Bombay High Court
Nimesh Pravin Vasa And Ors vs Maharashtra Housing And Area ... on 2 August, 2024
Author: Amit Borkar
Bench: Amit Borkar
2024:BHC-AS:30952-DB
pil-43-2014 with connected-Final.doc
Shabnoor/VRJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO.43 OF 2014
VAIBHAV
RAMESH
JADHAV 1. Nimesh Pravin Vasa
Digitally signed by
VAIBHAV RAMESH
JADHAV
Date: 2024.08.05
15:12:47 +0530
Adult, Indian Inhabitant,
Residing at 13/A, Thakur Tower,
Opp. S. K. Dairy, Virar (W),
Tal : Vasai, Dist-Thane 401 303
2. Peter Thomas Fernandes
Adult, Indian Inhabitant,
Residing at Cicilia Cottage,
Kumari Wadi, Tam Talao,
Tal : Vasai, Dist-Thane 401 201
3. Sandra Domnic D'silva
Adult, Indian Inhabitant,
Residing at Partosh Building,
C/501, Premium Park,
Bolinj Agashi Road, Virar (W)
Tal : Vasai, Dist-Thane 401 303 ... Petitioners
V/s.
1. Maharashtra Housing & Area
Development Authority, A Corporation
Constituted under the provisions of u/S.
(3) of the Maharashtra Housing And
Area Development Act, 1976
Having its office at 172, Grihanirman
Bhavan, Kalanagar, Bandra (E),
Mumbai - 400 051.
2. Konkan Housing And Area
Development Board, A Board
constituted under Section 18 of the
Maharashtra Housing And Area
Development Act, 1976 Having Their
Office At 172, Grihanirman Bhavan,
Kalanagar, Bandra (E), Mumbai - 400
051.
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3. Vasai-Virar City Municipal Corporation,
A Corporation Constituted under S...of
Bombay Provincial Municipal
Corporation Act, Having Their Office At
Pandharinath Choudhari Marg, Virar
(East), Tal: Vasai, Dist: Thane 401 305
4. City And Industrial
Development Corporation Of
Maharashtra Ltd., A Company Duly
Incorporated Under the Provisions of
the Companies Act, 1956 Appointed as
Special Town Planning Authority Under
Section 40 of Maharashtra Regional And
Town Planning Act, 1960 Having Their
Planning Act, 1960 Having Their Office
at the Chief Officer, (Thane Region)
CIDCO of Maharashtra Ltd. CBD-
Belapur, Navi Mumbai
5. M/s. Virar-Bolinj Sai-Ram
Co-operative Housing Society Ltd.,
A Co-operative Housing Society
Registered Under the Provisions of
Maharashtra Housing Co-operative
Societies Act, 1960 Having Their Office
At Plot No.13, Village: Bolinj-Virar
Bolinj Agashi Road, Tal: Vasai, Dist
Thane
6. M/s. Virar-Bolinj Sai-Charan
Co-operative Housing Society Ltd.,
A Co-operative Housing Society
Registered under the Provisions of
Maharashtra Housing Co-operative
Societies act, 1960 Having Their Office
At Plot No.12, Village : Bolinj-Virar
Bolinj Agashi Road, Tal : Vasai, Dist :
Thane
7. M/s. Virar-Bolinj Shakti Co-operative
Housing Society Ltd., A Co-operative
Housing Society Registered Under the
Provisions of Maharashtra Housing Co-
operative Societies Act, 1960 Having
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Their Office At Plot No.11, Village :
Bolinj-Virar Bolinj Agashi Road,
Tal Vasai, District Thane
8. Government of Maharashtra
9. Prasad Hemant Mankar
Flat No.602, Virar Bolinj Sai Charan Co-
operative Housing Society, Near On the
Way Hotel Agashi Road, Virar (W)
Tal:Vasai, District Palghar ... Respondents
WITH
PUBLIC INTEREST LITIGATION NO.104 OF 2022
1. Kailash Hari Patil
Age-55, Occ-Business,
Residing at Patil Compound,
Opposite Riddhi Siddhi Industry,
Chandansar, Virar (E), Tal-Vasai,
Dist-Palghar, 401 305 ... Petitioner
V/s.
1. The State of Mtiaharashtra,
Through its Secretary,
Department of Housing,
Mantralaya, Mumbai
2. Maharashtra Housing & Area
Development Authority (MHADA),
Through its Chief Executive Officer,
Having its office at Griha Nirman
Bhavan, Kalanagar, Bandra (E),
Mumbai - 400 051.
3. Konkan Housing And Area
Development Board,
Through its Competent Authority,
Having Office at Griha Nirman Bhavan,
Kala Nagar, Bandra (E), Mumbai - 400
051.
