Bombay High Court
M/S. Atria Constructions vs The Municipal Commissioner And Ors on 21 November, 2025
Author: G.S. Kulkarni
Bench: G. S. Kulkarni
2025:BHC-AS:50416-DB
WP 1022-25CORRECTED.DOC
PRAJAKTA
SAGAR
VARTAK
Digitally signed by
PRAJAKTA SAGAR
VARTAK
Date: 2025.11.21
16:12:49 +0530
PSV/VSA/PVR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1022 OF 2025
M/s. Atria Constructions, represented through
its partners Mr. Dhananjay Nivrutti Thite &
Mr. Anil Ramalinga Reddy ... Petitioner
Vs.
(1) The Municipal Commis, Pune
(2) The City Engineer, PMC Building, Pune
(3) The Junior Engineer, Bldg. Development Dept., Pune
(4) The Deputy Engineer, Bldg, Development Dept., Pune
(5) Wellbuild Merchants Pvt. Ltd. through its Director
(6) The State of Maharashtra ... Respondents
WITH
WRIT PETITION NO. 10414 OF 2025
(1) Pooja B. Jain
(2) Rahul A. Jain
(3) Indermal V. Jain
(4) Dilip K. Bathiya
(5) Bhawarlal P. Jain
(6) Jagruti V. Doshi
(7) Sahit S. Oswal
(8) Piyush D. Lodha
(9) Champat Kumar Jain
(10) Sachin M. Palresha
(11) Akshay P. Jain
(12) Hitesh M. Jain
(13) Roshan J. Jain
(14) Pooja S. Swami
(15) Shaileshkumar K. Golesha
(16) Mahendra M. Jain
(17) Raj P. Kothari
(18) Anil B. Gundecha
(19) Surekha A. Semlani
(20) Kantilal B.Jain
(21) Kishor M. Oswal
(22) Sachin R. Jain
(23) Riteshkumar S. Jain
(24) Praful Mehta
(25) Vivek H. Gada
(26) Vaibhav P. Gandhi
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(27) Pravin M. Bora
(28) Vikram Kumar Jain
(29) Nilesh N. Shah
(30) Dilip N. Oswal
(31) Jayendra P. Shah
(32) Bharat M. Jain
(33) Ankita v. Kasat
(34) Shobha H. Bhattad
(35) Manish A. Masalia
(36) Shankarlal Kasaram Parihar
(37) Mukesh G. Oswal
(38) Sanjay K. Parmar
(39) Ritesh Singhvi
(40) Jugalkishor Toshniwal
(41) Jyoti D. Bothara
(42) Sudin S. Mehta
(43) Ritesha A. Rathor
(44) Vimla Jain
(45) Karishma Sarnot
(46) Nitesh Singhvi
(47) Nayana H. Valand
(48) Vishal J. Shah
(49) Rajgruhi Residency D Wing Co-op. Hsg. Society Ltd. ... Petitioners
Vs.
(1) Pune Municipal Commissioner
(2) The Executive Engineer, Bldg. Development Dept., Pune
(3) The City Engineer, PMC Building, Pune
(4) The Deputy Engineer, Bldg, Development Dept., Pune
(5) Wellbuild Merchants Pvt. Ltd. through its Director
(6) M/s. Atria Constructions
(7) The State of Maharashtra ... Respondents
_______
Mr. Girish S. Godbole, Senior Advocate a/w. Mr. Vijay Upadhyay and Mr. Sitesh
Sharma for the petitioner in WP/1022/2025.
Mr. Pritesh Burad a/w. Ms. Samita Vaviya, Ms. Kiran Yadav i/b. Pritesh Burad
Associates for the petitioner in WP/10414/2025.
Mr. Vishwanath Patil for respondent nos. 1 to 4/PMC.
Mr. Ashish Kamat, Senior Advocate a/w. Mr. Shrey Fatterpekar, Ms. Nidhi, Mr.
Vishal Tiwari, Mr. Himanshu Singh i/b. White and Brief Advocates and Solicitors
for respondent nos. 5.
Mr. Mayur Khandeparkar a/w. Mr. Akshay Deshmukh, Mr. Sumit Chaudhary, Mr.
Sanket Kadam for the Intervenor/Applicant in IA/1309/2025.
Ms. Savita A. Prabhune, AGP for the State.
_______
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CORAM : G. S. KULKARNI &
ARIF S. DOCTOR, JJ.
RESERVED ON : 4 AUGUST, 2025
PRONOUNCED ON : 21 NOVEMBER, 2025
Judgment (Per G.S. Kulkarni. J.) :-
1. Rule returnable forthwith. By consent of the parties heard finally.
2. These are two proceedings filed under Article 226 of the Constitution of
India.
3. Writ Petition No. 1022 of 2025 is filed by M/s. Atria Constructions
assailing a Stop Work Notice dated 10 December 2024 issued to such petitioner
by respondent nos.3 and 4, namely the Junior Engineer and the Deputy Engineer
of Building Development Department of the Pune Municipal Corporation-
respondent no.1 (for short, "the Municipal Corporation").
4. Writ Petition No.10414 of 2025 is filed by 49 petitioners who have
purchased flats in the building in question constructed by M/s. Atria
Constructions, who contend that they are being deprived of the flats purchased by
them in view of the municipal corporation halting grant of Occupation Certificate
by issuance of the impugned stop work notice.
5. For convenience, we refer to the facts on record of the first writ petition
filed by M/s. Atria Constructions, who is referred as "the petitioner", and the
petitioners in the companion petition would be referred as "the flat purchasers".
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Facts:-
6. This is a peculiar case as the facts would unfold. The dispute pertains to a
building project described as 'Rajgruhi Residency' comprising construction of
four wings which include four podiums plus amenities plus 20 floors, being the
construction of each of the wings.
7. At the outset, we may observe that as the facts unfold, the entire
controversy underlies a dispute between respondent no.5-Wellbuild Merchants
Pvt. Ltd./the owner of the land (for short, "Wellbuild") who was also the
developer of the 'A' and 'B' wings, which work was in fact contracted to the
petitioner. Further the petitioner under an agreement dated 18 August 2021
entered into with Wellbuild, is undertaking construction of wings 'C' and 'D'. It
is also not in dispute that the construction of Wings 'A' and 'B' was completed
long back. Also, an Occupancy Certificate was granted, consequent to which the
flat purchasers are in occupation of their respective tenements, who have also
formed a cooperative society.
8. Insofar as Wings 'C' and 'D' are concerned, the construction of which is
undertaken by the petitioner, the construction of Wing 'D' stands fully completed
and is awaiting an Occupancy Certificate, which has already been applied by the
petitioner. Also large number of flats in Wing-D are already sold by the
petitioner, and such flat purchasers are awaiting occupancy of their respective flats.
The construction of Wing-C has reached upto 4 floors.
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9. It is at this stage, a very peculiar dispute has arisen, which appears to be
wholly between Wellbuild and the petitioner. The flat purchasers of Wing-D are
sandwiched between these disputing parties. It also appears that the municipal
machinery is being used to settle these private disputes.
10. The following discussion on the facts would shed light on such factual
conspectus:-
11. On 25 October 2019, a Memorandum of Understanding was executed
between the petitioner and Wellbuild, whereby the petitioner invested a sum of
Rs. 40 Crores to ensure completion of the project.
12. On 18 August 2021 and 26 August 2021, Articles of Agreement/
Development Agreement along with a Power of Attorney were executed and
registered between the petitioner and Wellbuild, whereunder the petitioner was
appointed as the "developer" by Wellbuild to complete the project which is
primarily the Wings 'C' and 'D' of the said project.
13. About 19 months back i.e. in December 2023, the petitioner fully
completed the construction of Wing/Tower-D. The plans in this regard are dated
13 October 2021 and were duly sanctioned by the Municipal Corporation. For
the D-Wing, the total FSI for construction was approved at 15,870.02 sq. meters
with 80 approved flats/tenements.
14. The land on which the project of these buildings (Wings A, B, C & D) is
being undertaken, has also a DP work of a storm water drain, which was to be
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realigned. On 02 February 2024, in regard to the realignment of Nala/storm
water line, a work order was issued by the Drainage Department of the Municipal
Corporation. The petitioner has contended that 70% of the realignment of the
storm water drain (nala) already stands completed, hence the purported
grievances of the residents of Towers A and B would not survive.
15. It is on such backdrop, as on date, the petitioner's position is that the
petitioner has completed the work of Tower/Wing 'D'. It is the petitioner's case
that at this crucial juncture, Wellbuild terminated the Articles of Agreement dated
18 August 2021. Thus, the disputes and differences had arisen between Wellbuild
and the petitioner on such count.
16. It needs to be stated that Wellbuild, even prior to the receipt of the
petitioner's reply to the termination notice dated 16 April 2022, filed an
application under Section 9 of the Arbitration and Conciliation Act, 1996 (for
short, "ACA") being Civil Miscellaneous Application No. 544 of 2024 before the
Court of learned District & Sessions Judge (Commercial Division) at Pune. On
29 April 2024, the petitioner also filed a cross application under Section 9 of the
ACA being Civil Miscellaneous Application No. 582 of 2024.
17. The disputes were also taken by WellBuild before different authorities, the
same need not be detailed, suffice it to observe that Wellbuild approached the
Maharashtra Pollution Control Board (for short, "MPCB") applying to the said
authority not to process the petitioner's application for "revalidation of consent to
establish and consent to operate", which was pending consideration before the
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MPCB. On 29 August 2024, Wellbuild in fact instructed its Director to
withdraw the pending application for grant of revised Environmental Clearance.
18. The applications filed by Wellbuild, as also by the petitioner under Section
9 of the ACA were adjudicated by the Competent Court by an order dated 20
September 2024, whereby the Section 9 ACA application filed by Wellbuild was
rejected, and the Section 9 application filed by the petitioner was partly allowed.
An appeal was preferred against the said order by both the parties under Section
37 of the ACA. A Division Bench of this Court, by a common judgment and
order dated 22 November 2024 disposed of both the appeals, wherein the orders
passed on Section 9 proceedings filed by the petitioner were sustained. Thereafter
inter se between the parties it was agreed that the disputes and differences be
referred for adjudication by appointing an arbitral tribunal. Accordingly, a former
Judge of this Court was appointed as the sole arbitrator to adjudicate the disputes
between the parties. The request for continuation of interim relief also came to be
rejected by the Appellate Court. The relevant part of the said order reads thus:
"61. M/s. AC has furnished an undertaking to this Court, which reads as
follows :-
"AFFIDAVIT/UNDERTAKING ON BEHALF OF THE
RESPONDENTS ABOVENAMED:
I Shri. Anil Reddy age: 56 years, Occ: Business, having office at
440/441, Nanapeth, PGI Building, Pune 411002, the partner of the
the Respondent No.1 abovenamed, hereby undertake as follows:
a. M/s. Atria Constructions undertakes not to sell balance 5 flats in
Tower D and balance 63 flats in Tower C in the scheme "Rajgruhi
Residency" further at less than Rs.9,500/- (Rupees Nine Thousand
Five Hundred Only) per Sq.ft on saleable area on rera carpet basis viz
rera carpet area + 35% as defined in Articles of Agreement dated
19/08/2021.
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b. The Respondent No.1 undertakes to continue to sale the units
not be below the rate of Rs. 9500/- (Rupees Nine Thousand Five
Hundred Only) per Sq.ft on saleable area on rera carpet basis viz rera
carpet area + 35% as defined in Articles of Agreement dated
19/08/2021 and inform the Appellant about the rate of selling of
units and give him 30 days' notice to make any further offer and is
obligated to conclude the transaction at such higher rate and in
favour of the purchaser nominated by the Respondent or bring any
fresh Purchaser for more than the rate provided by the Respondent
No.1. The parties hereby agree that such offer and/or counteroffer
shall not be below the rate of Rs. 9500/- per sq. ft. (Rupees Nine
Thousand Five Hundred Only) on saleable area on rera carpet basis
viz rera carpet Page 21 of 25 area + 35% as defined in Articles of
Agreement dated 19/08/2021.
c. Both the Appellant and the Respondent No. I agree and
undertake that they shall not in any manner communicate with
and/or approach the prospective purchaser nominated by the other
side. All communication in relation to the proposed transaction(s)
shall be only between the Appellant and Respondent No. 1."
