Bombay High Court
M/S. Satra Plaza Premises Co-Op Soc. Ltd vs Navi Mumbai Municipal Corporation And ... on 4 May, 2023
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2023:BHC-AS:13678-DB
1 wp [email protected]
Prajakta Vartak
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
IN ITS EXTRAORDINARY CIVIL JURISDICTION
AND
IN ITS JURISDICTION UNDER ART.226 OF THE
CONSTITUTION OF INDIA
WRIT PETITION NO. 1374 OF 2017
M/s.Satra Plaza Premises Co-op.Soc.Ltd., A Co-
operative Society Duly incorporated under the
provisions of Maharashtra Co-operative Societies
Act,1960, having its registered office at "Satra Plaza"
Plots Nos.19 & 20, Sector - 19-D, Vashi, Navi
Mumbai-400 703. .. Petitioner
Vs.
1. Navi Mumbai Municipal Corporation, duly
constituted under Section 5 of Maharashtra Provincial
Municipal Corporation Act,1949, having their Office
at Plot No.1 Near Killegaothan, Palm Beach Junction,
Section - 15A, Belapur, Navi Mumbai.
2. Municipal Commissioner, Navi Mumbai Municipal
Corporation, having his Office at Plot No.1 Near
Killegaothan, Palm Beach Junction, Sector - 15A,
Belapur, Navi Mumbai.
3. M/s.Satra Properties (India)Ltd., a company duly
incorporated under the provisions of the Companies
Act,1956, having their registered office at Dev Plaza,
2nd Floor, Opp.Andheri Fire Brigade, S. V. Road,
Andheri (W), Mumbai-400058.
4. State of Maharashtra, Mantralaya, Mumbai -
400032.
Page 1 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
2 wp [email protected]
5. City and Industrial Development Corporation of
Maharashtra Ltd., A govt. Company duly
incorporated under provisions of the Companies
Act,1956 having its Administrative Office at CIDCO
Bhavan, CBD-Belapur, Navi Mumbai-400614. ...Respondents
WITH
WRIT PETITION NO. 1184 OF 2017
M/s.Satra Properties (India) Ltd.,
Dev Plaza, 2nd floor, Opposite Andheri Fire Station,
S. V. Road, Andheri (West), Mumbai-400058. .. Petitioner
Vs.
1. Navi Mumbai Municipal Corporation, through
Hon'ble Municipal Commissioner, Head Qurter, Plot
No.1 Near Kille Gaothan, Palmbeach Junction,
Section 15A, C.B.D.road, Belapur, Navi Mumbai,
Pin:400614.
2. City and Industrial Development Corporation of
Maharashtra Ltd., Nirmal, 2nd Floor, Nariman Point,
Mumbai-400021. ...Respondents
_____________
Mr. Atul Rajadhyaksha, Senior Advocate with Mr. Nishant Tripathi i/b.
M/s. M. Tripathi & Co. for Petitioner in WP No.1374/17.
Mr. Deep Dighe i/b. Mr. Amit Tungare for Petitioner in WP No. 1184/17.
Mr. Tejesh Dande with Mr. Bharat Gadhavi for NMMC, Respondent
Nos. 1 & 2 in WP No. 1374/17 and for Respondent No.1 in WP No.
1184/17.
Mr. Ashutosh Kulkarni with Mr. Sarthak Diwan for CIDCO, Respondent
No.5 in WP No. 1374/17 and for Respondent No.2 in WP No. 1184/17.
Mr. A.A. Alaspurkar, AGP for State, Respondent No.4 in WP No.
1374/17.
Page 2 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
3 wp [email protected]
_____________
CORAM : G. S. KULKARNI &
KAMAL KHATA, JJ.
RESERVED ON: APRIL 24, 2023
PRONOUNCED ON: MAY 4, 2023
P.C.:
1. The petitioner is a co-operative society registered under the
provisions of Maharashtra Co-operative Societies Act, 1960 and pursuant
to the mandate of the first proviso to Section 10 of Maharashtra
Ownership of Flats (Regulation of the Promotion, Construction, Sale,
Management & Transfer) Act, 1963 by the purchasers of offices/shops in
the building constructed by respondent no.3 - M/s. Satra Properties
(India) Ltd., the developers. The land on which the petitioner's premises
are constructed is described to be Plot Nos. 19 and 20, Sector - 19-D,
Vashi, Navi Mumbai - 400 703.
2. The petitioner impugns an order dated 27 December, 2016 passed
by the Municipal Commissioner (Respondent No. 2) of respondent No.1
- Navi Mumbai Municipal Corporation (for short "municipal
corporation") whereby in exercise of powers vested with the Planning
Authority, the municipal corporation has revoked/cancelled not only the
Page 3 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
4 wp [email protected]
Occupancy Certificate dated 09 February, 2012 issued to the premises of
the petitioner, but also the revised Commencement Certificate.
3. The question which arises for consideration in the present
proceeding is whether in the facts of the present case the Municipal
Commissioner at all had any power to revoke the Occupation Certificate
granted to the petitioner's premises.
4. Shortly stated the facts are:-
Respondent No. 5-City And Industrial Development Corporation
of Maharashtra Ltd. (for short, "CIDCO") had constructed two buildings
for offices for the brokers of the Agricultural Produce Market Committee
(for short "APMC") on the land in question prior to the year 2000.