4. Vasai Virar City Municipal Corporation,
Through the Municipal Commissioner,
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Having Office at VVCMC Head Office,
Opp. Virar Police Station, Bazaar Ward,
Virar (E), 401 305
5. Virar-Bolinj Sai Aashirwad Co-op
Housing Society Ltd.,
Through its Secretary, Plot No.1, Virar,
Bolinj, MHADA Layout, Agashi Road,
Virar (West) Palghar - 401 303.
6. Virar Bolinj Shree Ganesh Co-op Hsg.
Soc. Ltd., Through its Secretary,
Plot No.02, MHADA Layout, Bolinj,
Virar (West) - 401 303
7. Virar Bolinj Shree Krupa Co-op Hsg.
Soc. Ltd., Through its Secretary,
Plot No.04, MHADA Layout, Bolinj,
Virar (West) - 401 303
8. Virar Bolinj Shree Venkatesh Co-op
Hsg. Soc. Ltd., Through its Secretary,
Plot No.05, MHADA Layout, Bolinj,
Virar (West), Vasai Palghar
9. Virar Bolinj Shree Ambe
Co-op Hsg. Soc. Ltd., Through its
Secretary, Plot No.06, MHADA Layout,
Bolinj, Virar (West) 401 303
10.Virar Bolinj Yashwant Krupa Co-op Hsg.
Soc. Ltd., Through its Secretary,
Plot No.7, Near Sahyog Hospital,
Agashi Road, Virar (West), 401 303
11.Virar-Bolinj Yogiraj Co.op Hsg. Soc.
Ltd., Through its Secretary, Plot No.8,
MHADA Layout, Agashi Road, Virar (W)
Vasai, Palghar
12.Virar Bolinj Sai Charan
Co.op Hsg. Soc. Ltd., Through its
Secretary, Plot No.11, MHADA Layout,
Bolinj, Virar (West), 401 303
13. Virar Bolinj Shakti
Co.op Hsg. Soc. Ltd., Through its
Secretary, Plot No.12, MHADA Layout,
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Bolinj, Virar (West), 401 303
14. Virar Bolinj Sai Ram
Co.op Hsg. Soc. Ltd., Through its
Secretary, Plot No.13, MHADA Layout,
Bolinj, Virar (West), 401 303 ... Respondents
Dr. Uday P. Warunjikar a/w Mr. Aditya P. Kharkar, Ms. Sonali
Chavan, Mr. Siddhesh Pilankar, Ms. Gargi Warunjikar,
Ms.Sakshi Inamdar, Mr. Jenish Jain for the Petitioner in
PIL/43/2014.
Dr. Uday P. Warunjikar a/w Mr. Sumit Kate for the Petitioner in
PIL/104/2022.
Mr. P. P. Kakade, GP a/w Mr. O. A. Chandurkar, Addl. GP a/w
Mrs. G. R. Raghuwanshi, AGP for State.
Ms. Swati Sagvekear for Respondent No.3 in PIL No.43 of
2014 and for Respondent No.4 in PIL No.104 of 2022.
Mr. Sandesh D. Patil a/w Ms. Divya A. Pawar i/b. Ms. Anusha
Amin for Respondent No. 7 in PIL/43/2014.
Mr. Sandesh D. Patil a/w Ms. Divya A. Pawar i/b. Mr. Prithviraj
Gole for Respondent No. 12 in PIL/104/2022.
Mr. B. B. Sharma on (VC) for Respondent No.4 in PIL No.43 of
2014.
Mr. P. G. Lad a/w Ms. Sayali Apte a/w Ms. Shreya Shah for
Respondent No. 2 (MHADA).
Mr. P. G. Lad a/w Ms. Aparna Kalathil a/w Mr. Kunal Bhogani
for MHADA.
Mr. A. R. Gole a/w Ms. Vishwali Bolte for Respondent No.11.
CORAM : DEVENDRA KUMAR UPADHYAYA, CJ
&
AMIT BORKAR, J.
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RESERVED ON : JUNE 20, 2024
PRONOUNCED ON : AUGUST 2, 2024
JUDGMENT:
(PER AMIT BORKAR, J.)
1. Both PIL Petitions are being disposed of by this common
judgment, despite the petitioners in each petition being
different, due to the similarity of the facts giving rise to these
Public Interest Litigations (hereinafter referred to as "PIL
Petitions") and the commonality of the subject matter.