62. Despite the undertaking, even if we accept Mr Kamat's contention
that M/s. AC will accept cash amounts; it is always open to WMPL to
lead cogent evidence and recover damages or proper market value.
However, at this stage, it will not be appropriate to stop the construction
or restrain the sale of apartments for a rate not below Rs.9500/- per sq.
ft. even though the agreement between the parties refers to average
minimum rate of Rs.8000/- per sq. ft. WMPL, had pleaded that the rate
in the area would be Rs.9500/- per sq. ft. Mr. Kamat clarified that this
would be the minimum rate.
63. M/s. AC, consistent with the undertaking quoted above, shall not
agree to sell any apartments at a rate of less than Rs.9500/- per sq. ft.
The undertaking given on behalf of M/s AC is now accepted as an
undertaking to this Court.
64. However, no case is made to restrain the execution of agreements
regarding 17 apartments. These were transactions entered into much
earlier, but no formal agreements were executed. Such execution had to
be deferred on account of status quo orders and statements. Therefore, at
this stage, there is no point in imposing any restrictions regarding these
17 allotments or agreements. The position of the remaining purchasers is
not much different from that of these 17 allottees.
65. M/s AC will, however, not claim any equities regarding sale of
apartments. This position must be made clear to the 17 allottees by
informing them about the pendency of disputes and legal/arbitration
proceedings.
66. Regarding the challenges to the order by which the learned District
Judge has granted interim relief to M/s. AC, at least prima facie, the
reliefs are broad-based to some extent. While WMPL cannot be allowed
to take the law into its hands and physically obstruct the construction of
the project, no blanket injunction can be granted restraining WMPL
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from filing complaints to statutory and Environmental protection
authorities about the alleged deficiencies. This cannot be called some
unlawful obstruction. With such modification and clarification, the
order granted favouring M/s AC is sustained.
67. The learned counsel for the parties proposed that the interim
arrangement could operate until the arbitrator enters on reference and
decides the issue of interim relief. Mr. Kamat submitted that the
arrangement that this Court's orders could be treated as ad-interim relief
and the applications under Section 9 could then be treated as
applications under Section 17 before the Arbitral Tribunal. The Arbitral
Tribunal could then dispose of these applications and decide on the
interim relief that could operate pending the disposal of the arbitration
proceedings.
68. Mr. Godbole submitted that there could be no objection to this
Court's order operating as an ad-interim arrangement. He, however,
submitted that there are subsequent developments and therefore, the
parties could be given liberty to file applications under Section 17 before
the Arbitral Tribunal. The Arbitral Tribunal could then decide such
applications without being influenced by the ad-interim arrangement
that could be made by this Court.
69. Any direction to treat the applications under Section 9 as Section 17
applications would involve complications, though it might save paper.
Subsequent developments might be difficult to record. Therefore, it
would be appropriate to grant the parties leave to file applications under
Section 17, which could then be decided without being influenced by
this interim arrangement.
70. The above arrangement will operate as an ad-interim arrangement.
The parties may file their applications under Section 17 within four
weeks from today. The above ad-interim arrangement shall operate until
the Arbitral Tribunal disposes of Section 17 applications, if filed or until
the Arbitral Tribunal may direct. The Arbitral Tribunal must decide the
applications under Section 17 without being influenced by any
observations in the impugned judgments and orders dated 20 September
2024 or this judgment and order."
19. It is thus clearly seen from the aforesaid orders passed by the Division
Bench that the disputes inter se between Wellbuild and the petitioner were to be
the subject matter of the arbitral proceedings.
20. Thereafter on 02 December 2024, the petitioner preferred a Civil Suit
being Special Civil Suit No. 2012 of 2024 before the Court of learned Civil Judge
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Senior Division, Pune against the Co-operative Society formed by the flat
purchasers of 'A' and 'B' Wings of the said project. In the said civil suit, the
learned trial Judge passed an ad-interim order restraining the society and its
residents from creating obstruction in the work of realignment of the Nala and
also restrained illegal use of ramp of Tower 'C', which was yet to receive the
completion certificate.
21. The petitioner contends that, thus there were two sets of orders, namely,
orders passed by the Court(s) under the ACA, as also orders passed by the Civil
Court against the society, hence there was no impediment for the petitioner to
carry forward the project by obtaining the O.C. in regard to 'D' Wing, which was
complete.
22. The petitioner contends that on 06 December 2024 at about 04.57 p.m.
(being a Friday), the petitioner received a WhatsApp notice from the Deputy
Engineer, Building Development Department of the Municipal Corporation
(respondent no.4) informing the petitioner of a hearing scheduled before
respondent no.2-City Engineer of the Municipal Corporation on 9 December
2024, however, no details as to the reason/ context of such hearing were informed
to the petitioner.
23. The petitioner has contended that most surprisingly, the hearing, which
was held in pursuance of the said WhatsApp notice dated 06 December 2024,
was attended by several persons, namely, an RTI Activist, representatives of
Wellbuild and their advocates, all this was without any intimation of this nature of
hearing to the petitioner.
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24. The petitioner tendered its written response, post conclusion of the
hearing held by respondent no.2-City Engineer, inter alia highlighting the
recommendation in regard to Revalidation of the Consent to Establish and
Renewal of the Consent to Operate being duly recommended as per the minutes
of the consent committee meeting dated 14 November 2024 held between the
petitioner and Wellbuild.
25. It is the petitioner's case that immediately on the next day i.e. on 10
December 2024, the "impugned stop work notice" came to be issued by
respondent no.3-Deputy Engineer of the Municipal Corporation, which is stated
to be issued on an approval being granted by respondent no.2-City Engineer. The
impugned stop work is issued inter alia on the grounds of :- (i) Refusal of Consent
to Establish under Section 27 of the Water (Prevention & Control of Pollution)
Act, 1974 and Section 21(4) of the Air (Prevention & Control of Pollution) Act,
1981, (ii) Non-receipt of Consent to Operate in respect of each project,
(iii) Failure to furnish revised Clearance as per sanctioned IOD dated
22/02/2023, (iv) Alleged deviations in actual construction from Environmental
Clearance Certificate and (v) Failure to complete shifting work of Nala as per
order dated 22 May, 2023 passed by Respondent No.1.
26. The petitioner has contended that on 19 December 2024, in pursuance of
the minutes of the Consent Committee Meeting dated 14 November 2024, the
petitioner is stated to have received Revalidation of Consent to Establish, for a
further period of 5 years. Also renewal of Consent to Operate [Part II] valid till
12 January 2026 was granted.
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27. It is the case of the petitioner that one Mr. Dilip Kale, Architect of
Wellbuild, at the behest of Wellbuild and without there being any requirement
from the Municipal Corporation, issued a certificate dated 21 August 2024. This
certificate was contrary to the sanctioned plans, which had formed the basis of
issuance of a Commencement Certificate dated 13 October 2021 as issued to the
petitioner. According to the petitioner, in such certificate, Mr. Dilip Kale falsely
stated that FSI of Tower 'D' is about 14599.71 sq. meters and the construction of
Tower 'D' as undertaken was of 15870 sq. meters. Being aggrieved by such
incorrect/false recording of the area in the certificate issued by Mr. Dilip Kale, the
petitioner issued an email dated 31 January 2025 to him to furnish certified
copies of official plans, building wise, which were submitted before the
environment Committee in 2017 and details of disclosure of information in that
regard.
28. On 26 February 2025, the petitioner also obtained renewal of 'Consent to
Operate' part III valid till 30 June 2026.
29. Thereafter on 24 April 2025, the petitioner applied for an architect's
certificate along with the papers which were made available by Architect Mr. Dilip
Kale. Architect Mr. Vilas Tarvade issued a certificate stating that the architect's
certificate issued by Mr. Dilip Kale (Wellbuild's Architect) disclosed incorrect and
inaccurate figures and that even the reference contained therein to the IOD
submitted for environment clearance (for short, "EC") on 19 August 2023 was
grossly inaccurate and erroneous. He also recorded that on a detailed scrutiny of
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the record, the IOD which was submitted for E.C. on 19 August 2023 came to be
duly withdrawn and a fresh IOD dated 26 November 2023 was submitted for EC
(Environment Clearance) along with a proposal no. SIA/MH/INFRA2/
450922/2023.
30. It is on such backdrop, the petitioner has contended that the impugned
stop work notice dated 10 December 2024 is illegal on each of the grounds on
which the same has been issued. The petitioner's case on each of the points as
contained in the stop work notice submitted to the municipal corporation in a
tabular form is required to be noted which read thus:-
"
No. Alleged Deficiency highlighted Petitioner's response
in Show Cause Notice
1. Refusal of Consent to Establish (i) The Consent to Establish for the
under Section 27 of the Water Project "Rajgruhi Residency" vide UAN
(Prevention & Control of CE1505000801 had expired on
Pollution) Act, 1974 and 12/01/2021.
Section 21(4) of the Air (ii) The revised sanction plan
(Prevention & Control of CC/2042/2021 was sanctioned from
Pollution) Act, 1981 Pune Municipal Corporation by
Wellbuild Merchants Pvt Ltd on
13/10/2021. A valid Consent to
Establish is a precursor for sanction of
Building Plan alongwith a valid
Environment Clearance Certificate
(iii) The Revalidation of Consent to
Establish was applied by Wellbuild
Merchants Pvt Ltd on 28/4/2023 vide
UAN 000161756 which was rejected on
14/01/2024 due to negligence in
responding to the show cause notice
(iv) The Revalidation of Consent to
Establish was applied by Atria
Constructions on 02/02/2024 vide
UAN 0000197009 which was finally
recommended in the Consent
Committee meeting on 14/11/2024.
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(v) We have now received the
Revalidation for Consent to Establish on
19/12/2024 valid till 12/01/2026
(Annexure - । D)
(vi) The Consent to Operate obtained
by Wellbuild Merchants Pvt Ltd. vide
UAN 000094164 dated 03/07/2021
had expired on 03/06/2021
(vii) The Part Completion Certificate for
A & B Building completed by Wellbuild
Merchants Pvt Lid were issued before
Consent to Operate dated 03/07/21 was
obtained
(viii) The Renewal of Consent to
Operate obtained by Wellbuild
Merchants Pvt Ltd. vide UAN
0000116949 dated 30/07/2021 expired
on 03/06/2023
(ix) The Consent to Renewal! was
applied by Atria Construction on
16/04/2024
(x) The Renewal of Consent to Operate
was recommended in the Consent
Committee meeting on 14/11/2024.
This was highlighted in the meeting, in
the CE Office on 9/12/2024 and was
also attached in our submission on
10/12/2024.
(xi) We have now received the Renewal
for Consent to Operate on 19/12/2024
valid till 30/06/2025 (Annexure -E)
2 Non-receipt of Consent to Explained above
Operate in receipt of each
project
3 Failure to furnish revised Sanctioned Environment Clearance
Environment Clearance as per Details
sanctioned IOD dated (i) The Environment Clearance order
22/02/2023 IEC/Samitee/-5, dated October 13,
2017, sanctioned a total built-up of
72,032.18 sq. mtrs. for a plot area of
18,000 sq. mtrs.
Revised Environment Clearance
Application
(ii) An Approved Intimation of
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Disapproval (IOD) dated December 20,
2023, vide IOD Zone/2/7472, was
submitted for a Revised Environment
Clearance for an increased built-up area
of 84,131.86 sq. mtrs. Before the-State
Environment Assessment Committee
(SEAC) vide Application No.