CIDCO allotted both, the buildings along with Plot No.19 and adjacent
vacant Plot No.20, namely the lands in question to the municipal
corporation for its use as its Head Office.
5. The municipal corporation subsequently discovered that the two
buildings constructed on Plot No. 19 were not suitable for its office use.
Page 4 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
5 wp [email protected]
The municipal corporation invited tenders in the year 2005 for the sale of
two office buildings along with the composite plot. In pursuance of the
tender/scheme floated by the municipal corporation, various aspirants
submitted their offers. One M/s. Om Housing Company Pvt. Ltd. (for
short, "Om Housing") turned out to be the highest tenderer.
Consequently, the municipal corporation issued to Om Housing a letter
of acceptance dated 02 July, 2005. Since Om Housing needed finance
from banks/financial institutions, by its letter dated 10 August, 2015, Om
Housing requested the municipal corporation to execute "Agreement to
Lease" in its favour. The municipal corporation consequently executed
Agreement to Lease dated 18 August, 2005 agreeing to lease these
composite plots in favour of the Om Housing, on the terms and
conditions as set out therein.
6. The municipal corporation thereafter, by its letter dated 02
February, 2006 applied to CIDCO for permission to transfer and assign
its leasehold rights of the composite plot in favour of Om Housing.
CIDCO by its letter dated 24 February, 2006, requested the municipal
Page 5 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
6 wp [email protected]
corporation to pay additional lease premium vis-a-vis for the grant of
additional FSI and amalgamation of the two plots. The municipal
corporation made the payment of Rs.14,78,10,000/- towards the
additional lease premium for the grant of additional FSI and
amalgamation of two plots to CIDCO. Upon the payment of such
additional lease premium, CIDCO by its letters dated 27 October, 2006
granted permission for the utilisation of the additional FSI as also for the
amalgamation of the two plots on the terms and conditions as set out
therein. CIDCO thereafter by its two letters both dated 21 December,
2006 allowed the municipal corporation to transfer and assign its
leasehold rights vis-a-vis Plot No.19 and the two buildings standing
thereon as well as Plot No. 20 in favour of the Om Housing.
7. Pursuant to the permission from CIDCO dated 21 December,
2006, the municipal corporation executed a Deed of Assignment dated 21
December, 2006 in favour of the Om Housing.
8. Thereafter in pursuance of the approval of the CIDCO dated 21
Page 6 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
7 wp [email protected]
December, 2006 to transfer and assign its leasehold rights in respect of
both the said plots, a tripartite agreement dated 28 December, 2006 was
executed between the CIDCO, the municipal corporation and Om
Housing. Accordingly, under such agreement the said plots stood vested
in Om Housing.
9. Thereafter, Om Housing submitted a scheme of amalgamation with
respondent no.3-M/s. Satra Properties (India) Ltd. (for short "Satra
Properties") then known as "Express Leasing Ltd." under Sections 391
and 394 of the Companies Act, 1956, subject matter of Company Petition
No. 45 of 2007 filed in this Court. Such petition was allowed by this
Court by an order dated 16 April, 2007. Om Housing thus stood
amalgamated with Satra Properties. Consequently all the assets and
liabilities of Om Housing stood vested with Satra Properties. Further
CIDCO by its letter dated 27 March, 2008 acknowledged the
amalgamation of Om Housing with Satra Properties.
10. Consequent to the amalgamation, Satra Properties was seized,
Page 7 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
8 wp [email protected]
possessed and was sufficiently entitled to Plot No.19 along with two
existing buildings standing thereon and Plot No.20. CIDCO by its letter
dated 24 February, 2006, granted consent/ permission for the
amalgamation of Plot No.19 with Plot No.20 and for the utilization of
additional FSI pursuant to the payment of costs and charges. Satra
Properties accordingly became entitled to develop the composite plot and
carry out building operations thereon with development permission to be
granted by the municipal corporation.
11. Upon acquiring the right, title and interest vis-a-vis the composite
plot, with the permission of the municipal corporation, Satra Properties
demolished both the office buildings standing on Plot No.19 and applied
for development permission on the composite plot as per the provisions
of Section 44 of the Maharashtra Regional and Town Planning Act (for
short, "MRTP Act") read with Regulation 4 of General Development
Control Regulations for Navi Mumbai Municipal Corporation, 1994 (for
short, "the GDCR").
Page 8 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
9 wp [email protected]
12. The municipal corporation by its letter dated 07 March, 2007
granted development permission to Satra Properties and issued
Commencement Certificate as also approved plans for the construction of
a commercial building consisting of two levels of basement for parking
and storage and ground plus thirteen upper floors. Satra Properties
accordingly obtained permissions as also had got the revised plan
sanctioned by the municipal corporation. It also sold various shops and
offices in the building being constructed by it on the said plots and
executed Agreements for Sale in favour of several persons who agreed to
acquire shops/offices in the said project.
13. Satra Properties having completed the construction on the
composite plot, made an application to the municipal corporation for
issuance of an Occupancy Certificate as per the requirements of the
regulations. After following the procedure, the municipal corporation
granted an Occupancy Certificate dated 09 February, 2012 not in
accordance with Form No.19 as Form No.19 does not contemplate any
condition attached to it. The Occupancy Certificate dated 09 February,
Page 9 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
10 wp [email protected]
2012 which reads thus:-
"NAVI MUMBAI MUNICIPAL CORPORATION
1st Floor, Belapur Bhavan, C.B.D., Navi Mumbai - 400 614.
