Bombay High Court
Dolphin Co Op Hsg. Soc Ltd. Thr Its ... vs State Of Maharashtra Thr Its Secretary ... on 4 February, 2025
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
Digitally
signed by
2025:BHC-AS:5219-DB
KAWRE
KIRAN
KAWRE
KIRAN
KALYAN
901-WP-1042-2023.DOC
KALYAN Date:
2025.02.04
13:03:17
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1042 OF 2023
Dolphin Co. Op. Hsg. Soc. Ltd.
Thr. Its Chairman & Anr. ...Petitioners
Versus
State of Maharashtra Thr. Its Secretary & Ors. ...Respondents
_______
Mr. Avinash Fatangare a/w Archna Shelar & Vishakha Pandit for Petitioners.
Mr. A. I. Patel Add. G. P. a/w P. J. Gavhane AGP for State.
Mr. B. B. Sharma for Respondent No.2.
Mr. P. B. Rajput, Divisional Officer (Kharghar & Kamothe) CIDCO Present.
_______
CORAM: G. S. KULKARNI &
ADVAIT M. SETHNA, JJ.
DATE: 04 FEBRUARY 2025
Oral Judgment (Per : G. S. Kulkarni, J.)
1. Rule. Rule made returnable forthwith. By consent of the parties, heard
finally.
2. This petition under Article 226 of the Constitution of India, in our
opinion, is a gross case, of not only a glaringly unreasonable and arbitrary
approach on the part of respondent No.2, City and Development
Corporation of Maharashtra Limited ( for short "CIDCO") but also quite
high-handed, when it withheld for almost six years an "Occupancy
Certificate" to the building constructed for the benefit of the members of
petitioner No. 1/ the Dolphin Co-operative Housing Society Limited. The
construction of such building as per the certificate of the Architect was
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completed on 11 July 2018 and till date, the Occupancy Certificate has been
withheld, keeping away, the eighteen members of the society, who are
persons of limited means, from their abode / residential units from being
occupied. The ordeal of the petitioners as set out in the petition and the
mechanical approach of the officers of the CIDCO would in fact shock the
conscience of the Court.
3. Seventeen persons (member of the petitioner No.1 / Society) on 10
August 2001 applied to the CIDCO for allotment of a plot on a long term
lease as per the policy of the CIDCO for construction of a residential
building. Their application was successful. An allotment letter dated 14 May
2015 was issued in favour of the Chief Promoter of the petitioner No.1 (then
a proposed society), allotting plot No. 59/C, situated at Sector 21, Kharghar,
New Mumbai, admeasuring 499.87 sq. meter. An Agreement to Lease was to
be entered, as per the terms and conditions after the amount of lease
premium was paid to the CIDCO and after a co-operative housing society of
these persons registered under the provisions of Maharashtra Co-operative
Societies Act, 1960, (for short "the MCS Act"). Also a list of seventeen
members duly approved by the CIDCO was annexed to the allotment letter
as "Annexure - A". The relevant contents of the allotment letter are required
to be noted which reads thus:
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"4. A list of members duly approved by the Corporation
is annexed hereto as Annexure -A. These promoters will be the
applicants for getting the Society registered.
5. On getting the society registered under the provisions of
Maharashtra Co-operative Societies Act, 960 with members
whose names are mentioned in Annexure -A, the Society will
execute an Agreement to lease with Corporation within a period
of 15 days from the date of such registration."
4. Accordingly, petitioner No.1 / society was registered on 2 June 2015, and
to that effect a Certificate of Registration was issued by the Assistant
Registrar, Co-operative Housing Societies. As per the terms and conditions of
the allotment letter, an Agreement to Lease (not a final lease deed) was
entered between the CIDCO and the petitioner on 9 June 2015. Under the
Agreement to Lease, the petitioner was entitled to use "One FSI", equivalent
to permissible construction of 499.506 sq. mtr.
5. It appears to be not in dispute that the FSI which was available was
commensurate to construct tenements, not only for the existing seventeen
members, but for one additional tenement, that is total eighteen
tenements/units each admeasuring 355 sq. ft. carpet. To undertake
construction, petitioner No.1 appointed petitioner No.2 / Developer. The
construction plans were submitted to the CIDCO, it being the Planning
Authority. On 15 January 2016, the Senior Planner (Building Permission) of
the CIDCO issued a Commencement Certificate for construction of
"eighteen residential units" of a building consisting of stilt plus six floors with
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FSI of 499.506 sq. mtr. Accordingly, the building which was approved to be
constructed was to house eighteen residential units as per the said
Commencement Certificate issued by the CIDCO.