2. The factual matrix giving rise to the first PIL Petition (PIL
Petition No.43 of 2014) is as follows:
Respondent No.2, on 22nd September 2006, issued public
notices in the Newspapers inviting co-operative societies to
apply for allotment of plots of land situated at Virar Bolinj,
Taluka Vasai, District Thane. Based on such public notices,
respondent No.2 allotted plot No.13 to respondent Nos.5, 6
and 7 on 24 October 2006. On 6 January 2006, respondent
No.1 executed the lease deed of plot No.13 in favour of
respondent No.5. On 23 July 2009, respondent No.1 executed
a sale deed of plot No.11 in favour of respondent No.6. On 24
September 2009, respondent No.1 executed lease deed of
plot No.12 in favour of respondent No.7 and on 1 August 2009
pil-43-2014 with connected-Final.doc
the architect of respondent No.5 submitted a plan to
respondent No.4 seeking permission to construct proposed
residential-cum-commercial/shop building. On 28 August
2009, respondent No.4 issued an assessment order qua plot
No.13 and issued a commencement certificate. On 5
November 2009, respondent No.4 issued a stop work notice to
respondent No.5. On 2 February 2010, respondent No.4
withdrew a stop work notice dated 5th November 2009.
3. On 21 December 2010, respondent No.1, along with two
others, filed an application under the provisions of the Right
to Information Act, 2005, seeking information in relation to
development carried on by respondents Nos.5 to 7. On 19
January 2011, respondent No.2 furnished information to the
petitioners which revealed that:
(a) The land was allotted exclusively for residential
purposes and not for non-residential use;
(b) The land could not be transferred to any other
person for a period of five years;
(c) The land was allotted with F.S.I.-1.
4. The respondent Nos.1 and 2, therefore, on 27 January
2011, along with two others, sent a communication to the
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Chief Minister of Maharashtra, respondent No.2, the Collector
and respondent No.3, pointing out that the plot allotted to
respondent No.5 consisted of 22 members. However,
respondent No.5 got a plan sanctioned for 27 flats and 11
shops. It was stated that the lease clearly provided that the
land was allotted only for the bona fide use of members
without residential land use. Therefore, the sanctioned plan of
commencement certificate did not violate the lease deed and
scheme of allotment of plots to the cooperative housing
societies.
5. On 10 February 2011, respondent No.1 executed
supplementary deeds in favour of respondent Nos.5 to 7,
granting additional area of FSI measuring 920.59 square
meters, 971.92 square meters, and 910.66 square meters,
respectively. On 22 February 2011, respondent No.2 issued a
communication to respondent No.5 contending that the plot
was allotted to the co-operative housing society consisting of
22 members only for residential purposes. However, society
obtained approval for a plan for 22 flats and 11 shops, which
breaches the terms and conditions of the lease deed. On 16
March 2011, the Deputy Engineer, Konkan Division of
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respondent No.1, submitted a note to the Executive Engineer
communicating that the construction was up to ground plus
four floors was completed, and respondent No.5 construction
work was in progress. It is stated that prima facie
construction was not in accordance with the layout plan.
6. Accordingly, respondent No.3, by its letter dated 19 April
2011, issued a notice to respondent No.5 under Sections 52,
53 and 54 of the Maharashtra Regional and Town Planning
Act, 1966 (hereinafter referred to as "MRTP") alleging
unauthorized development.
7. On 21 April 2011, respondent No.3 amalgamated plots
Nos.11, 12 and 13 and granted composite development
permission to respondent Nos.5, 6 and 7. According to the
petitioners, permission indicates that respondent Nos.5 to 7
were constructing 21 flats, 12 shops and 36 offices in the
wing constructed on plot No.11; 17 flats, 10 shops and 4
offices in the wing on plot No.12 and 19 flats, 12 shops and
36 offices in the wing of plot No.13. According to the
petitioners, on 21 April 2011 respondent No.3 granted
development permission over all three plots to construct 27
flats, 34 shops and 112 offices.
pil-43-2014 with connected-Final.doc
8. On 27 April 2011, the Assistant Town Planner of
respondent No.2 sought an explanation from the Estate
Manager, Konkan Division of respondent No.1, as to whether it
was legally possible to allow 50% of the F.S.I. to be used for
commercial purposes on plot Nos.11, 12, and 13 allotted to
respondent Nos.5 to 7. On 16 February 2011, respondent
No.2 informed respondent No.3 that the land was allotted only
for residential use.
9. On 24 October 2011, respondent No.2 communicated to
respondent No.5 that 50% of the plot area could be permitted
to be used for commercial purposes. On 20 December 2011,
respondent No.3 granted revised development permission for
amalgamated plot Nos.11 to 13. On 31 January 2012,
petitioners issued notice through an advocate to the
respondents setting out the facts mentioned in the PIL
petition contending that the granting additional F.S.I. for the
use of commercial purposes and issuance of commencement
and revised certificate are in contravention of MRTP and
Maharashtra Housing and Area Development (Disposal of
Lands) Rules 1981 and the Development Control Regulations,
2001 for Vasai-Virar Sub-Region (MHADA). The issue was
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raised by the local MLA thereafter. The concerned Tehsildar
submitted a status report on 24 June 2013 indicating that plot
Nos.11 to 13 were allotted to the private developer for
residential-cum-commercial land use and two buildings of
ground plus six floors to be constructed.