S[A/MH/INFRA2/450922/2023. The
SEAC cleared the proposal in its 187th
meeting dated December 27, 2023, and
forwarded it to the State Environment
Impact Assessment Authority (SEIAA).
Construction Status as on 20.12.2024
(i) As of date, we have constructed
68,132.86 sq. Mtrs, as mentioned in
your Work Stop Notice order.
Voluntary Construction Halt
(i) Construction for Building C has been
halted voluntarily, as we have reached
the threshold built area permitted under
the sanctioned limit in the Environment
Clearance dated October 13, 2017.
Undertaking
(i) We undertake not to carry out any
additional construction until the SEIAA
clears the project as per the IOD dated
December 20, 2023, vide 10D
Zone/2/747, and revised sanction is
obtained from the Pune Municipal
Corporation
4 Alleged deviations in actual Environment Clearance Compliance
construction from Environment (i) As mentioned above, there are no
Clearance Certificate deviations from the Certificate
Environment Clearance Certificate
dated October 13, 2017.
Inspection Report
(i) The Inspection Report bearing No. F.
No. EC- 2334/RON/2023-NGP, dated
December 19, 2023. This Certified
Compliance Report highlights that no
deficiencies or deviations in construction
were found.
Environment Clearance History
(i) The Certified Compliance Report
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references the grant of Environment
Clearance vide:
SEAC-III-2014/C.R.194/TC-3, dated
December 10, 2015, for a plot area of
18,000 sq. mtrs. with a total built-up
area of 56,950.70 sq. mtrs.
(ii) IEC/Samitee/-5, dated October 13,
2017, for a plot area of 18,000 sq. mtrs.
with a total built-up area of 72,032.18
sq. mtrs.
Architect's Certification
(i) The licensed Architect has certified
on 21/08/2024 that the total built-up
area constructed till date is 68,132.86 sq.
mtrs., which is within the EC sanctioned
limit of 72,032.18 sq.mtrs (Annexure -
F)
(ii) There are no deviations in
construction beyond the granted
Environment Clearance. The State
Environment Assessment Committee
(SEAC) has recommended the grant of a
further Revised Environment Clearance
Certificate and forwarded the proposal
to the State Environment Impact
Assessment Authority (SEIAA).
5 Shifting / Re-alignment work of Background of Work Order
Nala as per Order bearing (i) A Work Order, Ja Kra 3457 dated
Outward No. MC/UDCPR- 2/2/2024 was issued to Atria
20/SEC/3. 1.1(ii)/443, dated Constructions by the Executive,
22/05/2023 Drainage Department referencing an
Order dated May 22, 2023. This Order
granted permission to Atria
Constructions to shift/realign the
Nala/Storm Water Line as outlined in
the proposed plan. The Order specified
that Atria Constructions would bear all
expenses for the realignment. Please
refer to Clause 11 and Clause 19 of the
order Ja Kra 3457 dated 2/2/2024
1. That the entire work needs to be
completed before 1/2/2025, and
2. That a final Completion Certificate
would not be granted until obtaining a
completion certificate from the
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Department of Drainage Maintenance
and Repair of the Municipal
Corporation of Pune.
Obstructions by CHS Building A &
Building
(i) Despite the Work Order,
Respondent Societies (Rajgruhi
Residency Building A CHS Ltd. and
Rajgruhi Residency Building B CHS
Ltd.) colluded to obstruct the
development work. Atria Constructions
had requested the Societies to
temporarily shift vehicles to facilitate
excavation and pipe-laying work.
Despite Court Orders, the instructions
have been willfully defied.
Letter to Chief Engineer, PMC
(i) On April 22, 2024, Atria
Constructions wrote to the Executive
Engineer, Drainage and Repairs
Department, Pune Municipal
Corporation, highlighting the
obstructions and non-cooperation from
the Societies.
PMC's Warning to Societies
(i) On May 05, 2024 (Annexure-G)and
on October 17, 2024 (Annexure-H), the
Superintendent Engineer, PMC, warned
the Societies that obstructing the Nala
development work could cause damage
to life and property, especially during
monsoons.
(ii) However, the Society members have
not relented from their position and
continue obstructing laying the 900 mm
Storm Water Line
Special Civil Suit No. 2012/2024
(i) Due to persistent obstructions, Atria
Constructions filed Special Civil Suit
No. 2012/2024 on November 27, 2024,
against the Societies. The Civil Judge,
Senior Division, Pune, granted an Ad-
Interim Ex-Parte Order on December 2,
2024, restraining the defendants from
obstructing the development and
construction activities.
(ii) Despite the Court Orders, the
obstructions continue unabatedly.
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31. It is thus the petitioner's case that, the petitioner having completed the
entire construction/development of Wing 'D'/Tower 'D', by December 2023
comprising of 80 tenements, out of which 58 tenements were sold under
registered deeds and 17 tenements were booked, at such crucial stage Wellbuild
started creating hurdles only to shift the burden of completion of amenities of
Wings 'A' & 'B onto the petitioner. It is submitted that all attempts initiated by
Wellbuild had failed, hence the motive to oust the petitioner from the project
(Rajgruhi Residency) when it failed to secure any interim injunction against the
petitioner in the legal proceedings. It is submitted that Wellbuild to overcome
such failures, started making multiple complaints through other methods, namely
through RTI activists, social activists, politicians and residents of Tower 'A' and 'B'
from whom such complaints against the petitioner were generated during the
period April 2024 to 24 December 2024 which were filed with the Municipal
Corporation and with the authorities granting Environmental Clearance (EC).
32. The petitioner contends that such persons, who are wholly unconnected
with the project and were connected and/or associated with Mr. Yuvraj Dhamale,
Director of Wellbuild. It is the petitioner's case that all such complaints were
intended to withhold issuance of the occupation certificate to be issued in favour
of the petitioner in respect of Tower 'D' to be granted on the petitioner's
application, knowing well that third party rights are created and this would cause
a serious prejudice and losses to the petitioner thereby harming the innocent flats
purchasers of Tower 'D' as also the petitioner's reputation. It is hence the
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petitioner's case that the reliefs as prayed for in the writ petition be granted to the
petitioner.
33. In supporting the petitioner's case for reliefs as prayed for in the writ
petition, Mr. Godbole, learned senior counsel for the petitioner has made the
following submissions:-
i. The impugned stop work notice is wholly illegal, being contrary to the
record of the completed work. It is in breach of principles of natural justice, high-
handed and issued for extraneous reasons.
ii. The impugned action on the part of the Assistant Engineer and the
Deputy Engineer of the municipal corporation to issue the impugned stop work
notice dated 10 December 2024, on the grounds inter alia that (i) there is no
consent to establish and operate from MPCB; (ii) that there is a failure to shift the
Nala despite permission dated 25 February 2025 and in respect of which IOD
was issued on 22 February, 2023; and (iii) a revised EC not being obtained on an
alleged variation from the original EC dated 04 October 2017 when compared to
the actual construction at site, were wholly arbitrary reasons, contrary to the clear
factual situation as explained in the chart (supra).
iii. Respondent no.2-City Engineer exercised undue haste in passing the
impugned order/stop work notice inasmuch as, a notice scheduling a hearing was
issued to the petitioner by the Executive Engineer on 06 December 2024, calling
upon the petitioner to appear before the City Engineer on 09 December 2024 at
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11.30 a.m. and the impugned order was passed on 10 December 2024. It is thus
submitted that considering such haste and the lack of adequate opportunity being
granted to the petitioner, malafides are necessarily required to be presumed on the
part of such officials of the Municipal Corporation. Further no reasons being set
out in the notice as to the purpose for which meeting was scheduled speaks
volumes of the high-handed and arbitrary approach of the Municipal officials. In
support of such contentions, reliance is placed on the decisions of the Supreme
Court in Dr. S. P. Kapoor vs. State of Himachal Pradesh & Ors. 1, Zenit Mataplast
Private Limited v/s. State of Maharashtra & Ors. 2, Fuljit Kaur vs. State of Punjab
& Ors.3, Rajiv Kumar vs. State of Uttar Pradesh & Anr.4 and Ayaaubkhan
Noorkhan Pathan vs. State of Maharashtra & Ors.5
iv. No show cause notice was issued to the petitioner, as the basic principles of
law would require, before a hearing being fixed before the City Engineer on 09
December 2024. Also the impugned order/stop work notice was passed not by
the authority, namely, the City Engineer who presided over the hearing, but by
the Assistant Engineer and the Deputy Engineer. This was a novel method, i.e.,
merely on a purported approval by the City Engineer. It is submitted that apart
from the impugned stop work notice, no reasoned order is passed by the City
Engineer, also such order is neither pleaded nor placed on record on behalf of the
1 (1981) 4 SCC 716
2 (2009) 10 SCC 388
3 (2010) 11 SCC 455
4 (2017) 8 SCC 791
5 (2013) 4 SCC 791
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respondents. For such reason, the impugned stop work notice dated 10
December 2024 is in breach of the principles of natural justice, high-handed and
void ab initio.
v. The purported exercise of the statutory power is purely to assist Wellbuild
in the private dispute which the petitioner has against Wellbuild, for the reason,
that only after the order dated 22 November 2024 was passed by the Division
Bench of this Court, dismissing Wellbuild's appeal filed under Section 37 of the
ACA, the said notice dated 06 December 2024 was issued to the petitioner
scheduling a hearing on 9 December 2024 on which the impugned order was
immediately passed on 10 December 2024. Hence, such hasty exercise of powers
is clearly high-handed, arbitrary and malafide.
vi. The IOD dated 22 February 2023 which was withdrawn by issuing new
IOD dated 26 November 2023 providing for an extra area, had not culminated
into a Commencement Certificate since a revised EC proposal was pending.
vii. During the hearing which had taken place before the City Engineer, on 9
December 2024, the MPCB resolution dated 14 November 2024 was relied upon
by the petitioner, granting revalidation of Consent to Establish as also Consent to
Operate. Such material was not considered in passing the impugned order and on
the ground of absence of such consent, the stop work notice has been issued. The
impugned stop work notice dated 10 December 2024, only on this count, is
required to be held to be perverse, arbitrary and illegal.
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viii. Passing of the impugned order has amounted to nullifying the injunction
which was granted by the Civil Court against the society formed by the residents
of 'A' and 'B' Wings, who were creating obstruction in the realignment of the
Nala. By any indirect methods of this kind, court orders cannot be defeated. This
amounts to misuse of the machinery of the municipal corporation.
ix. One of the vital aspects of the matter is to the effect that the construction
being undertaken was under a valid Environmental Clearance and the same was
undertaken as per the sanctioned plan dated 13 October 2021 obtained by
Wellbuild, which provided for construction of an area of more than 81,000 sq.
mtrs. Hence there was no violation of any FSI norms sanctioned for the project.
x. That such high-handed action on the part of the City Engineer/Assistant
Engineer is apparent as even the Environmental Clearance dated 13 October
2017 provided for total construction area of 72,032.18 sq. mtrs. For 'D' Wing the
Environmental Clearance provided for 4P (4 podiums) + Amenity + 20 Floors
and the construction as presently undertaken by the petitioner, was within the
area as provided under the Environmental Clearance limits and was halted at
68,132 sq. mtrs. It is submitted that the construction of 'D' wing was completed
only till 20 floors and in fact, there is a reduction in height. It is submitted that
the sanctioned plan dated 13 October 2021 provides for 80 flats, hence, the
construction is only of 80 flats, thus, there is no excess construction whatsoever as
alleged.
