stay order passed in Writ Petition No.1165 of 2007 operating during that period. As per this scenario, the construction ought to have been completed by 30.01.2015 (as per interpretation of the respondents). The total amount of additional premium for this period was assessed at Rs.668,09,89,270.00 out of which an amount of Rs.21,32,20,676.00 was to be deducted as tax deduction at source (TDS). Thus the balance amount of Rs.646,77,68,594.00 was paid by the applicants to respondent No.1 under protest on account of alleged delay in construction from 30.01.2015 to 17.02.2019. It is stated that the second scenario contemplated by the applicants included the period during which the stay order was in operation. As per this scenario, the construction ought to have been completed by 01.09.2010. Computing the delay and the additional premium amount from 01.09.2010 to 17.02.2019, the additional premium amount together with interest was assessed at Rs.1980,64,74,557.00.

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10.1. It may be mentioned that applicants made payment of Rs.668,09,889,270.00 to respondent No.1 on 18.02.2019. In so far the balance amount of Rs.1312,54,85,287.00 (Rs.1980,64,74,557.00 - Rs.668,09,89,270.00) is concerned, applicants furnished a bank guarantee dated 18.02.2019 in favour of respondent No.1.

11. After receipt of the aforesaid amount and bank guarantee, respondent No.1 issued part occupation certificate for 44,621 sq.mtrs. of built up area on 20.02.2019 as sought for by the architect of the applicants on 06.02.2019.

12. However, the applicants were served with another letter dated 13.06.2019 issued by Chief, Land and Estate Cell / Joint Metropolitan Commissioner, MMRDA. As per this letter, it was stated that in terms of the supplementary lease deed dated 13.07.2007, applicants were required to complete construction of the additional built up area of 72,500 sq.mtrs. within four years from the date of lease deed. Since there was delay in completion of construction on the additional built up area, additional lease premium would have to be paid which was assessed at Rs.1116,83,10,102.00. Applicants were called upon to make the said payment.

13. Notwithstanding issuance of the above demand notice, applicants through their architect submitted application before the Town and Country Planning Division of respondent No.1 for further part occupation certificate for 1,24,000 sq.mtrs. of built up area annexing therewith the required documents. However, respondents did not process the said application and was insisting upon payment of Rs.1116,83,10,102.00 as a condition precedent for further approval(s).

14. In the circumstances, applicants filed an interim application for amendment of the writ petition incorporating therein challenge to the demand notice dated 13.06.2019 as well.

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14.1. A Division Bench of this Court passed an order on 21.01.2021 allowing the prayer for amendment. Accordingly, the amendments were carried out.

15. Thus Writ Petition No.242 of 2018, as it stands now, challenges both the demand notices dated 12.09.2017 and 13.06.2019.

16. Respondents have contested the writ petition by filing affidavit in reply. Stand taken by the respondents is that in the writ petition applicants have raised a contractual dispute which also involves disputed questions of fact. Therefore, the Court should not entertain the writ petition. On merit, it is contended that clauses 2(d) and 2(e) of the lease deed clearly mandates that the lessee i.e., applicants were required to complete construction within a period of four years from the date of the lease deed failing which the Metropolitan Commissioner was empowered to grant extension of time to the lessee for completion of construction but on payment of additional premium. It is contended that applicants had signed the lease deed being fully aware of such condition. Therefore, applicants cannot now contend that such a clause has become oppressive and thus arbitrary. In so far the stay order of this Court in Writ Petition No.1165 of 2007 is concerned, it is contended that the same was in respect of additional built up area of 31,500 sq.mtrs. for commercial complex. As per clause 2(d) of the lease deed, construction of Convention and Exhibition Centre was to be commenced before commencement of construction of Commercial Complex.

17. Applicants have filed rejoinder to the said reply affidavit of the respondents asserting maintainability of the writ petition and arbitrariness in imposition of additional premium.