Tele. Nos. 27577070, 27575700
Fax No. 27573785
---------------------------------------------------------------------------------
Outward No. TPD/O.C./M. No. B-6704 /714/2012.
Date: 09.02.2012.
OCCUPANCY CERTIFICATE
Read: 1) Revised Certificate for Commencement of Construction
bearing No. N.M.M.C./T.P.D./B.P./M. No. A-
8151/3450/2009, dated 04.09.2009, issued by Navi
Mumbai Municipal Corporation.
2) Circular dated 31.07.2008 about charging of Premium
issued by Navi Mumbai Municipal Corporation.
3) Certificate regarding Completion of Construction, dated
30.03.2011 produced by the Architect- M/s. Hiten Sethi.
--------------------------------------------------
The owner by name M/s. Satra Properties (India) Limited of the
land bearing Plots of land No. 19 and 20, situated in Sector No. 19-D,
Vashi, Navi Mumbai in Navi Mumbai has completed the construction on
the said plot of land on the date 23.02.2011. The Certificate in respect
thereof has been submitted by the concerned Architect M/s. Hiten Sethi. As
the terms and conditions, as mentioned in the Revised Certificate for
Commencement of Construction dated 04.09.2009 issued by the Navi
Mumbai Municipal Corporation, have been complied with and also the
action about recovery of various fees pursuant to the Circular dated
31.07.2008 about charging Premium, issued by the Municipal Corporation
has been carried out, permission is granted to make use of the said plot of
land as follows:
1) Area of the plot of land : 19238.51 Sq. Mtrs.
2) Permissible Floor Space Index : 1.50
3) Built-up Area under Commercial use : 28751.840 Sq. Mtrs.
(Shops - 59, Offices - 329, Banquet
Halls - 02 under commercial use)
4) Built-up Area under Balcony : 4799.44 Sq. Mtrs.
Page 10 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
11 wp [email protected]
(Sd/-)
[Sanjay S. Banait],
Assistant Director, Town Planning,
Navi Mumbai Municipal Corporation."
14. On the same day, a covering letter dated 09 February, 2012 was
addressed to Satra Properties inter-alia setting out conditions in respect of
the Occupancy Certificate and, more particularly condition no.4 stating
that it would be binding to produce 'No Objection Certificate' issued by
the CIDCO within one year, otherwise occupancy would be cancelled.
The said letter is addressed by the Assistant Director of Town Planning,
Navi Mumbai Municipal Corporation to Satra Properties which reads
thus:-
"NAVI MUMBAI MUNICIPAL CORPORATION
1st Floor, Belapur Bhavan, C.B.D., Navi Mumbai 400614
Tel.No. 27577070, 27575700, Fax 27573785
------------------------------------------------------------------------------------------
Outward No. T.P.D./O.C./M.No. B-6704/714/2012
Date : 09.02.2012
To,
M/s. Satra Properties (India) Ltd.
Plot No. 19 and 20, Sector 19 D,
Vashi, Navi Mumbai.
File No. N.M.M.C./S.M.No.........Matter No. B-6704
Subject :- Regarding issuing Occupancy Certificate in respect of
the property bearing Plot No. 19 and 20, Sector 19 D,
Vashi, Navi Mumbai.
Page 11 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
12 wp [email protected]
Reference :- Applications dated 30.03.2011 and 11.09.2011 of your
Architect.
Respected Sir,
In pursuance of the applications referred to hereinabove, the
Occupancy Certificate for commercial use of the property bearing Plot No.
19 and 20, Sector 19 D, Vashi, Navi Mumbai, is enclosed herewith.
As internal changes have been made without permission, the
amount of Security Deposit has been forfeited, as per the condition
mentioned in the Construction Commencement Certificate, which may
please be noted.
As per the Government Circular No. BCA 2007/M.No.
788/Labour 7-A, dated 26th October, 2009 issued by the Industry, Energy
and Labour Department, Labour Cess has been paid in this matter and the
Labour Welfare Cess Unique Code No. 20110200403 B-6704 01 has been
given thereto.
Conditions:- 1) Appropriate precaution should be taken from time to
time to permanently maintain the markings showing the entire Parking
Arrangement within the boundary of the said building, as shown in the
sanctioned plan.
2) Precaution should be taken categorically to see that common
passages, Lobby, AHU in the said building and the area, free of Floor Space
Index, calculated by charging premium as well as other items (area) taken
free of Floor Space Index, is not misused or is not used unauthorizedly.
3) As the Palm Beach Road is passing adjacent to the said Plot, the
access for the vehicles to the said plot should not be given from Palm Beach
Road. Similarly, precaution should be taken to see that no hindrance is
caused to the traffic on Palm Beach road.
4) It shall be binding to submit No-Objection Certificate issued by the
Office of CIDCO, within one year or else, this Occupancy Certificate shall
be cancelled.
Copy for information - Yours faithfully,
1) Hiten Sethi, Architect,
'Meher', ground floor, Plot No.260, Sector 28, Sd/-
Vashi, Navi Mumbai. (Sanjay S. Banait)
2) Deputy Commissioner (Cess), Assistant Director, Town Planning,
Koparkhairane.