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xi. It is next submitted that the malafide and high-handedness in the actions
of the municipal officers is writ large, also considering Intervention Application
No. 1309 of 2025. The submission is that the modus operandi of Wellbuild in
connivance with the official machinery of the municipal corporation and private
land parties stands completely exposed, also considering the attempt of the
intervenor coming before this Court supporting Wellbuild's case as the intervenor
is unable to even disclose the source of his knowledge and information or explain
how he had learnt about the project and more particularly about the litigation
inter se between the petitioner and Wellbuild and by the petitioner against the
society more particularly, the ad-interim orders dated 28 May 2024 and 25 June
2024 passed on the Section 9 proceedings, which was purely a matter between the
petitioner and Wellbuild.
xii. It is submitted that, also the intervenor has miserably failed to disclose the
reasons for not apprising the concerned authorities on the judgment and order
dated 20 September 2024 passed in Civil M.A. No. 544 of 2024 and Civil M.A.
No. 582 of 2024, whereby Section 9 application filed by Wellbuild came to be
rejected and Section 9 application filed by the petitioner was partly allowed. It is
submitted that this shows apparent dishonesty and the intention of Wellbuild to
mislead the authorities.
xiii. The intervenor has also miserably failed to disclose alleged source of
information i.e., the date of his alleged RTI applications. In such context, it is
submitted that the impugned order has blindly accepted such facts presented by
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Wellbuild and the intervenor when these parties failed to establish the correctness
of their case. It is submitted that even the alleged Certificates annexed as Exhibit-
G to the Intervention Application dated 13 January 2025 and 10 January 2025
are documents generated much after the passing of the impugned stop work
notice dated 10 December 2024, which clearly demonstrates the role being
played by the intervenor, purely at the behest of Wellbuild. In such context, it is
further submitted that the intervenor has also failed to disclose the source/ details
of receipt of notice for hearing dated 09 December 2024, which came to be
attended by him, as seen from the Attendance Sheet, annexed at page 92 of the
petition. It is, hence, submitted that all these issues completely expose the
complicity and the collusion between Wellbuild and the intervenor. In such
context, reliance is placed on Ayaaubkhan Noorkhan Pathan vs. State of
Maharashtra & Ors. (supra).
34. It is next submitted that there is no excess construction undertaken by the
petitioner much less contrary to the sanctioned building plans and the petitioner
had already stalled its construction when the construction reached the prescribed
limits under the Environmental Clearance dated 13 October 2017 at 68,132 sq.
mtrs. which is almost 4,000 sq. mtrs. within the approved Environmental
Clearance as granted. It is for such reason that there is no impediment whatsoever
for grant of Occupancy Certificate in regard to the already completed
construction work of Tower 'D' and part of Tower 'C'.
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35. It is submitted that irreparable prejudice is being caused not only to the
petitioner but also to several flat purchasers with whom registered agreements are
already executed and who are waiting to occupy their respective flats having
parted with valuable money. It is thus submitted that the petition is required to
be allowed.
Respondent/Wellbuild's reply affidavit:-
36. A brief reference to the reply affidavit filed on behalf of Wellbuild can be
made, which inter alia contends that the petitioner had applied for revised
Environmental Clearance which is yet to be issued. It is contended that in a
meeting held on 27 February 2025, the State Environment Impact Assessment
Authority ("SEIAA") had rejected the petitioner's application for obtaining
revised Environmental Clearance, which was referred back to the SEAC-III for
investigation and reconsideration. It is stated that thereafter, in a meeting held on
14 May 2025, the SEAC inter alia noted that the petitioner had submitted a
proposal for revision of the EC without first amending the previously granted ECs
to reflect the change in the name from respondent no.5 to the petitioner as the
Project Proponent. In such context, it is contended that the Committee observed
that the Project Proponent was required to submit a separate application in the
prescribed form through the PARIVESH portal for such an amendment. The
petitioner cannot be considered to be the Project Proponent. The Committee has
opined that the proposal could only be considered once the necessary change in
the proprietorship was duly processed and approved by the SEIAA. It is hence
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contended that the petitioner is yet to obtain revised Environmental Clearance
and hence, the reliefs as prayed for in the petition cannot be granted.
37. The reply affidavit has further set out the nature of the private dispute
between respondent no.5 and the petitioner and in such context, refers to the
various clauses of the Articles of Agreement dated 19 August 2021 and
Development Agreement dated 26 August 2021 entered between respondent
no.5 and the petitioner for construction of Tower 'C', (7 to 28 floors both
inclusive) and for Tower 'D'. Respondent no.5 has also contended that the
amounts had become due and payable to respondent no.5 from the petitioner
under the said agreements. On these contentions, it is prayed that the petition be
dismissed.
38. Mr. Kamat, learned senior counsel for the respondent-Well Build has made
the following submissions:
i. The Environmental Clearance in respect of the project was issued by
the Pune Municipal Corporation on 13 October 2017 (for short "2017
EC") incorporating condition no. 5, providing that in case of any deviation
or alteration in the project from the one already submitted to Pune
Municipal Corporation (PMC), a fresh application for amendment was
required to be submitted to the PMC, and the PMC, after assessing the
adequacy of the conditions imposed, would decide whether any additional
environmental protection measures were required to be incorporated. It is
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his submission that the 2017 EC was issued based on the plan then
sanctioned by the PMC. It is submitted that when there was an alteration
in the plans approved by the PMC, the petitioner was required to make a
fresh application for Environmental Clearance. It is submitted that on such
backdrop, the earlier sanctioned plans were revised on 13 October 2021,
which further revised on 22 February 2023. It is hence submitted that
once the plans stood amended, it was imperative that the petitioner applies
for a fresh Environmental Clearance prior to construction of any structure
beyond the scope of the 2017 EC and failure to do so, would amount to
breach of 2017 EC.
ii. It is submitted that as the petitioner has failed to obtain
fresh/revised Environmental Clearance, which the petitioner had applied
on 3 November 2023 and when such application was pending and/or is
yet to be decided, the petitioner cannot claim legitimacy of the
construction as undertaken in respect of Tower/Wing D.
iii. In the context of Environmental Clearance being applied for by the
petitioner, a meeting was held on 27 February 2025 of the State
Environment Impact Assessment Authority (SEIAA), which is stated to
have remanded the petitioner's proposal/application for obtaining revised
Environmental Clearance back to SEAC-III for investigation and
reconsideration. Thereafter, a meeting of the SEAC-III was held on 14
May 2025, in which SEAC-III inter alia noted that the petitioner had
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submitted a proposal for revision of the Environmental Clearance, without
first amending the previously granted Environmental Clearances, to reflect
the change in the name from respondent no. 5/Well Build to that of the
petitioner as the project proponent. It was hence observed that the project
proponent is required to submit a separate application in the prescribed
format through the portal for such amendment. It is submitted that the
petitioner, hence, was not considered as the project proponent, as the
Committee noted that the proposal could only be considered once the
necessary change in proprietorship was duly processed and approved by
SEIAA. It is hence submitted that the petitioner had not obtained the
necessary Environmental Clearance for carrying out the work beyond the
sanctioned construction limits under the 2017 EC.
iv. The petitioner has constructed Wing-D/Tower D in contravention
of the 2017 EC and without obtaining fresh/revised Environmental
Clearance. It is submitted that this is clear from the perusal of the
sanctioned plan of 2017 which would show that the construction as
sanctioned was of an area of 14599.71 sq. mtrs. for Wing D, which was
confirmed by the Project Architect Mr. Dilip Kale by his letter dated 10
January 2025. It is hence submitted that for any construction beyond the
sanctioned limit, the petitioner was required to obtain fresh Environmental
Clearance. This contention is also supported by referring to the Minutes
of meeting of SEIAA held on 27 February 2025, which according to
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respondent no. 5/Wellbuild, shows that the petitioner has constructed a
total area of 16095.80 sq. mtrs. for Wing D, which according to Wellbuild
is beyond the construction area sanctioned under 2017 EC. It is thus
contended that the petitioner has knowingly and deliberately undertaken
construction beyond the sanctioned limits and in breach of 2017 EC.
Thus, the petitioner's contention that there is no construction beyond the
overall sanctioned limit cannot be accepted. Reliance is placed on the
decision of the Supreme Court in Vanashakti vs. Union of India 6 and in
Keystone Realtors Pvt. Ltd. vs. Anil V. Tharthare 7, to contend that the
Supreme Court has held that an application for fresh Environmental
Clearance would be required if the project is expanded beyond the
construction limits for which the prior Environmental Clearance was
obtained even if the expansion is within the upper limit prescribed. It is
hence submitted that the petitioner was required to apply for and obtain
fresh Environmental Clearance before constructing Wing 'D' beyond the
sanctioned limits. The petitioner was aware of such requirements and
accordingly had applied for a fresh Environmental Clearance. Hence,
Wing 'D' could not have been constructed without first obtaining fresh
Environmental Clearance. It is also submitted that the law would not
permit grant of Environmental Clearance ex-post facto. It is submitted
that for such reason, there is no scope for the petitioner to contend that
6 2025 SCC OnLine SC 1139
7 (2020) 2 SCC 66
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Wing 'D' is constructed as per the 2017 EC. In such circumstances, there
was no question of an Occupation Certificate or Part Occupation
Certificate being granted to Tower/Wing 'D', which according to
Wellbuild is illegal.
vi. It is next submitted that this is a clear case where the petitioner is a
wrongdoer, who ought not to be granted any reliefs having knowingly
constructed Wing 'D' without a fresh Environmental Clearance. The
petitioner, therefore, cannot take advantage of its own wrong. In
supporting this submission, reliance is placed on the decision of the
Supreme Court in the case of Municipal Committee Katra & Ors. vs.
Ashwani Kumar8.
vii. It is next submitted that there cannot be any misplaced sympathy
towards the flat purchasers of a construction which is illegal. In supporting
such contention, reliance is placed on the order passed by the Supreme
Court in Willingdon View Cooperative Housing Society vs. The
Municipal Commissioner, Brihanmumbai Municipal Corporation & Ors. 9.
viii. Thus, no relief under Article 226 of the Constitution of India,
which is an equitable relief, ought to be granted to the petitioner and the
petition needs to be dismissed.
8 Unreported judgment dated 9 May 2024 in Civil Appeal Nos. 14970-71 of 2017
9 Unreported order dated 1 August 2025 in Special Leave Petition (C) No. 20175 of 2025.
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39. Mr. Vishwanath Patil, learned counsel appearing for the Municipal
Corporation has supported the impugned order. He has placed reliance on a reply
affidavit of Shri Prashant Waghmare, City Engineer of the Municipal
Corporation, filed on behalf of the Municipal Corporation. It is submitted that
on 12 January 2016, MPCB issued Consent to Establish under Section 25 of
Water (Prevention and Control of Pollution) Act, 1971, under Section 21 of the
Air (Prevention & Control of Pollution) Act, 1981 and Municipal Solid Waste
(Management and Handling) Rules 2000 and E-waste (Management and
Handling) Rules 2011 in favour of Wellbuild for a total built up area of 56950.70
sq. mtrs. which was valid for a period upto commissioning of the unit or five years
i.e. upto 12/01/2021 whichever was earlier. It is submitted that the EC was
granted in favour of Wellbuild dated 13 October 2017, under which the total
project area (FSI + Non-FSI) was 72,032.18 sq. mtrs. Further, on 02 February
2022, MPCB renewal for Consent to Operate under Section 26 of Water
(Prevention and Control of Pollution) Act, 1971, under Section 21 of Air
(Prevention and Control of Pollution) Act and an authorization/renewal of
Authorization under Rule 6 of the Hazardous & Other Waste (Management &
Transboundry Movement) Rules 2016 was granted in favour of Wellbuild. It is
submitted that thereafter on 22 May 2023, the Municipal Commissioner passed
an order granting permission to the petitioner to shift the Drains/Nala. On such
backdrop, it is submitted that on 02 February 2024, a work order was also issued
in favour of the petitioner to carry out shifting of the Drain/Nala, which was not
fully complied with. It is thus submitted that under clause 11 of the work order
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dated 02 February 2024, it was provided that the petitioner needs to complete the
work of the shifting of the storm water drain (nala) within a period of one year
and that an Occupation Certificate would be issued by the Building Department
only if the certificate of completion of such drain/nala work was issued by the
Drainage Department. It is hence submitted that the Municipal Corporation had
accordingly approved the IOD on 26 December 2023, pursuant to which the
petitioner had made an application to the State Environment Assessment
Committee (for short, "SEAC") for grant of revised environment clearance
certificate, which is pending consideration of the SEAC and on such application, a
revised environment clearance certificate is so far not issued to the petitioner by
the SEAC.