6. The case of the petitioner is that as eighteen residential units were
permitted to be constructed, considering the financial constraints on the
seventeen members in undertaking the construction, it was thought
appropriate and proposed that one additional member to the existing
seventeen members be admitted. The petitioner / Society accordingly called
for a General Body Meeting on 1 December 2017. In such meeting, by a
unanimous decision, taken by all the members, it was resolved to admit an
additional member Smt. Smita Laxman Suravase. Such resolution was also
commensurate to the proposed construction, which was to accommodate
eighteen residential units, as also intended for proportionate / distribution of
the expenditure / financial liability, in the proposed construction.
7. In pursuance of such General Body Resolution of admitting an additional
member on 2 December 2017, the petitioner / society submitted a proposal
to the Estate officer of the CIDCO for approval of the enrollment of an
additional member into the society. However, such representation was not
replied nor any action thereon was taken on behalf of the CIDCO.
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8. In the meantime, qua the proposed construction, a "Commencement
Certificate" was issued by the CIDCO on 15 January 2016. The construction
of the building was accordingly taken up which was completed in July 2018,
as per the sanctioned plans. The petitioners' architect certified completion of
the construction of the building by issuing a certificate dated 11 July 2018.
As a part of such completion, a license for working of the lift was issued to
the petitioner by the Chief Electrical Inspector of Government of
Maharashtra under a certificate dated 30 May 2018, also the Executive
Engineer of the CIDCO issued a 'Drainage Connection Certificate' on 14
June 2018. On 25 June 2018, CIDCO issued a Health NOC for grant of
Occupation Certificate to the building.
9. It is on the aforesaid premise, on 24 August 2018, the petitioner / society
addressed a letter to the Chairman and Managing Director of CIDCO
requesting that the petitioner had already made an application on 1
December 2017 along with all the documents for enrollment of an additional
member Ms. Smita Laxman Survase, on which an approval be granted by the
Managing Director for enrollment of such 18 th member, so as to occupy the
additional unit. Such representation / application of the petitioner was not
replied by the CIDCO. Again, a representation was made by the petitioners
to the CIDCO on 24 September 2018 which was also not replied.
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10. In such circumstances, as the CIDCO was neither responding nor
taking any action on the petitioner's application, the petitioners were
constrained to move the State Government by making a representation to the
Hon'ble Minister for Housing, pointing out all the details of CIDCO's
inaction, requesting that the CIDCO be directed to approve the inclusion of
an additional member, so that the Occupancy Certificate can be granted.
The Hon'ble Minister, in response to the petitioners' representation,
addressed a letter dated 23 October 2018 to the Chairman and Managing
Director of the CIDCO in which he stated that the petitioner was permitted
to construct eighteen units, and that by a unanimous decision of the
petitioner-society, one additional member was admitted. It was stated that
considering the financial condition of the members of the petitioner-society
and considering the fact that they had availed loans, it was imperative that at
the earliest they should occupy their respective tenements, which were ready
for occupation. The Hon'ble Minister hence requested the Chairman and
Managing Director to consider the petitioners' case for enrolling an
additional member, and not to withhold the Occupation Certificate.
Although the Managing Director himself did not respond to the letter of the
Hon'ble Minister, the Estate Officer of CIDCO addressed a letter dated 23
July 2019 to the Private Secretary of the Hon'ble Minister, the contents of
which are quite surprising as also self-contradictory, which reads thus:
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"(Translation of a photocopy of a LETTER, typewritten in Marathi on a letterhead,
printed in Marathi )
EXHIBIT - U
CITY AND INDUSTRIAL DEVELOPMENT CORPORATION
(MAHARASHTRA) LIMITED.
(C.R.S. Pu. 99999 MH 1970 MGC 014504)
Registered Office : Head Office:
Second Floor, Nariman Point, CIDCO Bhavan,
Mumbai - 400 021. C. B. D., Belapur
Tele. No. 00-91-22-66500900 Navi Mumbai - 400 614.