3) Deputy Commissioner, Zone 1/2, N.M.M.C..
4) Assessor and Collector, N.M.M.C., Turbhe.
5) Chief Architect and Planner, CIDCO Ltd..
6) Ward Officer, N.M.M.C., Turbhe."
(emphasis supplied)
Page 12 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
13 wp [email protected]
On 8 December 2012 Satra Properties sought a 'No Dues Certificate'
from CIDCO. In such letter addressed by Satra Properties, it was
recorded that CIDCO had not replied to the earlier letters of Satra
Properties dated 22 November 2010, 30 December 2010 and 9 March
2011, requesting for a 'No Due Certificate'. On 3 January 2013, for the
first time, CIDCO responded to the said letters addressed by Satra
Properties inter alia stating that Satra Properties would have to bear for
some time for a "No Dues Certificate", as CIDCO was to interalia obtain
compliance from the municipal corporation in regard to the lease of the
said plots, incidental to the grant of change of usage of the land and
enhanced FSI.
15. The petitioner has contended that the Municipal Corporation was
insisting on "No Dues Certificate" to be obtained by Satra Properties and
failing which Satra Properties was threatened to invoke the occupation
certificate. This necessitated Satra Properties to address letters to CIDCO
to approach the Municipal Corporation and settle the issues.
16. On 15 January 2014 Municipal Corporation issued a show cause
Page 13 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
14 wp [email protected]
notice to Satra Properties as to why the Occupation Certificate granted by
the municipal corporation should not be revoked and called upon Satra
Properties for a hearing on 22 January 2014. The petitioner also
addressed a letter on 22 January 2014 to the Municipal Commissioner
requesting the NMMC that the petitioner be also heard in the matter, as
the issue pertains to the cancellation of the occupancy certificate of the
premises of the petitioner society.
17. A hearing on the show - cause notice issued by the Municipal
Commissioner was scheduled on 22 January 2014, however no notice was
issued to the petitioner. On 17 December 2016 which was almost after 2
years of the earlier show - cause notice, a fresh show - cause notice came to
be issued to Satra Properties, however, no notice was issued to the
petitioner, on 20 December 2016 to participate at the hearing. Petitioner
addressed an E-mail to the Municipal Corporation requesting the
petitioner's presence at the hearing, to take place on a future date. A copy
of such letter was also forwarded to the Additional Commissioner of the
Municipal Corporation.
Page 14 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
15 wp [email protected]
18. On 23 December 2016 a hearing on the show cause notice took
place before the Municipal Commissioner, however, no notice of such
hearing was issued to the petitioner although an opportunity of the same
was sought by the petitioner by its letters as noted above. Consequent to
such hearing on 27 December 2016, the Municipal Commissioner passed
the impugned order cancelling the Occupancy Certificate as also the
revised Commencement Certificate. The said order was also
communicated to the members of the petitioner/society. The impugned
order cancelling the Occupation Certificate is annexed at Exhibit-N (Page
270 to the Writ Petition). The operative part of the impugned order is
required to be noted which reads thus:-
(Official Translation of the Original Marathi Version)
" ORDER
A) As the Condition No.4 mentioned in the Occupancy
Certificate issued to the building standing on the Plot under subject,
by the Navi Mumbai Municipal Corporation, under letter dated
09.02.2012, is not complied with, the Occupancy Certificate
togetherwith the revised Building Permission, is hereby cancelled.
B) As the Building Permission granted in the matter under
subject is cancelled, the said structure becomes illegal/unauthorized
one and therefore, the Deputy Commissioner and Controller
(Unauthorized Works) as well as the Ward Officer Concerned shall
take further legal action.
Page 15 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
16 wp [email protected]
C) In the matter under subject, as the Developer and also the
Architect concerned are responsible, the copy of this Order is sent to
the Council of Architects, New Delhi for taking action against him
accordingly.
Copy of this order is served upon the Developer M/s. Satra Properties
(India) Ltd. and the Architect Shri Hiten Sethi."
19. In the above circumstances, the present petition has been filed
praying for the following reliefs:-
"a) That this Hon'ble Court may be pleased to declare:
(i) That condition no.4 appended to the O. C. dated the 9 th
February, 2012 requiring the 3rd Respondents to furnish the NOC of
the 5th Respondents was/is ultra-vires the provisions of the MRTP
Act, MPMC Act and the GDRC (particularly Reg. 9.8 of the GDRC)
and hence liable to be quashed and set aside; and
(ii) That the 1st / 2nd Respondents have no jurisdiction in law to
cancel/revoke the O.C. dated 9th February, 2012 (Exh. "H"); and
(iii) That the 1st / 2nd Respondents have no jurisdiction to issue
notices at Exhs - "O" to "O-104" and the identical notices to the
other members of the Petitioners under S. 53(1) of the MRTP Act as
they have done; and
(iv) That the O.C. dated 9th February, 2012 (Exh - "H") is
irrevocable; and
(v) That the order dated 27th December, 2016 (Exh - "N") is bad
in law, untenable and liable to be quashed and set aside; and
(vi) That the notices at Exhs - "O" to "O-104" and other identical
notices to the other members of the Petitioners issued without having
jurisdiction to do so are also bad in law and liable to be quashed and
set aside.