40. Mr. Patil has also submitted that the Municipal Corporation received
multiple complaints from social workers and NGOs, which were inter alia to the
effect that the petitioner had failed to provide amenities as promised to the
residents of Rajgruhi Residency. It is submitted that in pursuance thereto on 06
December 2024 a notice was issued by the Executive Engineer of Municipal
Corporation to the licensed Architect of the Project, to the developer and to the
members of the cooperative society formed by the flat purchasers of Wings 'A' &
'B', informing them about the scheduled hearing to be held on 09 December
2024 before respondent no.2-City Engineer. Such hearing was held and
according to the City Engineer, it was revealed that the petitioner had failed to
complete the work of shifting of the drain/nala as per the Work Order dated 02
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February 2024, as also the petitioner had failed to produce Consent to Establish,
Consent to Operate and the Revised EC as per the sanctioned IOD dated 22
February 2023. Also, there was a deviation in the actual construction amounting
to a breach of the Environmental Certificate issued in the year 2017. It is
submitted that in pursuance of such hearing granted to all the stakeholders, an
order dated 10 December 2024 was passed ordering the petitioner to stop work.
Some of the relevant averments as made in the reply affidavit filed on behalf of
the Municipal Corporation are required to be noted which read thus:-
11) I say that pursuant the above mentioned complaints received by
the Respondent Corporation, on 06.12.2024 a notice was issued by the
Respondent Corporation to licensed Architect of the Project though hand
delivery and to the Developer, members of the society of Rajgruhi
Residency at S. No. 63/1/1+1/2+2, near Shantinagar Society, Kondhwa,
Tal. Haveli, Dist. Pune 411048, informing the them about scheduling of
hearing regarding the construction being carried out on land being Survey
no. 63/1/1+1/2+2A in village Kondhwa Budruk, Pune at 11:30 hrs. on
09.12.2024 before the Respondent No. 2.
12) I say that on 09.12.2024 hearing was duly conducted and it was
revealed that the Petitioner had failed to (1) complete the work of shifting
the nala pursuant the Work Order dated 02.02.2024, that the Petitioner
failed (2) to produce Consent to Establish, (3) Consent to Operate and
the (4) revised EC as per sanctioned IOD dated 22.02.2023 and that
there was deviation in actual construction from the Environmental
Certificate issued in 2017.
13) I say that pursuant hearing on 09.12.2014 before the Respondent
NO. 2, by order dated 09.12.2024, a stop work notice as issued by the
Respondent No. 2 to the Petitioner on the grounds mentioned therein."
41. Mr. Patil would next submit that after the impugned stop work notice
dated 10 December 2024 was issued, the petitioner addressed a letter dated 20
December 2024 informing the municipal corporation that on 19 November
2024, the MPCB issued a revalidation of 'Consent to Establish', for a total built-
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up area of 72,032.18 sq. meters and revalidated 'the Consent to Operate' for the
completed construction area, with built up area of 35,794.6 sq. metrs. Such
revalidated consent to establish with expansion was granted for a period from the
commissioning of the project on 12 January 2016, which was to be valid upto 30
June 2025. It is hence submitted that on such backdrop, it was clear that the
respondent/municipal corporation had granted EC in favour of Wellbuild dated
13 October 2017 and that as per the EC, the total project area (FSI + Non-FSI)
was 72,032.18 sq. mtrs. and thereafter the respondent/Municipal Corporation had
approved a revised Intimation of Disapproval (IOD) dated 26 December 2023
according to which the total project area was 84,131.86 sq. meters. The relevant
averments as made in the reply affidavit are also required to be noted which read
thus:-
"15) I state that the Respondent Corporation granted Environmental
Clearance (EC) in favor of Respondent No. 5 vide IEC/Samiti/5 dated
13.10.2017. As per the said EC, the total project area (FSI + Non-FSI)
was 72,032.18 sq. mt. Subsequently, the Respondent Corporation
approved a revised Intimation of Disapproval (IOD) dated 26.12.2023
sq. mt., according to which the total project area (FSI + Non-FSI) is
84,131.86 sq. mts The Petitioner has applied for a revised EC, which is
still pending consideration."
42. Mr. Patil has further submitted that the Architect of the project Mr. Dilip
Kale and Associates had issued a letter dated 13 January 2025 addressed to the
Municipal Commissioner thereby granting a "certification of area". The said
certificate recorded that according to the EC dated 13 October 2017 granted by
the Municipal Corporation, the total built up area (FSI + Non-FSI) of Wing 'D'
was 14,599.71 sq. meters, while the total built up area (FSI + Non-FSI) of the
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completed construction on the date of issuance of the said certificate of Wing 'D'
was 16,117.96 sq. meters. It is submitted that as per the said certificate, the
petitioner proceeded with the construction based on the revised IOD without
obtaining the requisite revised EC, making a reference to the EC Notification of
2006 dated 14 September 2006.
43. On the aforesaid submissions, it is prayed that the impugned stop work
notice does not deserve interference and the writ petition be dismissed.
Analysis and conclusion :-
44. We have heard learned counsel for the parties. With their assistance, we
have also perused the record. In the facts and circumstances of the case and more
particularly considering the submissions as advanced at the bar, the following
issues, which in our opinion, would go to the root of the matter arise for
consideration in the present proceedings:-
i. Considering the fact that the show cause notice dated 06
December 2024 was issued by the Executive Engineer whether the
Designated Officer / City Engineer had jurisdiction to pass the
impugned order dated 10 December 2024 under Section 267(1) of the
Maharashtra Municipal Corporation Act, 1949.
ii. Whether construction undertaken by the petitioner under the
Environmental Clearance (EC) dated 13 October, 2017 under which
construction plans were sanctioned could be considered to be illegal
merely for the reason that the petitioner had applied for a revised
Environmental Clearance (EC).
45. To answer the aforesaid questions, we do not intend to replicate the facts,
suffice it to observe that WellBuild/respondent no.5, on the backdrop of the
previous contractual relations with the petitioner, had admittedly entered into
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Articles of Agreements dated 19 August 2021 and 26 August 2021 with the
petitioner, under which the petitioner was authorized to execute the construction
work of Tower 'C' and Tower 'D'. It is also not in dispute that plans in regard to
Tower 'C' and 'D' were sanctioned by the Municipal Corporation on 13 October
2017 in respect of an area to be constructed as referred hereinabove namely
16516.14 and 14,599.71 sq. meters. It is also not in dispute that the parties acted
upon such Articles of Agreements in regard to the construction of Tower 'C' and
Tower 'D' to be constructed by the petitioner. Accordingly, it appears to be not in
dispute that construction of Tower 'D' is complete in all respects, which is a
building of 20 floors. It is also not in dispute that Tower 'D' is now at the stage
whereby the occupancy proposal as submitted by the petitioner to the Municipal
Corporation (Planning authority) is to be processed and occupancy certificate
would be required to be granted, so that the "flat purchasers" can be put in
possession of their respective tenements. It is quite clear that at such stage,
disputes and differences have arisen between Wellbuild and the petitioner, which
in our opinion, appear to be purely a monetary dispute i.e. relating to the revenue
being generated from the sale of tenements (Tower 'C' and 'D') by the petitioner,
on which the petitioner is claiming benefit under the terms and conditions of the
Articles of Agreement. It is in such context, both the parties resorted to
proceedings under Section 9 of the ACA, and as stated hereinabove, the petitioner
succeeded in its application filed under Section 9 of the ACA as also is the
beneficiary of the orders passed by the Civil Court against the Society formed by
the flat purchasers of Wing A and B. Further the orders passed against Wellbuild
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in the proceedings filed by the petitioner under Section 9 of the ACA were
confirmed in an appeal under Section 37 of the ACA. At the same time,
Wellbuild could not succeed in its Section 9 ACA proceedings.
46. Be that as it may, the questions which have fallen for determination of the
Court need to be addressed on such backdrop. The following discussion would
aid our conclusion on such issues.
47. The residential project 'Rajgruhi Residency' "as a whole", comprises of
construction of 4 towers - A, B, C and D. In regard to Towers 'A' and 'B', there is
no dispute whatsoever as the construction of these towers/wings stands completed
in respect of which an Occupancy Certificate has already been granted. It is also
not in dispute that the construction of Towers 'A' and 'B' was undertaken by the
petitioner in the capacity of being a "contractor" appointed by Wellbuild. The
dispute however has arisen between Wellbuild and the petitioner on the works
being undertaken for Towers 'C' and 'D' and more particularly under the Articles
of Agreement and the documents executed by Wellbuild in favour of the
petitioner. The dispute as seen is more focused in the context of Tower 'D' the
construction of which, according to the petitioner, stands completed.
48. Having noted the aforesaid factual position, it is seen from the record that
the petitioner had proceeded to execute the work in relation to Towers 'D' and
'C'. Admittedly, the construction work of Tower 'D' was taken up as the first leg
of such construction and as on date has attained completion. It is also not in
dispute that as per terms and conditions of the agreement inter se between the
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petitioner and Wellbuild , the petitioner has entered into agreements with third
party/flat purchasers, who are awaiting possession of their respective flats to be
handed over to them by the petitioner, after Occupation Certificate (O.C.) is
granted to Wing 'D'. It also appears to be not in dispute that the work of Wing
'C' which is taken as second leg has progressed only upto four floors i.e.
construction of 16 habitable floors is yet to be undertaken.
49. As noted hereinabove, it is at such juncture, disputes and differences have
arisen between the petitioner and Wellbuild, whereunder the parties are asserting
their respective rights on allegations which are certainly matters to be tested on
evidence to be led by the parties in appropriate proceedings. Such conclusions
based on the prima facie findings between the parties were subject matter of the
proceedings filed by both the sides invoking Section 9 of the ACA before a forum
no less than the learned District Judge, who passed orders on the Section 9
proceedings which were assailed in the appeals filed under Section 37 of the ACA
before this Court. The orders passed in the Section 9 proceedings as also in the
appeals clearly go to show that no substantive reliefs could be obtained by
Wellbuild against the petitioner insofar as the execution of the said project under
the Articles of Agreement in question was concerned.
50. It clearly appears to us, it is on such backdrop, Wellbuild having failed in
the proceedings initiated under the ACA, took a recourse to approach the
municipal machinery, that too in a very peculiar manner, gathering support from
persons who are totally alien to the project and/or the Articles of Agreement
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entered into between the petitioners and Wellbuild. On such action of the
Wellbuild taken up with the officials of the municipal corporation, a cryptic
notice dated 06 December 2024 was issued to the petitioner, which in our
opinion, possibly breaches all norms of legitimacy, as to on what issues the
petitioners needed to appear at the hearing, much less show cause or for what
purpose such urgent hearing is scheduled on 9 December 2024. No details
whatsoever were set out in such notice issued to the petitioner by the Executive
Engineer of the Building Development Division, Zone-II of the Municipal
Corporation. It is imperative to note the contents of this notice which is the
genesis of the impugned orders, which read thus:-
"[Official Translation of a xerox copy of a Letter typewritten in Marathi.]
[LOGO]
Office of the Executive Engineer.
Construction Development
Department,
Savarkar Bhavan, Pune Municipal
Corporation.
O. No. - Zone-2/7240.
To,
Shri. Anil Reddy on behalf of M/s. Atria Construction.
440/441, Nana Peth, PGI Building,
Pune - 411002.
Subject - Regarding construction work on the land bearing S.
No.63/1/1+1/2+2, situated at - Peth Kondhwa Budruk, Pune.