Fax : 00-91-22-22022509 Tele. No. 00-91-22-6791 8166.
Reference No. : No. CIDCO/Town Services-III/2022/942
Date : 09.02.2022
To,
The Chairman/Secretary,
Dolphin Co-operative Housing Society,
Plot No. 59/C, Sector - 21,
Kharghar, Navi Mumbai.
Subject :- Regarding granting permission to admit one additional member in
Dolphin Co-operative Housing Society.
Reference :- Letter from Dolphin Co-operative Housing Society received by
this Office on the date 11.01.2022.
Sir,
The Dolphin Co-operative Housing Society, under the above-referred letter,
has requested the CIDCO to grant permission to admit one additional
member. However, in this regard, it is informed that at present, there is no
provision in the New Bombay Disposal of Lands Act to grant permission to
admit additional member and that therefore, the issue to take steps to
formulate a policy in respect thereof is under consideration of the CIDCO
Corporation and hence, the request made by your society will be considered
after the policy in respect thereof is formulated.
Yours faithfully,
Manager (Town Services - III)
(emphasis supplied)
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11. Thus, by the aforesaid letter of the Manager (Town Services) of the
CIDCO addressed to the Hon'ble Minister the construction undertaken by
the petitioners being of eighteen units was not disputed. It was also not the
case, that the construction was in any manner illegal, however, what was
stated was that under the rules, there was no provision for admission of an
additional member and that till the policy in that regard is finalized and
approved, the petitioners request to permit enrollment of the additional
member could not be considered and for such reason an occupancy certificate
cannot be granted.
12. The petitioners thereafter again made a representation dated 4 January
2021 to the CIDCO that the members of the petitioner for want of an
occupancy certificate were deprived of their legitimate entitlement to occupy
their tenements. It was pointed out that they were staying in rented
premises, as also were paying monthly installments, on the loan availed by
them in the construction of the units. It was also stated that due to Covid-
19, many of the members had lost their employment and were practically on
road, resultantly they were also unable to pay the rent, as also take the burden
of the loan EMI's. In these circumstances, the petitioners requested that the
petitioners' request be sympathetically considered and an Occupation
Certificate be issued to the petitioner / society for the construction
undertaken and completed in July 2018. However, despite repeated efforts to
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persuade the officers of the CIDCO for almost three years there was no
response from the CIDCO.
13. The petitioner, hence made a further representations to the CIDCO
dated 26 June 2021 and 27 October 2021. Some of the members in the
meantime also approached the Maharashtra Real Estate Regulatory Authority
("RERA") seeking directions against the developer invoking the provisions of
the Real Estate Regulation and Development Act, 2016 on which the learned
member of the Maharashtra RERA passed orders against petitioner No.2
dated 20 January 2020.
14. It is on the aforesaid backdrop on 5 January 2021, the Associate
Planner of CIDCO addressed to the petitioners an "Occupancy Refusal
Letter" on the ground that "final number of members" for society allotted
plots from the Estate Section was not furnished by the petitioner. The
contents of the said letter are required to be noted which reads thus:
"No. : BP - 13461/0010 Date : 5/1/2021
To
M/s. Dolphine Co.op. Hsg, Society Ltd.,
through its Partner. Shri Balasaheb Dashrath Dhobale.
101, Shalimar Building, Sector No.11, Opp.
Mahatma Gandhi Complex,
Vashi, Nave Mumbai.
400703
Sub : Grant of Occupancy Certificate for proposed Residential
[ Residential Bldg/Apartment] building on Plot No. 59-C, Sector 21, at
Kharghar, Navi Mumbai.
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Ref. : 1) Development Permission granted by this office vide letter No.
CIDCO/BP-13641/TPO/(NM&K)/2015/1523, 15 January, 2016.
2) Your Architect's application for Occupancy received in this office on
21 December, 2020.
Sir,
With reference to above, this is to inform you that the Occupancy
Certificate as sought by you is hereby refused under Section-45 (1) (iii)
of Maharashtra Regional and Town Planning Act - 1966 for the
following reasons:
Documents Objections :
1. Final number of members from Estate Section for Society allotted
plots, if applicable
Remark: Documents Refusal.