10. According to the petitioners, the information they
received under the Right to Information Act, 2005 revealed
that the built-up area, which was the subject matter of the
development permission by order dated 21 April 2011 and 28
October 2011, was the same. Therefore, the petitioners on 7
January 2014 filed the first PIL Petition No.43 of 2014 seeking
prayer for cancellation of grant of additional F.S.I. by order
dated 10 February 2011 and further urging that development
permission dated 21 April 2011, 28 December 2011 and 3
January 2013; order of amalgamation of plot Nos.11, 12 and
13 to respondent Nos.5 to 7 and part occupancy certificate on
9 April 2013 are liable to be quashed and set aside.
11. In pursuance to the notice issued by this Court, the
respondents filed their affidavit-in-reply and contested the
petition, contending that the grant of additional F.S.I to
respondent Nos.5 to 7 was in consonance with policy
pil-43-2014 with connected-Final.doc
Resolution No.5988, which empowered respondent No.1 to
issue no objection certificate (NOC) for construction of
tenements by the co-operative societies on the plots owned
by respondent No.1. Clause No.13 of said Resolution
empowers respondent No.1 to distribute extra F.S.I. to the co-
operative societies or other allottees who have their flats in
the layout if such F.S.I. cannot be consumed by MHADA all
tenements subject to payment of minimum 25% premium.
12. Respondent No.3 filed an affidavit-in-reply and contested
the petition by contending that based on NOC granted by
respondent Nos.1 and 2 to respondent No.3, it was within its
power to sanction the plan and to grant part OC as the use of
additional F.S.I. by respondent Nos.5 to 7 was in consonance
with Development Control Regulations (DCR) of respondent
No.3. It is submitted that use of premises for commercial
purpose in residential area is as per the provisions of DCR and
development plan. It is stated that plots Nos.11 to 13 are part
of the entire larger layout prepared by respondent No.1.
13. Respondent No.7 filed its reply and prayed for the
dismissal of the petition on the grounds that the petition was
not a bona fide PIL, that it suffers from the vice of delay and
pil-43-2014 with connected-Final.doc
laches and non-joinder of the necessary party, and on the
alternative remedy as well petition can not be maintained. It
was stated that petitioner Nos.1 and 2 are politically active,
having connections with political parties. The petition is filed
with an object to gain political mileage and to seek publicity.
On the point of delay and laches, it was stated that
development permission dated 21 April 2011 has been
challenged by a petition filed in the year 2014 after the
construction of the building was almost complete. It is
submitted that without explanation of delay and laches, the
petition deserves to be dismissed. It is submitted that the
averments made in the petition make it clear that on the date
of construction, the ground plus three floors of the building
was completed. The developer has already created third-party
rights in respect of tenement constructed over all the
amalgamated plots. It is also submitted that persons other
than members of co-operative society in whose favour third
party interest was created and possession had been delivered,
many of whom had a mortgaged their properties to different
financial institutions, have not been joined as a party to the
PIL petition. Furthermore, it is submitted that petitioners have
alternative statutory remedies to challenge the grant of
pil-43-2014 with connected-Final.doc
additional F.S.I., order of amalgamation of plots and grant of
part occupancy certificate. Therefore, the present PIL petition
is not maintainable.
14. On 11th April 2022, this Court noted the preliminary
objection raised on behalf of respondent No.7 as to the
maintainability of a petition challenging the bona fide of
petitioners along with inordinate delay and latches as well as
non-joinder of necessary parties. This Court granted the last
opportunity to the petitioners to file a rejoinder in order to
persuade this Court to hold that the petition is maintainable,
overruling objections raised by respondent No.7.
15. On 16 June 2012, the petitioner in PIL No.104 of 2022
filed the present petition challenging NOC issued by
respondent No.3, granting 15% commercial use and 0.75
F.S.I. to respondent No.5 to 14 therein; revised development
permission granted respondent No.4 in favour of respondent
Nos.5 to 14; and the letters of allotment issued by respondent
Nos.2 to 3 in favour of respondent Nos.5 to 15.