18. Post amendment of the writ petition, respondents have filed additional reply affidavit.

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19. In so far the interim application is concerned, respondents have contested the same by filing reply affidavit. It is stated that applicants have paid the dues pertaining to 1,15,000 sq.mtrs. of the land in February, 2019 following which partial occupation certificate in respect of 44,261 sq.mtrs. was processed and granted by the respondents. Thereafter dues in respect of 72,500 sq.mtrs. allotted to the applicants under the supplementary lease deed dated 13.07.2007 were raised and communicated to the applicants vide letter dated 13.06.2019. Respondents have justified issuance of the second demand notice dated 13.06.2019 and submits that without payment of the additional premium of Rs.1116,83,10,102.00, it would not be possible to process and issue further part occupation certificate. It has also been contended that grant of the interim reliefs sought for would virtually amount to grant of final reliefs in the writ petition.

20. Dr. Sathe, learned senior counsel for the applicants submits that two lease deeds were executed between the parties; first lease dated 01.09.2006 covering an area of 1,15,000 sq.mtrs; and second supplementary lease deed is dated 13.07.2007 covering an additional area of 72,500 sq.mtrs; thereafter on 20.03.2012 an additional area of 1,00,000 sq.mtrs. was allotted to the applicants. The Convention and Exhibition Centre and Commercial Complex is being constructed by the applicants as one composite structure covering all the lands. Therefore, there could not have been any part construction. He submits that respondent No.1 issued commencement certificate on 16.04.2014 and the period of four years in terms of clause 2(d) of the lease deed dated 01.09.2006 should be computed from that date. In this connection, learned senior counsel has extensively referred to clauses 2(d) and 2(e)

(i) of the lease deed dated 01.09.2006. Referring to the letter dated 08.11.2011 of respondent No.1 addressed to applicant No.1, he submits that while making available additional built up area of 1,00,000 sq.mtrs. to the applicants it was clarified that there was no time-limit for

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construction of the additional built up area. That apart, it was mentioned that the allottee would be at liberty to transfer the entire allotted additional built up area. According to him respondents themselves realized that the construction period of four years was wholly inadequate and therefore, in the 138th meeting of MMRDA held on 26.08.2015, it was resolved as per item No.14.3 to extend the construction period from four years to six years.

20.1. Next contention of Dr. Sathe is that the period of Court stay or stay order passed by the High Court should be excluded while computing the period of alleged delay. He submits that in Writ Petition No.1165 of 2007, a Division Bench of this Court passed order dated 15.10.2007 restraining respondent No.3 therein (applicant No.1 herein) from utilizing the additional FSI of 31,500 sq.mtrs. He submits that because of the litigation and the stay order passed by this Court, the entire project was thrown into an uncertainty and in such uncertainty applicants could not commence construction which was duly informed to respondent No.1. Ultimately, petitioners in Writ Petition No.1165 of 2007 withdrew the writ petition and therefore, vide order dated 12.03.2012 this Court disposed of the writ petition as withdrawn. As a result, the interim order was vacated. He, therefore, submits that the period when the stay order was operating i.e., from 15.10.2007 to 12.03.2012 should be excluded while computing the period of alleged delay.

20.2. Final submission of Dr. Sathe is that in the identical case filed by Raghuleela Builders Private Limited and applicant No.1 i.e., Writ Petition (L) No.2654 of 2017 which was subsequently registered as Writ Petition No.586 of 2018, a Division Bench of this Court vide judgment and order dated 20.11.2019 declared demand of penalty in the form of additional premium and interest thereon as untenable, without jurisdiction and non est. The same was quashed and set aside as void ab initio. Petition for Special Leave to Appeal (C) No.6411 of 2020 filed by

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MMRDA before the Supreme Court against the aforesaid judgment was dismissed on 27.07.2020 though it was clarified that the decision was in the given facts of the case and would not influence any other matter. However, Dr. Sathe has referred to the reasonings given by this Court in Raghuleela Builders Private Limited (supra) and submits that the issue involved in the present writ petition is identical to the one adjudicated therein. He submits that this Court has clearly held that in such type of contracts, time is not the essence since for construction of any building in Bandra-Kurla Complex several permissions from various authorities are required. He, therefore, submits that this Court may adopt the reasoning given in Raghuleela Builders Private Limited (supra) and grant interim reliefs to the applicants as sought for; in fact his submission is that the writ petition itself can be disposed of by applying the ratio in Raghuleela Builders Private Limited (supra).