Site Visit Objections :
Site Visit Date : 04 January, 2021
1. Any Other Reason
: Estate NOC for 18
units is not submitted
Thanking you,
Yours faithfully,
Bhushan R. Chaudhari
ASSOCIATE PLANNER (BP)"
(emphasis supplied)
15. As the members of the petitioner / society were immensely suffering,
the petitioner addressed another representation dated 2 September 2021
requesting the Assistant Town Planner, CIDCO to grant an Occupation
Certificate, at least considering the indisputed seventeen members of the
petitioner / society. Such application was also not considered by the Assistant
Town Planner.
16. A further representation was made by the petitioners on 5 January
2021 to the Estate Officer, again pointing out that the construction of the
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petitioner's building was undertaken as per the sanctioned plans, for eighteen
units and as one member had resigned, another member Ms. Kavita
Rammohan Jogi be approved as a member and that the Occupation
Certificate also be granted in respect of the eighteen units. Such
representation of the petitioner for grant of Occupancy Certificate was
rejected by the Manager (City Service-3) by its communication dated 9
February 2022 which reads as follows:
"(Translation of a photocopy of a LETTER, typewritten on a Letterhead in
Marathi).
(Exhibit "O")
CITY AND INDUSTRIAL DEVELOPMENT CORPORATION
(MAHARASHTRA) LIMITED
(C.R.S. Pu. 99999 MH 1970 MGC 014504)
Registered Office : Head Office:
Second Floor, Nariman Point, CIDCO Bhavan,
Mumbai - 400 021. C. B. D., Belapur
Tele. No. 00-91-22-66500900 Navi Mumbai - 400 614.
Fax : 00-91-22-22022509 Tele. No. 00-91-22-6791
8166.
Ref. No. CIDCO Town Services-III/2011/7113. Date: 23.07.2019
To,
The Assistant,
(Attached to)
The Hon'ble Minister of State (Housing),
Government of Maharashtra,
Mantralaya, Mumbai - 400 032.
Subject : Regarding granting permission to add one additional
Flat in the Dolphin Co-operative Housing Society.
Reference : Your Letter bearing No. Minister / Housing /
General / 336 / 2018, dated 23.10.2018.
Sir,
The CIDCO Corporation had allotted a plot of land bearing
No. 59/C, admeasuring 499.87 Sq. Mtrs. in Sector No.21 at Kharghar
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for 10 members of a Society viz. Messrs Dolphin Co-operative
Housing Society and had granted permission to construct 18 units on
the said plot. Accordingly, the society has constructed 18 units on the
said plot of land. Further, the Society had requested to grant
permission to construct one additional unit and to admit one
additional member. However, at present, there is no provision in the
New Bombay Disposal of Lands Act to grant permission for admitting
additional member and therefore, the issue to take steps to formulate
a policy in respect thereof is under consideration of the CIDCO
Corporation and hence, the request made by the said society will be
considered after the policy in respect thereof is formulated.
May this be known.
Yours faithfully,
Manager (Town Services - III)
Estate Officer (TS - III)
CIDCO LTD."
(emphasis supplied)
17. It is in the aforesaid circumstances, having miserably failed before the
respondents in their effort to obtain an Occupancy Certificate, the petitioners
being aggrieved by the actions of the CIDCO refusing to grant Occupation
Certificate, as also refusing to approve the addition of a member, has filed the
present petition praying for the following substantive reliefs which reads
thus:
"a. That this Hon'ble Court be pleased to issue a writ order,
direction or a writ in the nature of Mandamus or any other
appropriate writ directing the Respondent No.2 to grant
permission to the Petitioner No.1 to enroll one additional member.
b. That this Hon'ble Court be pleased to issue a writ order,
direction or a writ in the nature of Mandamus or any other
appropriate writ directing the Respondent No.2 to issue
Occupancy Certificate to the Petitioner No.1."