16. The respondents contested PIL Petition No.104 of 2022
by filing their reply. The private respondent Nos.6 and 7
(Housing Societies) again raised the plea of absence of bona
pil-43-2014 with connected-Final.doc
fide intention in filing PIL by alleging that one of the
petitioners in PIL No.43 of 2014 is the legal advisor and
member of Agri Sena of which the petitioner in PIL No.104 of
2022 is the president. It is contended that the petition is
politically motivated. This Court, by order dated 20 June
2022, directed the petitioners in PIL No.43 of 2014 to deposit
Rs.1 lakh to show their bona fide based on an objection raised
by respondents on the point of delay and laches. It was stated
that the petitioner, on his own, showed that he was aware of
the allotment process and allotment in 2011, therefore, the
PIL Petition filed in 2022 after the completion of construction
and receipt of the part occupancy certificate, in the absence of
sufficient explanation, is barred by the principle of
unexplained delay and laches. The objection of non-joinder of
necessary party was again raised, contending that societies
have already created third-party rights and interests in
respect of the constructed portion, and such third parties have
mortgaged their properties to various financial institutions. All
such persons have not been joined as parties to the present
proceedings. It is stated that earlier PIL Petition No.43 of
2014 was pending; therefore, fresh PIL Petition seeking
similar reliefs on similar grounds deserves to be dismissed.
pil-43-2014 with connected-Final.doc
17. The private respondent Nos.12 to 14 (Housing Societies)
filed their reply raising similar objections raised on behalf of
respondent Nos.5 to 7. It is stated that PIL Petition No.104 of
2022 has been filed after the completion of pleadings in all
respects in PIL Petition No.43 of 2014, taking a clue from the
contention raised by respondents. It is stated that the
advocate for the petitioners in PIL Petition No.43 of 2014
shares the same office as the advocate appearing for the
petitioner in PIL No.104 of 2022. It is stated that the eligibility
of members of the housing society was scrutinized by
respondent No.2, and thereafter, plots were allotted to the
respective societies. It is further submitted that the
conversion of 15% of residential F.S.I. into commercial F.S.I.
was in exercise of power under clause 17(B) of Resolution
No.5998 dated 9th January 2004, for which the Chief Officer of
respondent No.2 empowered, subject to payment of premium.
18. Mr. Warunjikar, learned advocate for the petitioners,
urged that MHADA introduced the scheme in the year 2006
for the benefit of the middle-income group who have income
between Rs.10,000/- to 15,000/- per month and only one plot
bearing Plot No.1 was allotted for higher income group having
pil-43-2014 with connected-Final.doc
income above Rs.15,000/-. However, allotments were made in
favour of those who do not fall under the middle-income or
higher-income groups category. Reservation prescribed under
Rule 13 of the Maharashtra Housing and Area Development
(Disposal of Lands) Rules 1981 has not been complied with
while allotting plots in favour of respondents-housing
societies. The housing scheme sanctioned by the MHADA was
meant only for residential purposes; however, subsequently,
land user has been permitted for commercial purposes
without following due process of law. Many individuals who
were allotted premises possess houses in the same area.
Therefore, no objection certificates for commercial use
granted by respondent No.3 in favour of respondent Nos.5 to
14 deserve to be quashed and set aside as such certificates
are contrary to provisions of the Maharashtra Housing and
Area Development Act, 1976 (hereafter referred to as
"MHADA Act").
19. Per contra, Mr. Patil, learned advocate appearing for
allottee housing societies urged that the allotments made in
favour of housing societies are of the year 2008 to 2009,
however, first petition has been filed in the year 2014 and
pil-43-2014 with connected-Final.doc
second petition is filed in the year 2022 without explaining
delay/laches. Inviting our attention to the dates and events
enumerated in the affidavit-in-reply filed by the housing
societies, he submitted that both petitions deserve to be
dismissed only on the grounds of delay/laches. He submitted
the Resolution No.5998 dated 9 January 2014, Resolution No.
6260 dated 4 June 2007 and Resolution No.6422 dated 7
August 2009 authorized MHADA to permit allottee societies to
utilize F.S.I. up to 15% for commercial use. He submitted that
no objection certificates granted by the MHADA have been
merged with sale deeds. Without a challenge to sale deeds,
the petitions challenging no objection certificates are not
maintainable. He submitted that after the allotment of the plot
in favour of the society, third-party rights are created in
favour of individuals who are not members of the society. In
the absence of adding such persons as respondents in the
petitions, the petitions in their present form are not
maintainable on the ground of non-joinder of necessary
parties. He submitted that Plot Nos.11 to 13 is already a
subject matter of the petition in PIL Petition No.43 of 2014
and, therefore, a fresh petition seeking the same reliefs in
2022 is not maintainable. Moreover, a petition filed in 2022
pil-43-2014 with connected-Final.doc
about Plot Nos.1, 2 and 4 to 8 need not be entertained on the
grounds of delay/laches.