(b) That this Hon'ble Court may be pleased to issue writ of
Page 16 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
17 wp [email protected]
certiorari or a writ in the nature of certiorari or any other writ, order
or direction of this Hon'ble Court calling for the records of the
proceedings conducted by the 1st / 2nd Respondents u/s. 51(1) of the
MRTP Act in which the impugned order dated 27 th December, 2016
was passed and after scrutinising, quash and set aside the same.
(c) That this Hon'ble Court may be pleased to issue writ of
mandamus or writ in the nature of mandamus or any other writ,
order and direction directing the 1 st / 2nd Respondents to withdraw
the notices at Exhs - "O" to "O-104" and all other identical notices
issued to the other members of the Petitioners or in the alternative
this Hon'ble Court may be pleased to quash/set aside the same.
(d) That pending the hearing and final disposal of this Writ
Petition, this Hon'ble Court may be pleased to restrain the 1 st / 2nd
Respondents, their officers, servants and agents from:
(i) implementing, operating and executing the impugned
order dated 27th December, 2016 (Exh - "N") and/or in any manner
interfering with and/or disturbing the peaceful possession and use
and enjoyment of the building known as 'Satra Plaza' standing on
Plot No. 19/20, Sector - 19-D, Vashi, Navi Mumbai by the
Petitioners and/or their members.
(ii) implementing, operating and executing the notices at
Exhs - "O" to "O-104" and all other identical notices issued to the
other members of the Petitioners and/or in any manner interfering
with and/or disturbing the peaceful possession and use and
enjoyment of the building known as 'Satra Plaza' and the tenements
therein standing on Plot No. 19/20, Sector - 19-D, Vashi, Navi
Mumbai by the Petitioners and/or their members.
(e) That this Hon'ble Court may be pleased to grant interim/ad-
interim reliefs in terms of Prayer Clauses (d-i) and (d-ii) supra."
20. On behalf of the municipal corporation, a reply affidavit of Mr.
Hemant Ramdas Thakur, Assistant Director of Town Planning, Navi
Mumbai Municipal Corporation, has been filed stating that a detailed
Page 17 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
18 wp [email protected]
reply affidavit filed in the companion petition by Satra Properties be
considered as an affidavit in the present proceedings. In the municipal
corporation's reply affidavit filed in the companion petition, it is
contended that the municipal corporation has acted in pursuance of the
Government order dated 16 December, 1994 issued under Section 154 of
the MRTP Act conferring powers on the municipal corporation as
planning authority in respect of the developed nodes. It is stated that the
State Government in the said order incorporated that it was mandatory
for the municipal corporation to insist upon Satra Properties to obtain
'No Objection Certificate' (in short "NOC") from CIDCO before issuing
a development permission; and that the municipal corporation should
insist on obtaining NOC from CIDCO at the time of issuing an
Occupancy Certificate. It is hence stated that the provision for obtaining
NOC both at the time of grant of development permission, as well as, at
the time of issuance of an occupancy certificate was mandatory by virtue
of the said order of the State Government, as CIDCO continued to own
most of the lands in the Navi Mumbai Project Area, and was entitled to
recover different kinds of charges from the allottees of lands. It is for such
Page 18 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
19 wp [email protected]
reason the grant of development permission under Section 44 of the
MRTP Act was made subject to CIDCO issuing NOC, both at the time of
issuance of the Commencement Certificate as well as for grant of an
Occupancy Certificate. This is also stated to be the requirement under
Regulation 6.3.17 of the DCR of the municipal corporation, necessary for
utilisation of additional FSI, change of user, mixed user, amalgamation,
redevelopment etc. The affidavit also refers to some file notings which
inter-alia included Satra Properties, undertaking that it would be fully
responsible for any financial and legal aspects if they arise in the future,
and that the municipal corporation would not be held responsible
whatsoever. Considering such an undertaking, it was decided to issue
Occupancy Certificate on the condition to submit CIDCO's NOC within
three months. In this regard, the relevant extract of the reply affidavit is
required to be noted which reads thus:-
"...... The said file noting was approved at various levels such as
Draughtsman, Dy. Accountant, Dy. Engineer, Town Planner and
Asst. Director of Town Planning. After such approval, the concerned
file was placed for approval of the Municipal Commissioner who
remarked that Occupancy Certificate should be granted as the plot
was auctioned by NMMC to the Petitioners as a peculiar case.
Accordingly, the then Asst. Director of Town Planning issued the
occupancy certificate dated 09/02/2012 in respect of both Plot Nos.
19 and 20 by putting condition therein that NOC of CIDCO must
be submitted within 1 year, failing which the Occupancy Certificate
Page 19 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
20 wp [email protected]
shall stand cancelled. Thus as against the period of 3 months
proposed in the file nothing approved till the level of Commissioner,
it is not clear as to why period of 1 year was stipulated in the
Occupancy Certificate dated 09/02/2012. Furthermore there is no
provision for processing proposal for Occupancy Certificate merely
on the basis of an undertaking of the developer. Similarly there is no
provision for issuance of conditional Occupancy Certificate."