18. Reply affidavit on behalf of CIDCO is filed of Shri. Prashant Bhaurao
Bhangare, Additional Estate Officer, Kharghar CIDCO who has justified the
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impugned actions of the CIDCO in not permitting the addition of one
member, as also refusing to grant Occupation Certificate primarily on the
ground that the admission of the additional member was not approved by the
"Estate Officer". There are several contentions raised in the reply affidavit,
inter alia that the petitioner was required, as per the terms and conditions of
the allotment letter, the Agreement to Lease and that the Navi Mumbai
Dispose of Land Regulations, 2008 to construct only 17 flats for the 17 said
approved members, hence, CIDCO could not have granted an approval to
the additional member as admitted by the petitioner - society. It is contended
that also on 17 December 2018, a show cause notice was issued to the
petitioners as to why action should not be taken against the petitioners for
non-submission of Estate NOC permitting the addition of one member and
for constructing one additional unit, in the absence of Estate Officer's
permission. It is, however, significant that the reply affidavit in no manner
whatsoever has questioned the sanction of the plans which were for the
construction of eighteen units and that the construction of the building was
undertaken strictly in accordance with the plans.
19. Mr. Sharma, learned counsel for the CIDCO has made extensive
submissions which are not different from the stand taken by the CIDCO in
the reply affidavit.
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Reasons and Conclusions
20. We have heard learned counsel for the parties. With their assistance,
we have also perused the record.
21. At the outset, we may observe that although the petitioner had applied
for allotment of a Co-operative Society plot for construction of residential
tenements with "seventeen members" whose names were approved in the
allotment letter dated 14 May 2015 issued to the petitioner-Society, certainly
such allotment letter qua the number of members and their names cannot be
sacrosanct and/or incapable of any alteration / modification by having one
additional member, in the facts and circumstances of the present case. This
can also be for many reasons. Illustratively, in the event, one of the members
resigning and not intending to continue as member; or there is a likelihood
of more FSI being available, whereby additional units could be constructed
for more than seventeen members, which is what happened in the present
case. There can be other reasons also requiring additional members to be
admitted by a cooperative housing society.
22. This position as stated by us, is also clearly recognized in the CIDCO
Lease of Land to Co-operative Housing Society (Amendment Regulations)
2008, wherein, Regulation 27 confers a power on the Managing Director of
the CIDCO, to give permissions to enroll additional members. Regulation 27
and 28 are the relevant regulations which reads thus :
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"27. On request of the Society, the Managing Director may give
permission to enroll additional members for the consumption of
the additional FSI, which the Society may get under Regulation 21
and / or in the event of additional area which may become available
to the Society by operation of various provisions of the Navi
Mumbai Disposal of Lands (Amendment) Regulations, 2008 or the
New Towns Disposal of Lands Regulations 1993, as the case may
be.
Explanation.-(i) The members, to be enrolled as additional
members, shall fulfill eligibility conditions specified in Regulation
6.
(ii) The permission to enroll additional members shall be on
payment of same charges, as were applicable to original members.
28. The Society shall construct apartments on the plot agreed
to be leased by the Corporation and the number of apartments to
be constructed shall not be in excess of the number of its members
approved by the Corporation."
23. As Regulation 27 refers to Regulation 21, it would be also relevant to
note Regulation 21 which reads thus:
"21. The Society shall not use or permit its members to use the
plot or a building constructed thereon, wholly or partly, for the
purpose other than the residence of its members.
Provided that, if additional FSI is permissible to the plot as per the
prevailing Development Control Regulations, then on application
of the Society, the same shall be granted to it, subject to the
condition that maximum 50% of the additional FSI will be used
for the Commercial purpose."
24. It is thus clear that there was no legal embargo and/or it was
permissible for the petitioner / Society to make a request to the CIDCO/
Managing Director to enroll an additional member, for the consumption of
the additional FSI, which may become available to the Society under
Regulation 21 and / or in the event of additional area otherwise being
available to the society, as provided for in Regulation 26. In such event, there
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was an obligation on the society to construct apartments on the plot not in
excess of number of members as may be approved by the Corporation.
25. In the present case, the FSI to be consumed was 'one', i.e. 499.506 sq.
meters, of construction was permissible, which was to accommodate
construction of 18 units instead of 17 units. Considering the economic
condition of the members, it was beneficial for the members to reduce the
financial burden on the members, by having an additional member, as
construction of 18 units as per the sanctioned FSI, was permissible instead of
construction of 17 units. Accordingly, plans were put up with the CIDCO
for construction of a building to house 18 tenements. A Commencement
Certificate was accordingly granted by the CIDCO for construction of
eighteen residential units being Commencement Certificate dated 15 January
2016. It is only after the Commencement Certificate was issued by the
CIDCO, a General Body Meeting was called on 1 December 2017 wherein
unanimously a decision was taken to admit additional member. Such
admission of additional member was immediately informed to the CIDCO
the very next day i.e. 2 December 2017, for approval of the Estate Officer.