In connection with the construction work of Rajgruhi Residency
Project on the land bearing S. No. 63/1/1+1/2+2 located at - Peth
Kondhwa Budruk, Pune, hearing is scheduled in the Office of the City
Engineer (Office of the City Engineer, 1 st floor, Pune Municipal
Corporation, Shivaji Nagar, Pune-05) on Monday, the date 09.12.2024 at
11:30 a.m.
Therefore, you should remain present during the course of said
hearing together with the necessary documents.
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May this be known.
(Signature Illegible)
06/12
Executive Engineer
Construction Development
Department (Zone No. 2)
Pune Municipal Corporation"
(emphasis supplied)
51. Thus, the vagueness of the aforesaid notice itself raises a serious doubt
about the intention of the Executive Engineer, on the backdrop of what has been
referred hereinabove concerning the disputes between the parties. The said notice
does not in any manner set out as to on what aspects, in relation to the said
project, a hearing was summoned on 09 December 2024 at 11.30 a.m.
52. What has happened thereafter is quite appalling and in fact it would shock
our conscience. At such hearing, to the surprise of the petitioner, several persons
who are totally unconnected with the project and not even remotely connected
with the contract as entered between Wellbuild and the petitioner, attended the
hearing, which is clear from the roznama dated 09 December 2024 annexed to
the petition. On a query as to how such persons, including the intervenor - Mr.
Vikas Kuchekar, came to be involved, there is no justification whatsoever from the
Executive Engineer or the Municipal Corporation regarding the involvement of
such persons qua the project or even from Mr. Vikas Kuchekar who has
intervened in the present petition, we have passed a separate order rejecting his
intervention.
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53. Be that as it may, the hearing held on 9 December 2024 (for whatever
worth) was held not by the Executive Engineer who issued the notice dated 06
December 2024, but by the City Engineer and the Deputy Engineer, who
immediately on the next day i.e. on 10 December 2024 issued the impugned stop
work notice under Section 267(1) of the Maharashtra Municipal Corporation
Act, 1949 (for short, "MMC Act") read with Section 54 of the Maharashtra
Regional & Town Planning Act, 1966. In the peculiar facts, it is vital to extract
the impugned stop work notice, which reads thus:-
"(Translation of the Impugned Stop Work Notice, typewritten in Marathi)
Building Development Department,
Zone No. 2,
Pune Municipal Corporation,
Outward No. Zone-2/7327,
Date: 10.12.2024.
NOTICE
(Under Section 267(1) of the Maharashtra Municipal Corporation
Act and under Section 54 of the Maharashtra Regional and Town
Planning Act, 1966).
To,
1) M/s. Atria Construction, through Shri Anil Reddy,
440/441, Nana Peth, P.G.I. Building, Pune 411 002.
2) Shri Dilip Kale, Licensed Architect
1226, Subhash Nagar, Lane No.4,
Shukrawar Peth, Pune 411 030.
Whereas, a Building, a description whereof is given hereinbe-
low, is being constructed on the plot of land bearing Survey No.
63/1/1+1/2+2 at Peth Kondhva Budruk, Pune, by you or under
your supervision. As per the provisions made in the said Act, the
Commissioner of Municipal Corporation has conferred upon me
the powers under Section 267 of the Maharashtra Municipal
Corporation Act and under Section 54 of the Maharashtra Regional
and Town Planning Act, 1966. By this Notice, you are informed to
immediately stop the said construction work upon receipt of this
Notice. If you continue carrying out the said construction work or if
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the said construction work is continued further under your
supervision, then, in exercise of the powers conferred upon me as
per the provisions of the aforesaid Act and as mentioned
hereinabove, the person carrying out the said work will be removed
therefrom with the help of Police Officers and the expenditure to be
incurred therefor will be recovered from you.
You may please note that, as per the provisions of Section 433
(c) of the Maharashtra Municipal Corporation Act, "Save as
otherwise provided in this Act, any notice issued, order passed or
direction issued by the Designated Officer, shall not be questioned
in any suit or other legal proceedings.
The Original lay-out in respect of the 'Rajgrushi Residency' on
the plot of land bearing Survey No. 63/1/1+1/2+2 at Peth -
Kondhva Bu-druk, Pune, had earlier been sanctioned vide San. Pa.
No. D.P.O./ 4323/ F/KB/ 62, dated 16.08.2002. Thereafter, the
revised lay-outs had been sanctioned from time to time and the
Building Plans had been approved accordingly. The upto date
revised lay-outs and the Buildings Plans have been approved by the
San. Pa. No. CC/2042/21, dated 13.10.2021. Similarly, Part
Occupancy Certificates have been issued to the buildings under the
said project from time to time.
The First Environment No Objection Certificate (EC) to the
said project had been received from SEIAA on the date 10.12.2015
and as regards the second (Environment No Objection Certificate),
in view of the Government Resolution No. TPS-1816/M.
No.443/16/D.S./Pune and Konkan Divisions/U.D.-13, dated
28.06.2017, the Environment Cell, Pune Municipal Corporation
examined the proposed project of 'Rajgruhi Residency, on the plot
of land bearing Survey No. 63/1/1+1/2+2 at Peth -Kondhva
Budruk, Pune and made recommendation to the Environment
Committee under Category-III and in the meeting of the
Environment Committee, held on the date 04.10.2017,
recommendations for the said project were made subject to
following the conditions of environment.
By the Office Order bearing Outward No. MC/ UDCPR- 20/
SEC/ 3.1.1(ii)/443, dated 22.05.2023, passed by the Municipal
Commissioner, approval has been granted for shifting of the Nullah.
Similarly, the Sewage Maintenance and Repairs Department has
granted permission for carrying out development of Nullah subject
to the terms and conditions. However, till today, no development in
respect of the nullah has been carried out at the site. Moreover,
frequent complaints are being received from the citizens in this
regard.
On the date 14.01.2024, the Maharashtra Pollution Control
Board has granted 'Refusal of Consent to Establish' under section
27 of the Water (Prevention & Control of Pollution) Act, 1974 and
Section 21(4) of the Air (Prevention & Control of Pollution) Act,
1981. Moreover, the 'Consent to Operate' mandatory for each
project has not been obtained. This issue is serious and the
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conditions of Environment No-Objection Certificate have been
violated. Similarly, the Environment No-Objection Certificate (EC)
as per the Proposed Intimation of Disapproval (IOD) has not yet
been submitted. Moreover, discrepancy is found between the
Environment No-Objection Certificate (EC) received on the date
04.10.2017 for your Project and actual construction work going on
at the site.
You had been asked to submit within the period of 8 days, your
explanation in writing as to why action should not be taken against
you for violating the conditions of Environment No-Objection
Certificate and in pursuance thereof, you have submitted
explanation.
However, as the said explanation does not contain satisfactory
reply and as the aforesaid issues are serious, the City Engineer, Pune
M.N.C. has granted approval on the date 10.12.2024 to issue Stop-
Work Notice under section 267(1) of the Maharashtra Municipal
Corporation Act, 1949 and under section 54 of the Maharashtra
Regional and Town Planning Act, 1966 to stop the work that is
being carried out by you on the property bearing
S.No.63/1/1+1/2+2 situated at Peth Kondhva Bu., Pune.
Therefore, you are directed to immediately stop the work that is
being carried out by you on the property bearing
S.No.63/1/1+1/2+2 situated at Kondhva Bu., Pune.
Current status of the construction work at site:
Wing 'C' - R.C.C. work of Stilt floor + Upper Park floor + Lower
Park floor 01 + Lower Park floor 02 + Lower Park floor 03+ upto
4th floor, has been completed.
Wing 'D'- Construction work of Stilt floor + Upper Park floor +
Lower Park floor 01 + Lower Park floor 02 + Lower Park floor 03 +
upto 20th floor, has been completed.
May this be known,
(Signature ) (Signature)
Designated Officer and
Junior/Branch Engineer Designated Officer and Deputy
Building Development Department Engineer Building Development
Zone No.2, Department Zone No.2,
Pune Municipal Corporation. Pune Municipal Corporation."
(emphasis supplied)
54. It is thus clearly seen that the construction work of the 'D' Wing as set out
in the notice, is clearly accepted to have been completed. Insofar as Wing 'C' is
concerned, the construction upto 4 floors is stated to have been completed, which
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includes R.C.C. work of stilt floor + upper park floor + lower park floor 01 +
lower park floor 02 + lower park floor 03 + upto 4 th floor, the construction of
which is supposed to be upto 20 floors.
55. As urged on behalf of the petitioner, the challenge to the impugned stop
work notice needs to be considered on two basic legal issues. Firstly, that the
petitioner in the show cause notice was never informed that the petitioner would
be called upon to give explanation on any issues, the consequence of which is set
out in the impugned stop work notice for the first time. As there was no prior
show cause notice issued to the petitioner as the law would mandate, hence, as
rightly urged by the petitioner, without the petitioner being granted an
opportunity of being called upon to show cause and defending any such issues,
which forms the subject matter of the reasons as set out in the impugned stop
work notice, the impugned stop work notice cannot stand the test of law. We find
much substance in this contention as urged by the petitioner. This for the reason
that it is clear from the purported notice dated 06 December 2024 that it does not
set out any details as to on what specific issues a hearing was scheduled on 09
December 2024. The petitioner is, therefore, taken by surprise when the
impugned order records all such issues which were never put for any specific
explanation by the petitioner. It is the settled principle of law that any order to be
passed by a statutory authority which would entail civil consequence whereby
civil rights of a party are likely to be breached by any order passed by such
authority, such order cannot be passed, unless the procedure known to law i.e. of
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issuance of an appropriate show cause notice with adequate grounds being made
out, granting an opportunity to reply to such show cause notice and a hearing
being granted to the affected party, on such show cause notice and thereafter a
reasoned order to be passed, is a sine qua non / the necessary mandate of law.
This on the ground that the soul of natural justice is "fair play in action" which is
held to be important in both the quasi judicial or administrative proceedings. The
rule of natural justice is calculated to secure justice or in other words, to prevent
miscarriage of justice. Hence, it is applicable in any quasi judicial inquiry, this
more particularly when civil rights of the parties are likely to be breached. In
Maneka Gandhi vs. Union of India 10 the Supreme Court held that the law must
now be taken to be well settled that even in an administrative proceeding, which
involves civil consequences, the doctrine of natural justice must be held to be
applicable. Thus, any order/action taken by a quasi judicial authority is required
to satisfy the test of fairness, transparency and non-discrimination. When orders
to be passed by such authorities who enjoy enormous statutory powers, the
authorities are required to be more circumspect in discharging these official
obligations in exercising such powers, so that the orders, which are passed, are not
in any manner in breach of the principles of natural justice, arbitrary, biased
and/or vitiated by non application of mind or are tainted by extraneous
considerations.
56. This apart, there is much substance in the petitioner's contention that the
impugned order has been passed on extraneous considerations, which is clear
10 1978 AIR SC 597
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from the fact that it is not the officer of the municipal corporation namely the
'Executive Engineer', who issued the show cause notice to the petitioner, but the
City Engineer who heard the petitioner and the other parties. Further quite
surprisingly several persons who were unconnected with the project and who
appear to be supporting the cause of Wellbuild, attended the hearing, as if it was a
public hearing. The impugned order appears to have been thus passed on such
extra legal considerations and with the interference caused by third parties, which
is clearly seen from the appearance of these several unconnected persons as
recorded in the roznama. This more significantly considering the presence of the
intervenor Mr. Vikas Kuchekar.
57. Thus, in our clear opinion, such illegality in passing the impugned stop
work notice, which is quite gross, appears to have been committed in the absence
of the petitioner being put to a clear notice of the issues, with which, the
petitioner would be required to be confronted or called upon to answer. Notably,
no copies of any complaints received by the Executive Engineer from any person
on the basis of which such show cause notice dated 06 December 2024 (supra)
were supplied to the petitioner, on the basis of which such drastic order was
passed to stop work of the entire project. Such hearing being attended by totally
unconnected persons, itself raises a serious doubt on the fairness of the officials of
the municipal corporation in the proceedings, who passed the impugned order/
notice. In our clear opinion, this fact would demonstrate a gross breach of the
principles of natural justice at the hands of the Executive Engineer, City and
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Deputy Engineer in issuing the impugned stop work notice and on these basic
non-compliances of the mandatory requirement of law, the impugned show cause
notice would be required to be quashed and set aside.