21. The said affidavit further states that the objective behind making a
provision for mandatorily obtaining NOC from the CIDCO for grant of
Occupancy Certificate, is to ensure that CIDCO recovers various charges
from the allottees. It is stated that in the present case, on account of non-
completion of construction by the petitioner within the time limit, Satra
Properties became liable to pay charges to CIDCO for condonation of
delay, and Satra Properties wanted to avoid the liability to pay such
charges to the CIDCO. It is further stated that Satra Properties ought to
have complied with its undertaking to make payment of the CIDCO
charges. The affidavit also refers to a correspondence in the peculiar facts
of the case, in as much as, the plots in question placed at the disposal of
the municipal corporation. In these circumstances, municipal corporation
addressed a letter dated 04 November, 2016 to the Chairman and
Managing Director of the CIDCO requesting for the decision on the no
Page 20 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
21 wp [email protected]
dues certificate. In such letter, it was pointed out by the Municipal
Commissioner that CIDCO had sought time vide letter dated 03 January,
2013 for issuance of no dues certificate, but no further decision from the
CIDCO was received thereof. It is stated that the Manager (Town
Services), CIDCO responded to the said letter of the Municipal
Commissioner by his letter dated 25 November, 2016 stating that the
matter was placed before the Board of the CIDCO on 28 August, 2013
and the Board sought clarification of various issues pertaining to the
legality of sale of plot to NMMC, grant of permission to transfer, change
of user etc. and it is for such reason, it was communicated that 'No Dues
Certificate' cannot be granted to Satra Properties in respect of Plot No. 19
and 20. It is stated that on such backdrop, the Assistant Director of Town
Planning had issued a show cause notice dated 17 December, 2016 to
Satra Properties and to its Architect with a copy thereof to CIDCO and
invited them for the hearing scheduled on 23 December, 2016. Further
that during such hearing, Satra Properties had requested for further
extension of time for submission of CIDCO's NOC. It is stated that after
hearing the parties, the Municipal Commissioner passed the impugned
Page 21 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
22 wp [email protected]
order dated 27 December, 2016 revoking the revised development
permission as well as Occupancy Certificate. It is stated that the
Municipal Commissioner was accordingly entitled to revoke the
permission as per the provisions of Section 258 of the Maharashtra
Municipal Corporations Act as well as DCPR Regulation 8.6. It is
accordingly prayed that the petition be dismissed.
22. This petition was first heard on 02 February, 2017 when a co-
ordinate bench of this Court while issuing notice to the respondents had
directed that no coercive steps be taken against the members of the
petitioner in pursuance of the impugned order. The said order has
continued to operate till date. It may also be stated that a co-ordinate
bench of this Court on 05 September, 2022, had passed the following
order:-
"1. Heard the learned Counsel for CIDCO. Learned Counsel for
CIDCO tendered Minutes of Meeting dated 6.4.2021 and submitted
that pursuant to order dated 30.3.2021, passed by this Court, a
meeting was held on 6.4.2021. He further submitted that, in the said
meeting, the Navi Mumbai Municipal Corporation and CIDCO
concluded that in view of the Completion Certificate of the Architect,
Occupancy Certificate was issued by the Navi Mumbai Municipal
Corporation on 9.2.2012 and the present status that the occupants
are using the constructed premises, that all these facts will be
brought to the notice of the Board and the issue of validity of the
Page 22 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
23 wp [email protected]
Occupancy Certificate issued by Navi Mumbai Municipal
Corporation on 9.2.2012, will be submitted for suitable consideration
of the Board. The decision of the Board will be communicated to the
Hon'ble High Court. Learned Counsel for CIDCO further submitted
that the next meeting of the Board is likely to be held shortly.
2. Learned Counsel seeks time to inform this Court about the
next date of the meeting, on which appropriate decision will be taken
on the issue of validity of the Occupancy Certificate issued by Navi
Mumbai Municipal Corporation on 9.2.2012.
3. Place the matter under the caption 'directions' on
supplementary board on 14.9.2022.
4. It is made clear that no further adjournment will be granted."
23. Lastly, this Court on 21April, 2023, noting the peculiar facts of the
case, passed the following order calling upon the NMMC to take an
appropriate decision:-
"1. We have heard Mr. Rajadhyaksha, learned Senior Counsel for
the Petitioner and Mr. Dande, learned counsel for the NMMC and
Mr. Kulkarni, learned Counsel for CIDCO for some time.
2. We have discussed the issues as falling for consideration of the
Court. Mr. Dande, Learned counsel for the NMMC considering the
complexion of case fairly states that he would take instructions from
his clients as to whether the issues could be resolved. The controversy
in the present proceedings is quite peculiar. In our opinion, this is a
fit case where an appropriate decision to reconsider the impugned
order passed by the Municipal Commissioner of NMMC needs to be
taken. Prima facie we are of the opinion that serious prejudice has
been caused to the petitioner by the impugned order which is of a
nature that by a stroke of the pen the occupation certificate as well as
C.C. have been cancelled, seriously affecting legal and constitutional
rights of the Petitioners, who are the occupants of the premises. It was
condition relevant to the developer in regard to any recovery at the
hands of CIDCO, which could not affect the occupants of the
Page 23 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
24 wp [email protected]
completed building, in respect of which occupation certificate as also
completion certificate was granted. Such order passed by the
Municipal Corporation had a direct bearing on the rights of the
occupants guaranteed under Article 300 (A) of the Constitution,
apart from the rights which an occupancy certificate would confer
under the provisions of the MRTP Act. We are also disturbed by the
fact that the impugned order has been passed in breach of the basic
requirement of law not being followed, namely that the Petitioners
not being heard in compliance of the principles of natural justice,
when the Municipal Commissioner who has passed the impugned
order was aware that the building was occupied by third parties and
any such order passed by him would adversely affect the third parties
like the petitioners. This is the complexion of the proceedings.