The Estate Officer however did not take a decision on such application and it
is due to his inaction, in our opinion, all such issues causing harm and injury
to the petitioner have taken place. The Estate officer appears to be the major
source of all the problems and harassment faced by the petitioner.
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26. It is not in dispute that the construction of the building was completed
strictly as per the plans, and it is not the case of the CIDCO that the
construction was in excess of eighteen units as lawfully sanctioned. Further,
all other necessary permissions such as certificate of the working of lift,
drainage and health certificate etc. have been already issued by the CIDCO
in favour of the petitioners, so that the Occupation Certificate can
accordingly be granted. It is at such juncture, the petitioner has been told by
the impugned communications as noted by us, that for the reason the Estate
Officer's NOC for eighteen units was not submitted by the petitioners, grant
of Occupancy Certificate to the petitioner's building is being rejected. Such
communication of the CIDCO is dated 5 January 2021 which is preceded by
a communication rejecting the occupancy certificate for a different reason
namely, that there is no provision to grant approval to an additional member.
27. Thus, on one hand, it was being informed by the CIDCO to the
petitioner as also to the Hon'ble Minister that there was no provision to grant
approval to enroll an additional member, whereas in the impugned
communication, it was stated that as the Estate NOC for eighteen units was
not submitted by the petitioner, hence, grant of an occupancy certificate was
being rejected. Both such reasons as furnished by the CIDCO were without
any basis.
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28. On such untenable reasons, the petitioners were put in a miserable
position by the officers of the CIDCO. On one hand, lawful construction of
18 tenements as per the plans sanctioned by CIDCO was undertaken and on
the other hand, the petitioner-Society merely accepting an additional
member, the entire occupancy of the building is being held up. In our
opinion, this is a classic case reaching pinnacle of an illegality and
arbitrariness on the part of concerned officers of CIDCO, who had little
sensitivity to human needs and concerns.
29. As noted hereinabove, clearly the Managing Director under
Regulation 27 of the 2008 Rules (for short "2008 Rules") had the authority
and power to grant approval/permission to enroll additional member(s). Such
application of the petitioner was already made to the Estate Officer as far
back as on 2 December 2017, who also did not consider the application and
kept the same pending. Later on, on patently arbitrary and unreasonable
approach and contrary to the record, on the ground that such power to admit
additional member was not available, a communication was addressed on
behalf of the CIDCO to the Secretary of the Hon'ble Minister that there is
no provision to permit addition of a member by the Society.
30. In our opinion, the rejection of the grant of occupancy certificate by
the impugned communication dated 5 January 2021, on the ground that the
Estate NOC for eighteen units was not submitted by the petitioner, is wholly
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illegal, as the NOC was not being granted purely for the reason of an
arbitrary and/or deliberate inaction on the part of the Estate Officer. No
fault whatsoever could be attributed to the petitioner.
31. In our opinion, such arbitrary approach on the part of the Officers of
CIDCO and that too, depriving the members of the petitioner - society, who
belongs to the economically weaker class and who are already in deep
financial stress are being kept away from occupying their tenements, which
were ready for occupation in the year 2018. It is now almost six years that
the tenements are lying vacant which the petitioners are not permitted to
occupy on account of such high-handed and unreasonable approach on the
part of the Officials of the CIDCO.
32. We thus cannot be oblivious to the fact that the members of the
society are persons of legitimate means, who cannot be deprived of the
benefit of an abode which is a fundamental right guaranteed under Article 21
of the Constitution. Further, the petitioners right guaranteed under Article
300A read with Article 14 of the Constitution also stand breached, and for
no rhyme and reason, the petitioners are made to litigate.
33. This apart, the present proceedings were being contested, and in our
opinion, on an untenable stand being taken by the deponent of the affidavit.