21. On the other hand Mr. Dhakephalkar, learned senior counsel for the respondents has referred to the lease deed dated 01.09.2006 and submits that the Convention and Exhibition Centre and Commercial Complex is not one integrated building; Convention and Exhibition Centre is a different building whereas the Commercial Complex is a different building. To support the above contention, he has referred to the first proviso to clause 2(d) of the lease deed which says that construction of Convention and Exhibition Centre shall be commenced before commencement of construction of Commercial Complex. He submits that for additional built up area of 72,500 sq.mtrs., there is supplementary lease deed dated 13.07.2007 with same terms and conditions. As per both the lease deeds the construction had to be completed within four years from the date of the lease failing which the Metropolitan Commissioner had the discretion to extend the time-limit for completion of construction but on payment of additional premium at the rates mentioned in clause 2(e)(i) of the lease deed dated 01.09.2006. In so far grant of additional built up areas of 1,00,000 sq.mtrs. on 20.03.2012 and 25,000 sq.mtrs. on 03.04.2012 are concerned, he submits

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that there is no lease deed for such additional built up areas. Consequently, there is no time-limit for completion of construction. This has been explained in the letter of respondent No.1 dated 08.11.2011 addressed to applicant No.1.

21.1. In so far stay order passed by this Court on 15.10.2007 is concerned, he submits that the writ petition was filed by another Reliance entity i.e., Reliance Communications and Infrastructure Limited but in the order dated 15.10.2007, respondent No.3 i.e., applicant No.1 herein was restrained from utilizing the additional FSI of 31,500 sq.mtrs. allocated for the purpose of Commercial Complex. He, therefore, submits that the restraint order passed by this Court did not impact the entire land including the land covered by the first lease deed dated 01.09.2006. It was restricted to 31,500 sq.mtrs. of the additional built up area covered by the supplementary lease deed dated 13.07.2007 for the purpose of the Commercial Complex only. This restraint order cannot be used as a shield to justify delayed construction of the entire project. He submits that the very same Reliance entity i.e., Reliance Communications and Infrastructure Limited simply withdrew the writ petition on 12.03.2012 pursuant to which the restraint order passed earlier stood vacated.

21.2. Mr. Dhakephalkar has also taken the Court to the undertaking given by the applicants to respondent No.1 on 14.12.2016 that applicant No.1 would make payment of premium along with interest to MMRDA for grant of extension of time for completion of construction of the building before receipt of occupation certificate. In view of such undertaking, he submits that applicants are estopped from seeking the interim reliefs now.

21.3. Responding to the Division Bench judgment of this Court in Raghuleela Builders Private Limited (supra) relied upon by learned counsel for the applicants, he submits that this judgment is clearly

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distinguishable from the facts of the present case. In this connection, he has referred to paragraph 24 of the said judgment as well as the order of the Supreme Court dated 27.07.2020 whereby though the S.L.P. filed by MMRDA against the decision of this Court in Raghuleela Builders Private Limited (supra) was dismissed nonetheless it was clarified by the Supreme Court that the decision rendered in Raghuleela Builders Private Limited (supra) would not influence any other matter.

21.4. Mr. Dhakephalkar argued that the lease deed dated 01.09.2006 and supplementary lease deed dated 13.07.2007 are statutory leases in prescribed Form D under the MMRDA (Disposal of Land) Regulations, 1977 and therefore would have to be construed and complied with strictly without any dilution. As a matter of fact, 74 lessees had completed their construction within the stipulated period of four years whereas 36 lessees committed delay in construction for which these lessees paid the additional premium raised.

21.5. Summing up his arguments Mr. Dhakephalkar submits that applicants are not at all entitled to any interim relief much less a positive verdict in the related writ petition. Interim application should, therefore, be dismissed.

22. In his brief reply submissions, Dr. Sathe, learned senior counsel for the applicants submits that respondents issued commencement certificate for construction only upto the 7 th floor on 16.04.2014. Construction could be commenced only after receipt of commencement certificate. Referring to the undertaking given by the applicants on 14.12.2016 and on which much emphasis has been placed by Mr. Dhakephalkar, Dr. Sathe submits that respondents had insisted upon the applicants to pay the penalty imposed as a condition for grant of further commencement certificates without which construction could not have been continued. In such circumstances, applicants were constrained rather coerced into giving such undertaking. He, therefore, submits that

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respondents may be directed to process applications of the applicants for grant of part occupation certificate without insisting upon payment of additional premium in terms of the second impugned notice dated 13.06.2019.