58. We also cannot overlook the timing at which, the impugned stop work
notice is issued, that is at the time when the proceedings filed by Wellbuild
against the petitioner under the Arbitration and Conciliation Act could not
succeed. This most importantly, when on the municipal corporation's own
showing the construction of Tower/Wing 'D' is complete and is now required to
be proceeded for grant of an Occupation Certificate. It is thus clear that what
could not be achieved directly by Wellbuild in a manner known to law i.e. in the
legal proceedings, Wellbuild has sought to achieve the same, by utilising the
municipal machinery, and that too by garnering extra legal interference, the
municipal machinery being exploited to its advantage, in getting the impugned
stop work notice issued. Admittedly, Wellbuild could not succeed in its attempts
to secure benefits which otherwise Wellbuild could not secure in the legal
proceedings, having failed in the Section 9 proceedings as also in the Section 37
proceedings under the ACA. This is quite apparent from the facts as set out
hereinabove, which are our considered observations on these issues which touch
the impugned stop work notice.
59. On such backdrop, we examine the first question (supra), which has fallen
for consideration, which, in our opinion, touches the basic tenets on the settled
principles of administrative law, namely, that a person who hears is required to
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pass an order. It is clear that the show cause notice was issued by the Executive
Engineer, however, a hearing on the same was held by the City Engineer and the
impugned order/ notice to stop work has been issued by the Deputy Engineer and
the Junior Engineer. Such procedure is wholly unknown to law and can never be
recognized to have any legal sanctity. It is well settled that a person who has not
heard the aggrieved party, has no jurisdiction to pass an order. In the present case,
the impugned stop work notice is a reasoned order, there could not have been any
delegation by the Executive Engineer for such order to be passed by his
subordinates, namely, Deputy Engineer and Junior Engineer. In this context, we
may refer to the decision of the Supreme Court of India in Union of India & Ors.
vs. Shiv Raj & Ors.11 wherein the context of the obligation of a person who hears a
party, would be the only person who can decide, which has been held to be a vital
requirement of the principles of natural justice. Following observations as made
by the Supreme Court are required to be noted, which read thus:
"17. This Court in Gullapalli Nageswara Rao(supra), held:
"Personal hearing enables the authority concerned to watch the
demeanour of the witnesses and clear up his doubts during the
course of the arguments, and the party appearing to persuade the
authority by reasoned argument to accept his point of view. If one
person hears and another decides, then personal hearing becomes an
empty formality. We therefore hold that the said procedure followed
in this case also offends another basic principle of judicial
procedure."
18. This Court in Rashid Javed vs. State of UP, AIR 2010 SC 2275
following the judgment in Gullapalli(supra), supra held:
"51. .... a person who hears must decide and that divided
responsibility is destructive of the concept of hearing is too
fundamental a proposition to be doubted."
11 (2014) 6 Supreme Court Cases 564
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19. A similar view has been reiterated by this Court in Automotive
Tyre Manufacturers Association vs. Designated Authority & Ors. , (2011)
2 SCC 258, wherein this Court dealt with a case wherein the Designated
Authority (DA) under the relevant Statute passed the final order on the
material collected by his predecessor in office who had also accorded the
hearing to the parties concerned. This court held that the order stood
vitiated as it offended the basic principles of natural justice.
20. In view of the above, the law on the issue can be summarised to
the effect that the very person/officer, who accords the hearing to the
objector must also submit the report/ take decision on the objection and
in case his successor decides the case without giving a fresh hearing, the
order would stand vitiated having been passed in violation of the
principles of natural justice."
60. We may also usefully refer to the decision of the learned Single Judge of
this Court in Golden Chariot Airport, Mumbai vs. Airports Authority of India
International Airports Division Chhatrapati Shivaji International Airport,
Mumbai & Another12 wherein in similar context the following observations were
made by the Court:-
"17. It is well settled that when a statute calls upon the Authority or
officer to form an opinion and take a decision he must apply his own
mind to the situation, consider its various aspects himself and give a
decision himself. The law does not tolerate an officer who is entrusted
with the responsibility of taking- a decision referring the case to another
officer and then verbatim adopting the latter's reasonings and views
without any effort on his own part. A consideration of the case by officer
is the live link between the facts and the decision. Such an officer is not
entitled to refer the matter to any one else for receiving "brief" complete
analysis and findings and then merely deliver what he receives as his own
order.
18. At this juncture, it may be noted that many arguments were
made by the learned counsels appearing for the parties on the basis of the
roznama and the pleadings before the Estate Officer Kaushal. The issue
agitated by the parties was whether Kaushal had properly closed the
matter for orders on 23-12-2005 after hearing it on earlier dates, and
whether the said Estate Officer has wrongly rejected the permission
sought by the petitioners for examining the Officer of the respondent
No. 1. Having held that the order is vitiated and void for the reasons
stated earlier, it is not necessary to deal with this aspect of the matter.
12 2009(3) Mh.L.J. 684
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19. ........................ Having regard to the observations above, it
is clear that the Supreme Court was of the view that the authority must
himself reach a conclusion which he regards as just and must record the
ultimate mental process leading from the dispute to its solution. The
judgment must be supported by reasons that suggest themselves to the
Judge. It is clearly observed that a mere order deciding the matter in
dispute not supported by reasons is no judgment at all. It is obvious from
these observations that what is contemplated is that the Judge or the
authority empowered to decide, must record the ultimate mental process
leading from the dispute to its solution. The reference is obviously to the
mental process of the Judge himself and not the mental process of
another. It must follow that whether the Judge or the authority has not
applied his own mind, but has adopted the reasoning applied by another
and merely acted as rubber stamp, as here, the order passed by the Judge
must be construed to be an order not supported by any reasons at all. The
application of the ratio to the facts of the present case clearly lead to the
conclusion that the impugned order is not a valid order and is void and
unsustainable.
(emphasis supplied)
61. Although even on the aforesaid basic legal consideration the impugned
order deserves to be set aside, we now proceed to consider the second issue, which
is on merits to consider whether the reasoning as set out in the impugned order in
any manner is sustainable. The following are the primary three considerations on
which the stop work notice is issued:-
i. The municipal corporation had issued an order dated 22
May 2023 permitting the shifting of the existing drain/nala on
such terms and conditions, however, the said nala has not been so
far developed and in this regard, complaints are received from the
citizens from time to time.
ii. Secondly, on 14 January 2024, the Maharashtra Pollution
Control Board has granted 'Refusal of consent to establish' under
Section 27 of the Water (Prevention & Control of Pollution) Act,
1974 and under Section 21(4) of the Air (Prevention & Control of
Pollution) Act, 1981, however, in respect of each and every
construction, consent to operate have not been obtained. This
would amount to breach of Environmental Clearance.
iii. Thirdly, as per the Intimation of Disapproval (IOD), a
revised Environmental Clearance (EC) so far has not been
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submitted and the work which is actually undertaken is not in
consonance with the Environmental Clearance granted to the
project dated 4 October 2017.
62. The impugned stop work notice records that petitioner was called upon to
provide explanation within 8 days and the petitioner has submitted explanation,
but such explanation is not satisfactory and therefore, it is necessary that the
construction being undertaken on the said land needs to be stopped. For ordering
the stoppage of the construction, approval has been granted by the Junior
Engineer and the Deputy Engineer on 10 December, 2024, as per the provisions
of Section 267(1) of the Maharashtra Municipal Corporation Act, 1949 and
under Section 54 of the Maharashtra Regional and Town Planning Act, 1966.
63. Considering the reasons which are set out in the impugned stop work
notice, we are in complete agreement with the contentions as urged on behalf of
the petitioner on two basic counts - firstly, although show cause notice dated 6
December, 2024 was issued to the petitioner, it did not point out any of the
deficiencies. Further the construction of the drain/nala was already underway and
the same is being completed as pointed out by the petitioner to which there
appears to be no dispute.
64. The reasons in regard to Water and Air Act permissions being not available
with the petitioner, also does not appear to be a correct observation in the
impugned stop work notice, for the reason that the petitioner had submitted a
resolution of the Maharashtra Pollution Control Board dated 14 November 2024
granting revalidation of 'consent to establish' and also 'consent to operate'. Thus,
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such reason as set out in the impugned stop work notice is patently without
application of mind and oblivious of the correct position on record.
65. As regards the Environmental Clearance dated 13 October 2017, granted
to the project is concerned, it clearly provides for total construction area of
72032.18 sq. meters. It is the petitioner's case, to which we do not find any
effective counter or opposition, that for construction of the 'D' wing
Environmental Clearance was received / granted which provides for 4P +
Amenity +20 floors under which the construction is undertaken and in regard to
which the completion certificate and occupation certificate is being applied for by
the petitioner, is of an area of 68132 sq.meters. The construction of 'D' wing is
completed upto 20 floors, and in fact there is a reduction in height. There is no
explanation from the municipal corporation or Respondent No.5 on such vital
contentions as urged on behalf of the petitioner. This more particularly when such
issue was sought to be raised only after the entire construction upto 20 floors, as
undertaken by the petitioner, is completed. It also appears that the sanctioned
plan dated 13 October 2017 provides for 80 flats and accordingly, 80 flats are
constructed and hence, the case of any excess construction of flats as alleged by
Wellbuild and denied by the petitioner, finds no support.
66. We may also observe that this is not the case that the entire project which
includes wings/towers A, B, C, D has no Environmental Clearance, inasmuch as
Environmental Clearance was granted to the entire project on 13 October 2017. It
is not the case of the respondents that after such clearance was granted, a separate
and/or independent environment clearance was required to be granted to each
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and every wing / tower even in respect of a minor modification in the area of each
of the towers, it was to be undertaken within the permissible limits under such
Environmental Clearance granted to the entire project. Thus, merely for the
reason that on account of some minor modifications, the petitioner had applied
for revised clearance cannot bring about a situation that the project of which
Wing 'D' is a part, has no Environmental Clearance. For such reason also, the
impugned stop work order, when it observes that there is no Environmental
Clearance, for the petitioner to undertake construction for Wing "D" and "C",
appears to be wholly untenable. Considering the very recent position in law in the
majority decision of the Supreme Court in Confederation of Real Estate
Developers of India (CREDAI) V/s. Vanashkti and Anr. 13, the petitioners
application for modification of the Environment Clearance post facto cannot be
said to be not maintainable.
67. For the aforesaid reasons, we are not inclined to accept the contentions as
urged on behalf of the Municipal Corporation or Wellbuild, as noted
hereinabove. In our opinion, if in the course of execution of the project, some
incidental changes/ modifications are required to be made which would not be
contrary to the construction as permissible under the Environmental Clearance,
the same would not render the construction to be contrary to the Environmental
Clearance already granted. Thus, considering such changes, if a revised
Environmental Clearance is applied for in a revised application, the same needs to
be considered as per rules.
13 2025 SCC Online SC 2474
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68. In such context, insofar as Wing 'D' is concerned, it is clearly seen that the
proposed height of the building as granted under the provisions of the
Environmental Clearance was 68.45 meters, the configuration 4P +Amenity +
20FL and the same height and configuration is maintained in the revised
application. So far as the revised construction of the Wing C is concerned, there
is no variation whatsoever in the basic parameters of the area of construction or
the height of the construction. In any event, in the 187 th meeting of the SEAC
held on 29 December 2023, the petitioner's application for revised
Environmental Clearance was to the effect that the petitioner would provide
electric charging facility by providing charging points at suitable places as per
Maharashtra Electric Vehicle Policy, 2021 and the petitioner was to ensure that
the water proposed to be used for construction phase should not be drinking
water, and that recycled water or tanker water be used for proposed construction.