We say so quite consciously, in as much as, it is beyond our imagination that
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any reasonable body of persons can withhold an Occupation Certificate,
which is essentially a building document, when construction in the present
case is undertaken as per the sanctioned plans and in accordance with law. As
noted by us, it is not the CIDCO's case that the petitioners have violated any
building norms and/or in undertaking the construction in order to
accommodate eighteen members, construction contrary to, or in excess of the
sanctioned plan was undertaken by the petitioners. If this be so, there was no
reason whatsoever that merely on the ground that the addition of one
additional member has not been approved by the Estate Officer, 'Occupancy
Certificate' itself could be withheld. The consequence of such mindless
action on the part of the CIDCO officials is too drastic for the members of
the petitioner - society, which in our opinion crosses all norms of
reasonableness, fairness and the legitimate expectation of the petitioners from
a statutory body.
34. We also fail to understand as to how and in what manner and under
what provisions of the Maharashtra Regional Town Planning Act read with
the Maharashtra Co-operative Societies Act, 1960, the CIDCO could exercise
any control on the enrollment of members of a cooperative Society, even
assuming that the allotment was granted for the benefit of seventeen
members. We are not given any convincing reason in this regard, when
matters in relation to the formation of cooperative society, admission of
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members, deletion of members, are issues falling within the provisions of the
Maharashtra Co-operative Societies Act, as to how addition of one member
in a co-operative society and things in relation thereto can be any subject
which could be controlled by the CIDCO, and more particularly when the
context is completely, within the four corners of the conditions of allotment
and the powers in that regard. The approval of the list of seventeen members
in the allotment letter as noted by us can by no stretch of imagination be
final, so as to prohibit the petitioner from admitting additional member, as
this would be directly contrary to what has been provided for in Regulation
27 of the 2008 Regulations, which confers specific power on the Managing
Director to approve addition of the members in a cooperative society. Thus,
in the facts of the case, only one additional member being legitimately
admitted by the petitioner-society, was in no manner illegal or not
permissible in law.
35. In our opinion, in any event, the intention for the CIDCO to prescribe
fixed number of members in making allotment of a plot to a co-operative
society, was aimed to prevent a co-operative society from profiteering by
undertaking any additional construction, and in some manner deal with such
construction, over and above the requirements of its members. The intention
would be to maintain the sanctity of CIDCO's policy to allot land to a co-
operative society. However, in the present case, the Estate Officer or any
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other officer of the CIDCO, remotestly could not have had any
apprehension, that the petitioner-society was intending any undue gain from
the allotment of the plot in question. The record was replete of the bonafides
of the petitioner, that only one additional member was being admitted and
for which construction permission was already granted by the CIDCO for
construction of 18 tenements.
36. However, the manner in which the Estate Officer as also the other
officers have dealt with the petitioners' case, is what has shocked our
conscience. In this context, we may observe that merely for the reason that a
power and authority of allotment of land is vested with the CIDCO and its
officers, it would not mean that they have a carte blanche to deviate from
their legal obligation, duty and responsibility so to breach the legitimate
expectation and above all the constitutional rights guaranteed to the citizens,
and more particularly, of the citizens who belong to economically weaker
sections of the society as in the present proceedings. The approach of the
CIDCO officials ought to have mitigated the hardship being caused to the
petitioners and certainly not to aggravate the same. The petitioners were
required to face an immense ordeal, suffering and pain due to such drastic
and unreasonable actions of such Officers of the CIDCO, in not granting
Occupation Certificate.
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37. The contentions as urged on behalf of the CIDCO by Mr. Sharma in
justifying the actions of the CIDCO officials, in the aforesaid circumstances
cannot be accepted and deserve to be rejected. The submission of Mr.
Sharma being that the issues as raised by the petitioners are contractual,
hence the conditions in the allotment letter as also Agreement to Lease were
required to be adhered by the petitioners, and unless the addition of one
member was to be approved by the Estate Officer, the petitioner could not
have proceeded with the construction. Such contention as urged on behalf of
CIDCO militates against the position taken by the CIDCO, when it granted
Commencement Certificate to the petitioners to construct eighteen units and
accordingly the petitioners undertook the construction. Such stand also
nullifies the powers of the Managing Director as conferred under Regulation
27 read with Regulation 21. Hence, Mr. Sharma's submission that the
petitioners contention would amount to an amendment of the terms of
Agreement to Lease is also wholly untenable.