20. Mr. Lad, learned advocate for respondent Nos.2 and 3
submitted that respondent No.2 has allotted lands in favour of
housing society as per existing policy. The MHADA has already
scrutinized the eligibility of members of housing societies, and
there is no illegality in the process of allotment.
21. Mr. Gole, learned advocate for respondent No.11,
submitted that the allotment of plots in favour of housing
societies is as per the Rules under the MHADA Act which was
made after taking into consideration relevant provisions of
law. Entertaining the petition in relation to allotment made in
the year 2008 and 2009, in absence of explanation about
delay/laches, would cause injustice to the individuals in whose
favour residential and commercial units are allotted by the
societies after permission from the MHADA, Municipal
Corporation and other authorities. It is submitted that the
individual allottees have mortgaged their flats in favour of the
banks and have already created third-party rights. He,
therefore, prayed for the dismissal of the petitions.
22. We have heard the learned counsel for the parties and
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considered the rival contentions. At the outset, it is necessary
to address the issue of delay and laches, a ground urged by
the respondents in opposition to both petitions. The 2014
Petition concerns Plot Nos. 11 to 13, while the 2022 Petition
pertains to Plot Nos. 1, 2, 4 to 8, and 11 to 13. In the 2014
Petition, the petitioners have challenged the legality and
validity of the grant of additional FSI, development
permission, and the amalgamation and allotment of plots in
favor of the housing societies. Therefore, in the context of the
issue of delay in filing the petitions, the following facts must
be mentioned:
a) On 6 March 2009, the allotment letter was issued in
favour of respondent No.12 - Society.
b) On 22 October 2009, a lease deed was executed
between respondent No.2 and respondent No.12 for Plot
No.10.
c) On 2 February 2010, a commencement certificate was
granted in favour of respondent No.12 for building
construction.
d) On 30 June 2010, respondent No.4 granted respondent
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No.12 a plinth certificate for the construction of a building.
e) On 25 October 2010, the owners of plots 11, 12, and 13
amalgamated their plots.
f) On 29 October 2010, respondent No.2 issued a
communication allowing excess 0.75 F.S.I. in favour of
respondent No.12.
g) On 14 December 2011, a supplementary lease deed was
issued in favour of respondent No.12 for 0.75 F.S.I.
h) On 21 April 2011, respondent No.3 granted revised
development permission for residential and commercial
construction.
i) On 25 October 2011, respondent No.11 granted a no
objection certificate (NOC) for utilizing 15% of the plot for
commercial use.
j) On 25 April 2012, respondent No.12 executed a
registered development agreement favouring M/s. Sai Rydam
Realters Pvt. Ltd.
k) On 4 January 2013, the developer forwarded a proposal
for revised development permission.
pil-43-2014 with connected-Final.doc
l) On 13 April 2013, respondent No.2 consented to issuing
a part occupation certificate.
m) On 2 August 2013, respondent No.2 issued a no
objection certificate for mortgaging flats regarding respondent
No.12-Society.
n) On 15 February 2014, MHADA issued a letter to
respondent No.12 informing that there was a balance F.S.I. of
3407.5 sq. mtrs. Of these, 2896.44 sq. mtrs. could be used
for residential purposes, and 511.14 sq. mtrs. could be used
for commercial purposes.
o) On 14 March 2014, respondent No.1 permitted individual
owners to obtain loans by mortgaging their units.
23. In light of the aforesaid facts, it is necessary to consider
PIL Petition No.43 of 2014, which is concerning Plot Nos.11 to
13, which are amalgamated. Paragraph No.8 of the PIL
Petition indicates that the petitioners applied for information
under the Right to Information Act, 2005, concerning the
subject matter of the petition. The petitioners themselves
have stated that respondent No.2, by the letter dated 19
January 2011, furnished information indicating that the land
pil-43-2014 with connected-Final.doc
in question was allotted exclusively for residential purposes
and not for non-residential purposes, and land has been
allotted with F.S.I.-I. Thereafter, the petitioners made
representation to the various authorities. Paragraph No.13 of
the PIL Petition indicates that the Executive Engineer of
respondent No.3 visited construction in dispute on 16 March
2011, and he found that slab work up to the fourth floor was
completed and slab work on the fifth floor was in progress.
Therefore, the petitioners in PIL Petition No.43 of 2014 were
aware of the allotment of land and the purpose of allotment at
lease on 19 January 2011. They were also aware of the
progress of the construction in March 2011. However, they
filed PIL Petition No.43 of 2014 on 7 January 2014. The
petitioners have not explained the delay and laches in filing
the present petition. In the absence of any explanation, this
Court is not called upon to consider whether the explanation
furnished by the petitioners is sufficient to condone the delay
and laches in approaching the present PIL Petition.