23. Submissions made by learned counsel for the parties have been duly considered.

24. Short point for consideration in this interim application is as to whether applicants are entitled to the interim reliefs as sought for.

25. There is no dispute that applicants had paid Rs.1104 crores for the initial total built up area of 1,15,000 sq.mtrs. as per lease deed dated 01.09.2006. Out of the aforesaid land area, 65,000 sq.mtrs. was for the Convention and Exhibition Centre and 50,000 sq.mtrs. was for the Commercial Complex. For the subsequent additional built up area of 72,500 sq.mtrs. covered by the supplementary lease deed dated 13.07.2007, applicants paid amount of Rs.696 crores. Thereafter respondent No.1 allotted further additional built up area of 1,00,000 sq.mtrs. for which applicants made payment of Rs.1470 crores though there is no lease deed for such additional built up area of 1,00,000 sq.mtrs. For further allocation of additional built up area of 25,000 sq.mtrs., applicants had paid Rs.367.5 crores. Thus, with interest applicants had paid a total of Rs.4005 crores to respondent No.1 details of which have been mentioned in paragraph 5.17 of this order.

26. It is also not in dispute that respondent No.1 issued commencement certificate for construction of the Convention and Exhibition Centre and Commercial Complex upto 7 th floor on 16.04.2014. Thereafter subsequent commencement certificates were issued. According to the applicants, it was only after issuance of the commencement certificate dated 16.04.2014 that they could substantially carry out the construction, the concrete structure of which at the time of

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filing the writ petition was 90% complete.

27. When respondent No.1 issued the first demand notice dated 12.09.2017 alleging that construction of the Convention and Exhibition Centre and Commercial Complex has gone beyond four years for which applicants are required to pay additional premium, the same was put to challenge by the applicants before this Court by filing Writ Petition (L) No.3395 of 2017. When notice was issued on the said writ petition by this Court on 08.12.2017, a statement was made by learned counsel for the respondents that till the next date of hearing, no coercive steps would be taken against the applicants pursuant to the impugned demand notice dated 12.09.2017. This statement made by learned counsel for the respondents was recorded by this Court in the order dated 08.12.2017. As already noted, Writ Petition (L) No.3395 of 2017 has since been registered as Writ Petition No.242 of 2018.

28. At this stage we may advert to the relevant clauses of the lease deed dated 01.09.2016 which finds place mutatis mutandis in the supplementary lease deed dated 13.07.2007. As per clause 2 of the lease deed dated 01.09.2006, the lessee had agreed to observe and perform the conditions mentioned therein. Clause 2(a) deals with submission of plans for approval. As per this provision, the lessee is required to submit to the competent officer of respondent No.1 within three months of the lease deed the plans, the elevations, sections, specifications and details of the buildings for approval. As per clause 2(b), the plot of land in question should be fenced by the lessee at his own expense during the construction period. Clause 2(c) makes it clear that no work should begin until plans are approved. Clause 2(d) provides for the time-limits for commencement and completion of construction work. It says that the lessee shall within three months from the receipt of approval of its plans and specifications commence construction and within a period of four years from the date of the lease build completely finish the construction. As per the first proviso, construction of the Convention and Exhibition

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Centre shall be commenced before commencement of construction of Commercial Complex. Clause 2(e) deals with extension of time stipulated for construction of building or development of land. As per clause 2(e)(i), if the lessee does not perform and observe the time-limits as mentioned in clause 2(d) for construction of the Convention and Exhibition Centre and Commercial Complex for reasons beyond his control, the Metropolitan Commissioner may permit extension of such time for completion of construction on payment of additional premium at the rates mentioned therein.