3. We leave it to the Municipal Commissioner to take
appropriate decision and inform the said decision to the court failing
which we would be constrained to adjudicate the petition on merits
after hearing all the parties.
4. Accordingly Stand over to 24th April, 2023 at 3 p.m. part
heard.
5. If at all appropriate decision is taken, we keep open all
contentions of the CIDCO to take appropriate action in accordance
with law in regard to recovery of its dues in respect of plot of land in
question. We are also informed that there are number of other similar
plots in which this issue is being discussed between CIDCO and the
NMMC, by the committee as appointed by the State Government by
Government Resolution dated 27th October, 2022 and the extension
to which, is granted by the subsequent Government Resolution dated
8th February, 2023, a copy of which is placed on record.
6. Parties to act on the authenticated copy of this order."
Submissions on behalf of the Petitioner
24. Mr. Rajadhyaksha, learned senior counsel for the petitioner, has
made the following submissions: -
Page 24 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
25 wp [email protected]
(i) The impugned order cancelling the Occupancy Certificate
and the revised Commencement Certificate is patently illegal and a
nullity as it is passed without an opportunity of hearing being
granted to the petitioner in adherence to the principles of natural
justice.
(ii) It is stated that the impugned order is clearly an order which
has civil consequences as it has adversely affected the rights of the
third parties who are purchasers of the premises and are members
of the petitioner-society. It is submitted that there is a serious
prejudice which is caused to the members of the petitioner by the
impugned order as it could never be contemplated that in respect
of a legally constructed building, in which premises are purchased
by such third party purchasers, being revoked of its Occupancy
Certificate, creating a situation that it would not be possible for the
members of the petitioner to deal with their premises. It is
submitted that this is directly in violation of the rights of the
members of the petitioner guaranteed under Article 19(1)(g) of the
Page 25 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
26 wp [email protected]
Constitution of India affecting their business and the right to
property guaranteed under Article 300A of the Constitution of
India apart from being patently arbitrary, unreasonable and in
violation of Article 13 of the Constitution.
(iii) It is submitted that such cancellation of Occupancy
Certificate for the reasons as set out in the impugned orders falls
foul of the provisions of Section 51 of the MRTP Act. In such
context, it is submitted that Section 51 provides for inbuilt
safeguards. In the present case, there was no reason whatsoever to
invoke a power conferred under Section 51 of the MRTP Act, in as
much as power under Section 51 of the MRTP Act can be exercised
only when the planning authority is of the opinion that the
permission may be revoked or modified having regard to the
development plan. It is submitted that there is no such reason
whatsoever which would justify invocation of Section 51 of the
MRTP Act.
Page 26 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
27 wp [email protected]
(iv) It is submitted that even Section 51 is subject to the
observance of the principles of natural justice, which is a condition
precedent which has been breached as no hearing was granted to
the petitioner before passing the impugned order.
(v) It is submitted that it is well settled that power under Section
51 of the MRTP Act can be used only for the purposes set out in
the provision and not for any extraneous purposes and by applying
the principles of law that the power is required to be exercised only
in the manner as prescribed by the statute or not at all, the
impugned order deserves to be set aside.
(vi) It is next submitted that Occupancy Certificate can never be
conditional as it has serious consequences, as also such can also
never be the interpretation of the development control regulations
which are sought to be relied on behalf of the CIDCO. In any
event, the CIDCO under New Bombay Disposal Of Land
Regulations, 1975 can recover lease premium or any other charges
from Satra Properties as provided under Regulation 3. Even
otherwise it has a contractual right to recover the same from Satra
Page 27 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
28 wp [email protected]
Properties, which is also clear from the affidavit filed by the
CIDCO referring to the clauses in the Deed of Assignment. A
development permission being conditionally issued, would not be a
correct position in law, even on the cumulative reading of the said
regulations. In support of such contention, reliance is placed on
the decisions of (I) Digambar Sakharam Tambolkar and another v.
Pune Municipal Corporation and others1, (ii) Shree Ambica
Developers v. State of Maharashtra and others 2, (iii) Mahavir
Enterprises and others v. State of Maharashtra and others 3, (iv)
Smt. Subhadrabai D. Gaykar v. Asst. Director of Town Planning
Kalyan Municipal Corporation and Ors.4, (v) Hansa D. Moodaliar
v. Pune Municipal Corporation and Ors.5, (vi) Brajrendra Singh
Yambem v. UOI and anr.6, (vii) Kedar Nath Yadav v. State of W.B. 7
and (viii) Tahsildar, Taluk Office, Thanjore and Ors. v. V. G.
Thambidurai and anr.8.