38. We have perused the terms and conditions of the Agreement to Lease
which is only a license for the petitioner to enter on the plot of land to
undertake construction. The petitioner was accordingly permitted to
undertake construction which was completed, which the CIDCO does not
question, much less on its legality. It is also not the case that after the
completion of the entire construction, the petitioner had approached CIDCO
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with an application that an additional member be admitted, as clear from the
dates which we have noted hereinabove. It is the Estate Officer who did not
bother to do anything on the petitioner's application dated 2 December 2017
to include an additional member, by which the petitioners sought a specific
approval to permit enrollment of an additional member. Insofar as the legal
position is concerned, Mr. Sharma's contentions relying on clause 5.5 of the
Agreement to Lease also needs to be rejected. Clause 5.5 clearly recognizes
the authority of the Managing Director to admit a new member and such
authority, in such reasonable and bonafide case of the petitioners was refused
to be exercised by the Managing Director, as the facts clearly demonstrate.
This possibly because the Managing Director believed the Estate Officer
instead of the Managing Director himself examining the petitioners case.
39. We are in agreement with the learned counsel for the petitioner when
he places reliance on the decision of the Division Bench of this Court in the
case of Prasad Mhatre Vs. Municipal Corporation of Grater Mumbai & Ors. 1
in which, in a situation akin to the facts of the case, the Court observed that
when there was no violation of the FSI and when permissible FSI was
granted as per NOC, which in the said case was granted by MHADA, and
when the construction which was carried out was in accordance with
sanctioned plans, the Occupation Certificate, could not have been withheld,
1 2018 SCC OnLine Bom 578
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on the ground that building completion certificate along with NOC of the
MHADA for non-residential user was not submitted. The Court held that
such stand on behalf of the Municipal Corporation not to grant Occupation
Certificate, was illegal. The Court observed that the Occupation/Completion
Certificate was required to be granted by the Municipal Corporation to the
petitioner-society therein, and that it could not have been withheld on the
ground of failure of the petitioner to produce NOC of MHADA.
40. In so far as the present case is concerned, there was neither a reason
nor any logic for the CIDCO and its officials to withhold the Occupancy
Certificate, except for extraneous reasons and / or for reasons, which were far
from bonafide more particularly when the petitioner-society admitting an
additional member, did not have any nexus to the legality of the construction
undertaken by the petitioners, and to deprive the members of the society of
the legitimate benefit of their tenements, for more than six years, crossing all
boundaries of legitimacy and reasonableness.
41. In the light of the aforesaid discussion, eminently the petition would
be required to be allowed. It is accordingly allowed in terms of prayer clause
(a) & (b) of the petition.
42. Before parting, as a Constitutional Court we cannot be oblivious to the
high-handed and arbitrary approach on the part of the Estate Officer, who
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primarily appears to be responsible for the present state of affairs and
suffering of the petitioners. Unfortunately, even the Managing Director was
completely oblivious to the actions being taken by the subordinate Officers.
We also do not find that the affidavit filed on behalf of the CIDCO was
approved by the Managing Director, and if it is so approved, we have very
serious doubt on the application of mind to the facts of the case. However, as
noted above, the root cause, however, is the illegality of the Estate Officer.
We will be thus failing in our duty, if we do not impose exemplary cost of Rs.
5,00,000/- to be paid by the CIDCO or collectively by the concerned
Officers as the Managing Director may decide in the facts and circumstances
of the case, to paid to the petitioner / Society within a period of two weeks
from the date of the order being made available. This in our opinion, would
hardly be any compensation for the agony and suffering of the members of
the petitioners society and above all the breach of their Constitutional rights.
43. At this stage, Mr. Sharma on instructions of Mr. P. B. Rajput,
Divisional Officer (Kharghar & Kamothe) CIDCO who is present in Court
states that the Occupation Certificate shall be issued within one week from
the date a copy of the order is available. Considering such stand as taken on
behalf of the CIDCO and accepting the persuasion and perseverance of Mr.
Sharma, and the fair stand in this regard as taken on behalf of the petitioner,
we reduce the cost to Rs.50,000/-.
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44. Except for what has been examined hereinabove, we have not
examined any other issues.
45. Rule is made absolute in the aforesaid terms. No costs.
(ADVAIT M. SETHNA, J.) (G. S. KULKARNI , J.)
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