These are not the conditions incapable of being performed so that the City
Officer can come to a conclusion that a stop work notice is required to be issued
to the project.
69. On the requirement of the Environmental Clearance, in our opinion, Mr.
Kamath's reliance on the decision of the Supreme Court in Vanashakti vs. Union
of India (supra) is not well founded for two fold reasons. Firstly, the present case is
not a case wherein it can be said that there was no Environmental Clearance. In
fact Environmental Clearance was granted on 13 October 2017 and construction
was accordingly undertaken. Hence, it is not the case that the petitioner had
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sought any wholesale ex post facto clearance and/or that the petitioner has
undertaken the construction without obtaining Environmental Clearance. In
Vanashakti vs. Union of India (supra), the Supreme Court was considering the
challenge to the judgment of the Madras High Court which quashed the 2021
Office Memorandum which pertained to Standard Operating Procedure (SOP)
for identification and handling of violation cases under the 2006 EIA
Notification and another Office Memorandum dated 19 February 2021. It is in
such context the Supreme Court held that it was not permissible for the project
proponents to seek ex post facto clearance retrospectively being alien to the
environmental jurisprudence and the EIA notification. However, considering the
recent decision of the Supreme Court in Confederation of Real Estate Developers
of India (CREDAI) V/s. Vanashakti and Anr. (supra), the said decision of the
Supreme Court in Vanashakti (supra) has been recalled. This being the legal
position, the judgment in Vanashakti (supra) would not assist Wellbuild.
70. This apart, one of the most glaring aspects of the present matter is the
conduct, not only of the officials who have issued the impugned stop work notice,
but also of respondent No.5 to garner extra legal interference of several persons
who have attended the hearing fixed by the Executive Engineer on 9 December
2024. Such persons had no official concern whatsoever in regard to anything to
do between the petitioner and/or Wellbuild/respondent No.5-the owners who
handed over the project to be executed by the petitioner. The official machinery
of the respondents was totally misused by Wellbuild along with such persons,
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more particularly one Mr. Vikas Shravan Kuchekar, who had attended the hearing
and who also filed an Intervention Application. Rejecting such Intervention
Application, we have passed a detailed order, considering the statements of the
intervenor as made before the Court. From the perusal of our order on the
Intervention Application, things get abundantly clear that the intervenor is no
less than a busybody who could not justify his presence in the proceedings before
the City Engineer. He also could not justify from where he obtained the intricate
information which is completely internal to the project and more particularly in
regard to the relation between the petitioner and respondent No.5. It appears that
the intervenor's role is purely on extraneous considerations, who could not have
been involved except to help those who had an axe to grind against the petitioner.
He appears to have been introduced to obtain an unfair advantage by adopting
such pressurizing tactics before the municipal officers, by utilizing the resourceful
nature of intervenor. Similar comments can be made against others, however, they
are not before the Court. The orders passed by this Court in the intervenor's
application, in fact, would speak volumes about the high-handed and arbitrary
manner of the Municipal officials in issuing the impugned stop work notice,
thereby bringing the petitioner's project which is at a stage of grant of occupation
certificate of Wing "D" as also the construction of Tower "C" to a grinding halt.
71. Such conduct of the municipal officers has also deprived the legitimate flat
purchasers of early occupation of their flats, having purchased the flats in "D"
wing. This more particularly when the construction of "D" Wing' is completed
long back and awaits an occupation certificate. It has also delayed the construction
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of "C" wing in respect of which the plans are also sanctioned. In these
circumstances, in our opinion, this is a clear case where, Wellbuild/ respondent
No.5 by misuse of the official machinery of the Municipal Corporation has
caused or obtained the impugned order of stopping of work, in respect of the
project. Such order otherwise would not have even been passed.
72. We may observe that this is also a case, where the impugned decision has
been taken in extreme haste, inasmuch as a totally cryptic and unreasoned show
cause notice dated 6 December 2024 was issued to the petitioner calling upon the
petitioner to remain present, without a whisper of details as to why such hearing
was called for, what were the deficiencies, if any, as also no material whatsoever of
any complaints received by the Municipal Corporation was provided to the
petitioner alongwith the notice dated 6 December 2024. The hearing on the said
notice was held on 9 December 2024, and immediately on the next date i.e. on 10
December 2024 the impugned stop work order has been passed. This apart, as
noted above, several persons unconnected with the project who are social workers
attended the hearing. Their presence in the said hearing was totally unjustified
and unwarranted. Also the impugned stop work order clearly appears to have
been passed at their behest. In such context, the settled principle of law is that if a
decision is taken by a statutory authority at the behest or suggestion of a person
who has no statutory role to play, the same is required to be held to be ultra vires.
This is clear from the decision of the Supreme Court in Bahadursinh Lakhubhai
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Gohil vs Jagdishbhai M. Kamalia And Ors. 14 wherein the Supreme Court has
observed thus:
"25. In S. P. Kapoor (Dr) V. State of H.P. 15 this Court held that when
a thing is done in a post-haste manner, mala fide would be presumed,
stating:(SCC p.739, para 33)
"33. .....The post-haste manner in which these things have been done
on 3-11-1979 suggests that some higher-up was interested in pushing
through the matter hastily when the Regular Secretary, Health and
Family Welfare was on leave."
26. It is also well settled that if any decision is taken by a statutory
authority at the behest or on the suggestion of a person who has no
statutory role to play, the same would be ultra vires. (See Commr. Of
Police V. Gordhandas Bhanji16 and Mohinder Singh Gill V. Chief
Election Commr.17 )".
73. Now coming to the decisions which are cited by Mr. Godbole, learned
Senior counsel for the petitioner supporting the proposition that the impugned
decision of the Deputy Engineer and City Engineer, to order stop work of the
project, is arbitrary and high-handed by relying on the decisions in Dr. S. P.
Kapoor Vs. State of Himachal Pradesh & Ors. 18; Zenit Mataplast Pvt. Ltd. Vs.
State of Maharashtra & Ors. 19; Fuljit Kaur Vs. State of Punjab 20; Rajiv Kumar vs.
State of Uttar Pradesh & Anr.21. There cannot be any dispute on the principle of
law as laid down in these decisions. We do not intend to burden the judgment by
discussing these decisions, suffice it to observe that in the present case, the action
14 2004 (2) SCC 65
15 (1981)4 SCC 716
16 AIR 1952 SC 16
17 (1978)1 SCC 405
18 (1981)4 SCC 716
19 (2009)10 SCC 388
20 (2010)11 SCC 455
21 (2017)8 SCC 791
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on the part of the concerned officials who have issued the impugned stop work
notice, certainly in no manner satisfies the test of law and accordingly, we had
held the impugned stop work notice to be grossly arbitrary, high-handed and
illegal.
74. We may observe that this is a clear case where Wellbuild appears to have
clearly exceeded its contractual position with the petitioner, as discussed in detail
hereinabove. However, what surprises us is the conduct of the municipal officials
as to how without verifying the records, without any site inspection to identify
any breaches of any building permissions or any other permissions and above all
without issuance of an appropriate show cause notice merely on purported
complaints of busybodies and / or certain unknown persons could have resorted
to exercise powers affecting and prejudicing the civil rights of the petitioner. This
more particularly knowing well that the construction of Wing 'D' was complete
and would be required to be granted an occupation certificate. The municipal
officials could not have acted so casually. They have acted so as their intentions
appear to have been completely taken over by extraneous considerations, by
virtue of which they have decided to discard all norms of legitimacy, legality,
fairness, transparency and non discrimination in their actions as public officials.
The Municipal Commissioner in the facts of the present case needs to investigate
the role of these officials and the object and motive of these officials in taking the
impugned action, and place an action taken report on the record of this Court
within a period of six weeks. After such report is received, the Registrar Judicial
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shall list the matter after six weeks for recording compliance. This more
importantly keeping in mind the basic principle of legitimate expectations of the
citizens from public officials. A stitch in time save nine.
75. In the aforesaid circumstances, we have no manner of doubt that the
petition needs to succeed. It is accordingly allowed in terms of prayer clause (b)
which reads thus:
"(B) This Hon'ble Court be pleased to issue a Writ of
Mandamus or any other writ, order or direction in the nature of
mandamus to the Respondent Nos.01 to 04 and declare that the
issuance of the Impugned Stop Work Notice dated 10 th December
2024 issued by the Respondent Nos.03 & 04 and
recommended/approved by Respondent No.02 under section
267(1) of the Maharashtra Municipal Corporation Act, 1949 r/w.
Section 54 of the Maharashtra Regional & Town Planning
Act,1966 is perverse, illegal, improper, invalid, arbitrary, malafide
and the same deserves to be set aside."
76. Before parting, as a Constitutional Court we would be failing in our duty, if
we do not deprecate the arbitrary and high handed action on the part of the
concerned officials of the Pune Municipal Corporation who were
instrumental/involved in taking the impugned decision. In our clear opinion,
despite judicial orders, including the orders passed by the Division Bench of this
Court (supra) in the Section 37 ACA proceedings, the petitioner was made to
suffer not only on account of delay in completion of the project but also suffer the
pain and agony of the present litigation. Thus, the petition cannot be simplicitor
allowed, it would be required to be allowed by ordering payment of exemplary
costs. If we do not pass an order as to costs, the message would be that despite
such arbitrary and high-handed conduct of the municipal officials which is purely
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at the behest of private parties, these officials can comfortably get away, so as to
indulge in similar high-handed practices in future, in regard to other parties.
When under the law, public officials are conferred such drastic powers, there is an
onerous duty and responsibility cast on them to exercise such powers only in
accordance with law and not on extraneous considerations. The actions of the
public authorities can never be arbitrary, malafide and high-handed. In this view
of the matter, we direct that the concerned officials including the City Engineer
who are directly involved in passing the impugned order/stop work notice shall,
jointly and severally, pay cost of Rs.5,00,000/- (Rupees Five Lakhs only) to the
petitioner. Such cost be paid to the petitioner within two weeks from today. If the
same is not paid, the Municipal Commissioner shall recover the same in
accordance with law.
77. Further, all the concerned illegalities have taken place at the behest of
respondent No.5-Wellbuild who itself is a developer. Considering our
observations, respondent No.5-Wellbuild has misused the official machinery of
the municipal corporation in the manner which has shocked our conscience
although it had pure contractual relations with the petitioner. It has nullified the
orders passed by the Courts as noted by us hereinabove. Accordingly, respondent
No.5/Wellbuild also has become liable to be ordered to pay exemplary cost to the
petitioner. It is accordingly directed that respondent No.5-Wellbuild shall pay cost
of Rs.25,00,000/- (Rupees Twenty Five lakhs only) to the petitioner within two
weeks from today.
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78. Rule is accordingly made absolute in the aforesaid terms.
WRIT PETITION NO. 10414 OF 2025
79. Insofar as the companion petition is concerned, as this Court has allowed
the first petition, we are in complete agreement with the contention as urged on
behalf of the petitioners that these petitioners are unwarrantedly suffering private
disputes between the petitioner and respondent No.5/Wellbuild in the earlier
petition.
80. For the reasons which we have set out in our judgment on the first petition
(Writ Petition No.1022 of 2025), we are inclined to allow this petition in the
following terms:
ORDER
i. Respondent Nos.01 to 04 are directed to issue
Completion/Occupancy Certificate in respect of said Tower viz.
Rajgruhi Residency Tower 'D' on the application/proposal in that
regard made by M/s. Atria Constructions in accordance with law.
ii. Rule is made absolute accordingly. No costs.
81. At this stage, Mr. Kamat, learned senior counsel appearing for respondent
no. 5-Wellbuild seeks stay of both these orders. In the facts and circumstances of
the case, request for stay is rejected.
(ARIF S. DOCTOR, J.) (G. S. KULKARNI , J.)
21 November 2025