24. It is well settled that writ jurisdiction under Article 226
of the Constitution of India is discretionary. Therefore, if a
petitioner approaches the High Court under Article 226 of the
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Constitution of India after unexplained delay, this Court can
dismiss the petition without going into the merits of the
matter.
25. In the case of Raja Jagdambika Pratap Narain Singh
vs. Central Board of Direct Taxes & Ors. reported in AIR
1975 SC 1816, the Supreme Court, in paragraph No.13,
observed as under:
"13. Even so, the journey of the appellant is beset with
insurmountable hurdles. Article 226 is not a blanket
power, regardless of temporal and discretionary
restraints. If a party is inexplicably insouciant and
unduly belated due to laches, the court may ordinarily
deny redress. And if the High Court has exercised its
discretion to refuse, this Court declines to disturb such
exercise unless the ground is too untenable. To awaken
this Court's special power gross injustice and grievous
departure from well-established criteria in this
jurisdiction, have to be made out. In the present case,
long years have elapsed not only after the impugned
orders but even after the High Court held the taxed
income agricultural. The reason for the inaction is stated
to be an illusory expectation of suo motu modification of
assessment orders on representation by the party. The
High Court has examined and dismissed the plea and
consequentially refused relief. We do not think that in so
refusing relief on ground of laches the High Court
exercised its discretion arbitrarily or improperly. And the
sorry story must thus close."
26. In the case of Durga Prasad vs. Chief Controller of
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Imports and Exports and Ors. reported in AIR 1970 SC
769, the Supreme Court, in paragraph No.3, observed as
under:
"3. It is well settled that the relief under Article 226 is
discretionary, and one ground for refusing relief under
Article 226 is that the petitioner has filed the petition
after delay for which there is no satisfactory
explanation."
27. Similarly, in the case of Municipal Council,
Ahmednagar & Anr. vs. Shah Hyder Beig and Ors.
reported in AIR 2000 SC 671, the Supreme Court vide
paragraphs 17 and 18 held that in absence of any explanation
as to inordinate delay in filing a writ petition, the High Court
in its discretionary powers under Article 226 of the
Constitution of India, can dismiss the writ petition on that
ground alone without going into the merits.
28. In the case of K. V. Rajalakshmiah Setty & Anr.. Vs.
State of Mysore & Anr., reported in AIR 1967 SC 993, the
Supreme Court (vide paragraph 13), held that the appellants
were guilty of laches because after the impugned order was
passed in 1950, they should have filed writ petition within
reasonable time thereafter. Merely because the Chief Engineer
had espoused their cause and was writing letters from time to
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time to the State Government to do something for them did
not mean that they could sit quiet satisfied about their
accomplishments.
29. In the case of Maharashtra State Road Transport
Corporation vs. Balwant Regular Motor Service,
Amravati & Ors., reported in AIR 1969 SC 329, the Supreme
Court observed as under:
"It is well settled that the writ of certiorari will not be
granted in a case where there is such negligence or
omission on the part of the applicant to assert his right
as taken in conjunction with the lapse of time and other
circumstances, causes prejudice to the adverse party.
The principle is to a great extent, similar to though not
identical with, the exercise of discretion in the Court of
Chancery. The principle has been clearly stated by Sir
Barnes Peacock in Lindsay Petroleum Co. v. Prosper
Armstrong Hurd, Abram Farewall, and John Kemp ,
(1874) 5 PC 221 at p. 239 as follows:
"Now the doctrine of laches in Courts of Equity is
not an arbitrary or a technical doctrine. Where it
would be practically unjust to give a remedy, either
because the party has, by his conduct, done that
which might fairly be regarded as equivalent to a
waiver of it, or where by his conduct and neglect
he has, though perhaps not waiving that remedy,
yet put the other party in a situation in which it
would not be reasonable to place him if the remedy
were afterwards to be asserted in either of these
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cases, lapses of time and delay are most material.
But in every case, if an argument against relief,
which otherwise would be just, is founded upon
mere delay, that delay of course not amounting to
a bar by any statute of limitations, the validity of
that defence must be tried upon principles
substantially equitable. Two circumstances, always
important in such cases, are, the length of the
delay and the nature of the acts done during the
interval, which might affect either party and cause
a balance of justice or injustice in taking the one
course or the other, so far as relates to the
remedy."
30. In the present case, the decision of the Privy Council in
Lindsay Petroleum Company (supra), squarely applies.
31. As stated earlier, the petitioners have averred in
paragraph No.8 of the PIL Petition that they got information
regarding the allotment of land for residential purposes and
permissible F.S.I on 19 January 2011. In furtherance of
complaint filed by the petitioners, the Deputy Engineer of
respondent No.3 visited the construction on Plot No.13 on 16
March 2011 where he found that slab work up to fourth floor
was completed and slab work of fifth floor was in progress.