29. It is a settled proposition that different clauses of an instrument like a lease deed are to be read as a whole and not in isolation. That apart, clauses of a lease deed, be it statutory, would have to be read in a pragmatic and meaningful manner. While clause 2(c) specifically mandates that no construction work shall commence until and unless the plans etc. are approved by the competent authority, clause 2(d) on the other hand states that while the lessee is required to commence construction within three months of approval, however, the construction would have to be completed within a period of four years from the date of the lease. Prima facie there is some dichotomy in the above provisions. While the lease mandates commencement of construction within three months of approval, however, such a construction would have to be completed within four years of the lease deed. In the instant case, the lease deed is dated 01.09.2006. If literally read, clause 2(d) would imply that the construction would have to be completed by 01.09.2010. But in the instant case, the first commencement certificate upto the plinth level was issued on 12.06.2008; thereafter the effective commencement certificate for construction upto 7 th floor came to be issued only on 16.04.2014 much beyond the limitation period of four years and it was only thereafter that construction work could be commenced. This was followed by commencement certificates dated 23.12.2016, 17.04.2017 and 19.05.2017 for construction of the floors beyond the 7th floor. Thus there were multiple commencement

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certificates. Without issuance of each commencement certificate further construction was not possible. The first approval or commencement certificate is dated 12.06.2008 and the last approval or commencement certificate is dated 19.05.2017. On the one hand the lessee could not commence construction without receiving approval but on the other hand the construction would have to be completed within a period of four years from the date of the lease deed. Thus, there appears to be an anomalous situation which is required to be reconciled by purposive interpretation. Dependent upon such interpretation would hinge upon the question of any delay in construction and the resultant issue of demand for payment of additional premium. Therefore, the question which would require adjudication in the writ petition is whether on the facts and circumstances of the case the demand for payment of additional premium on account of alleged delay in construction is arbitrary and unreasonable and thus violative of Article 14.

30. In fact by issuing notice, this Court is seized of the matter and the demand for additional premium as per the demand notice dated 12.09.2017 would be dependent upon such adjudication.

31. Nonetheless without prejudice to their rights and contentions and under protest, applicants have paid an amount of Rs.646,77,68,594.00 (excluding TDS) to respondent No.1 and in addition furnished bank guarantee in favour of respondent No.1 for an amount of Rs.1312,54,85,287.00.

32. When this Court is in seisin of the matter and learned counsel for the respondents had made a solemn statement before the Court on 08.12.2017 that till the next date of hearing no coercive steps would be taken against the applicants pursuant to the demand notice dated 12.09.2017, which continued to be extended, a prima facie view can be taken that respondents ought not to have issued the subsequent demand notice dated 13.06.2019 to the applicants for payment of

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Rs.1116,83,10,102.00 as additional lease premium pertaining to the supplementary lease deed dated 13.07.2007. A view can also be taken that such an action on the part of the respondents amounts to overreaching the proceedings pending before this Court but that would have to wait till adjudication of the related writ petition. In the meanwhile, as we have noted above, interest of the respondents has been well protected by payment of premium of Rs.4500 crores, additional premium of Rs.646,77,68,594.00 (under protest) and furnishing of bank guarantee of Rs.1312,54,85,287.00 (under protest) by the applicants. That apart, the project that is being constructed i.e., Convention and Exhibition Centre and Commercial Complex is of considerable public importance for the city of Mumbai. When one part occupancy certificate has been issued, withholding subsequent occupancy certificate would not be reasonable. We also note that in the case of Raghuleela Builders Private Limited (supra), this Court had passed an interim order on 12.12.2017 that respondent No.1 should process the application of the petitioners in accordance with law without insisting upon payment of additional premium which was not challenged.

33. Thus having regard to the above and taking an overall view of the matter, as an interim measure, we direct the respondents to process the applications of the applicants including the one dated 03.02.2020 of their architect for grant of part occupation certificate without insisting upon payment of the amount as per subsequent demand notice dated 13.06.2019. However, grant of such part occupation certificate would be subject to outcome of the writ petition.

34. Registry is directed to expedite hearing of the related writ petition i.e., Writ Petition No.242 of 2018.

35. Interim application is disposed of.

(PRITHVIRAJ K. CHAVAN, J.)                       (UJJAL BHUYAN, J.)

Minal Parab                                                                  20/20