However, the PIL Petition was filed only on 7 January 2014. If
the petitioners were aggrieved, they should have filed a
petition soon after getting knowledge about the purpose of
allotment. Respondents Nos.12 to 14 had obviously spent a
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lot of money on the construction, and it would be inequitable
if a direction is now given for cancellation of allotment and
building permission at such a belated stage.
32. In the facts of this case, we are of the opinion that the
petitioners have approached this Court by way of PIL Petition
No.43 of 2014 after an unexplained inordinate delay. It is
pertinent to note that no explanation has been given by the
petitioners for delay/laches. The petitioners, by their conduct
of approaching this Court after unexplained delay, have put
respondents Nos.5 to 7 in a situation where it would be
unreasonable, inequitable and unjust to put them back to
their original position before the construction of the residential
and commercial buildings. Even assuming that the petitioners
had a good case on merits, interfering at this late stage would
now be inequitable and unjust. For this delay, the petitioners
themselves are entirely to be blamed.
33. Whether the relevant standards and requirements have
been met by MHADA and the Municipal Corporation is
ordinarily for the concerned authorities to look into and not
for this Court. This Court has to maintain judicial restraint and
need not ordinarily differ from the opinion of administrators
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unless there is a clear violation of law or something is
shockingly arbitrary. It may be noted that the construction of
the project started after the petitioners got knowledge about
the purpose of allotment of the construction, and its progress
was within the knowledge of the petitioners. Hence, in our
opinion, PIL Petition No.43 of 2014 should be dismissed on
the grounds of laches without even going into the merits.
34. In so far as PIL Petition No.104 of 2022 is concerned,
the PIL Petition pertains to Plot Nos.1, 2, 4 to 8 and 11 to 13.
As indicated earlier, PIL Petition No.43 of 2014 is in relation to
Plot Nos.11 to 13. In PIL Petition No.104 of 2022, the
petitioner is challenging the no-objection certificate granted
by the authorities for the commercial use of the plots in
question. It is evident that the impugned no-objection
certificates are dated 25 October 2011, 26 September 2012,
11 August 2014, 31 March 2015, 15 April 2015 and 27
February 2019.
35. Moreover, the petitioner has challenged revised
development permission without challenging original
development permissions issued from 2011 to 2013. The
revised development permissions are dated 16 January 2018,
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21 July 2018, 15 November 2018, 16 September 2019, 9 June
2021, and 29 October 2021. The letters of allotment in favour
of the societies range from 2007 to 2011 and 2014 and 2015.
36. PIL Petition No. 104 of 2022 was filed on 16 June 2012.
The explanation furnished in the PIL Petition, attempting to
explain the delay, reads as under:
"32. The petitioner submits that there is no delay in
filing this petition as the petitioner came to know about
this scam in the year 2021 and subsequently, the
petitioner has filed various application under RTI for the
information of the said scheme and the cause of action
for the petitioner has started from the date of receipt of
the information sought under the RTI Applications and
thereafter making the requisite representation and
complaints."
37. As previously noted, construction on the plots proceeded
openly. Other petitioners, claiming to be activists, filed an
application under the provisions of the Right to Information
Act, 2005, in 2011. Therefore, as indicated earlier, we believe
the petitioner in the present PIL Petition should have filed it
immediately upon the commencement of construction on the
plots in question. The reason given in paragraph No. 32 is
insufficient to explain the delay of more than ten years after
the start and completion of construction.
38. Furthermore, third-party rights have already been
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established in favor of allottees by the housing societies, with
some of them having mortgaged their flats to financial
institutions/banks. Neither the individual allottees nor the
banks have been made parties to the petition.
39. Therefore, we are satisfied that it would be absolutely
inequitable and unjust to grant relief in favour of the
petitioner in PIL Petition No.104 of 2022.
40. The petitions are, therefore, dismissed. The cost of
Rs.1,00,000/- deposited in this Court in pursuance of order
dated 20 June 2022 shall be transmitted to Kirtikar Law
Library, Mumbai.
41. Interim application(s), if any, shall stand disposed of.
(AMIT BORKAR, J.) (CHIEF JUSTICE)
42. After pronouncement of the judgment, learned counsel
for the petitioners seek extension of interim relief restraining
respondents from creating third party rights over subject
matter. Since we have dismissed the PIL Petitions on the point
of unexplained inordinate delay in approaching the Court, no
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case for continuation of interim relief is made out. The prayer
is, therefore, rejected.
(AMIT BORKAR, J.) (CHIEF JUSTICE)