1 1987 Mh.L.J. 419
2 2012(3) Mh. L.J. 640
3 1990 Mah. L.J. 1015
4 2004(2) Mh.L.J. 1087
5 1998(3) Mh.L.J. 10
6 (2016) 9 SCC 20
7 (2017) 11 SCC 601
8 (2017) 12 SCC 642
Page 28 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
29 wp [email protected]
Submissions on behalf of the Respondents
25. On the other hand, Mr. Dande, learned counsel for the municipal
corporation would not dispute that the petitioners were not heard before
passing of the impugned order by which the Occupancy Certificate
granted to the petitioner's premises was cancelled as also the revised
Commencement Certificate. It is submitted that however such action was
required to be taken by the municipal corporation in pursuance of the
directions of the State Government and the insistence of the CIDCO for
recovery of amount due and payable by Satra Properties to the CIDCO in
regard to the plots in question. It is submitted that it was an obligation on
Satra Properties to make payment of the said amount to the CIDCO. It is
submitted that CIDCO, under its regulations and the NOC granted by it
to undertake development of the plots in question, was entitled to recover
the said amount from Satra Properties. It is next submitted that not only
in respect of the plots held by the petitioner, but also in respect of the
other plots, issue of amounts due and payable to the CIDCO was also
subject matter of consideration before the State Government. In such
Page 29 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
30 wp [email protected]
regard, discussions have taken place between the CIDCO and the
NMMC. It is submitted that under the terms and conditions of the
agreement entered between Satra Properties and the NMMC, it was
incumbent on Satra Properties to make payment of such amount and for
such reason, there cannot be a dispute that amounts are recoverable by
CIDCO from Satra Properties. In so far as the applicability of Section 51
of the MRTP Act is concerned, Mr. Dande has made submissions on the
purport of Section 51 of the MRTP Act.
26. Mr. Ashutosh Kulkarni, learned counsel for the CIDCO would
submit that issuance of Occupancy Certificate and its cancellation are
matters purely concerning the municipal corporation. It is submitted that
however, CIDCO has its claim to recover the amounts on the said plots
and which need to be kept open and the CIDCO ought not to be
prejudiced in any manner so that the recovery of the said amounts is in
any manner affected. Mr. Kulkarni has drawn our attention to powers of
CIDCO as conferred under New Bombay Disposal Of Land Regulations,
1975 and also taking into consideration the provisions of the MRTP Act,
whereunder the CIDCO was appointed by the State Government as a
Page 30 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
31 wp [email protected]
new town development authority, for the Navi Mumbai Project. It is
hence, his submission that whatever amounts, which is legitimately due
and payable to the CIDCO, CIDCO would be entitled to recover the
same as permissible in law. Mr. Kulkarni, therefore, submits that the
rights and interest of the CIDCO, to such extent needs to be protected.
27. On the above conspectus, we have heard learned counsel for the
parties, as also we have perused the record.
Analysis and Conclusion
28. At the outset, it needs to be stated that on facts, there is no dispute
that Satra Properties was allotted the plots in question and that Satra
Properties had undertaken the construction in question. The
construction was undertaken as per the plans which were approved. The
construction was never categorized to be an illegal construction and was
in fact, granted an Occupancy Certificate on 09 February, 2012. The
consequence of a building receiving Occupancy Certificate needs no
elaboration, suffice it to observe that the building in question was
Page 31 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
32 wp [email protected]
permitted to be legally occupied as also tenements in the building could
be purchased and sold by the members of the petitioner to third parties.
Thus, the consequence of Occupancy Certificate being granted not only is
a consequence relevant to the co-operative society like the petitioner, in
which such tenements are situated, but also relevant in so far as the
members of the petitioner who have purchased the tenements and who
are entitled in law to occupy the same on the assumption, that their
occupation by virtue of the Occupancy Certificate granted by the
municipal corporation is legal and valid.
29. The power of revocation of an Occupancy Certificate is governed
by Section 51 of the MRTP Act. As the impugned order passed by the
Municipal Commissioner is in exercise of such powers, such provision is
required to be noted which reads thus:-
"51. Power of revocation and modification of permission to
development:-
(1) If it appears to a Planning Authority that it is expedient,
having regard to the Development plan prepared or under
preparation that any permission to develop land granted 1 [or
deemed to be granted] under this Act or any other law, should be
revoked or modified, the Planning Authority may, after giving the
person concerned an opportunity of being heard against such
revocation or modification, by order, revoke or modify the permission
to such extent as appears to it to be necessary:
Page 32 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
33 wp [email protected]
Provided that- (a) where the development relates to the carrying out
of any building or other operation, no such order shall affect such of
the operations as have been previously carried out; or shall be passed
after these operations have substantially progressed or have been
completed;
(b) where the development relates to a change of use of land, no such
order shall be passed at any time after change has taken place.
(2) Where permission is revoked or modified by an order made
under sub-section (1) and any owner claims within the time and in
the manner prescribed, compensation for the expenditure incurred in
carrying out the development in accordance with such permission
which has been rendered abortive by the revocation or modification,
the Planning Authority shall, after giving the owner reasonable
opportunity of being heard by the Town Planning Officer, and after
considering his report, assess and offer, subject to the provisions of
section 19, such compensation to the owner as it thinks fit.
(3) If the owner does not accept the compensation and gives
notice, within such time as may be prescribed, of his refusal to accept,
the Planning Authority shall refer the matter for the adjudication of
the Court, and the decision of the Court shall be final and be binding
on the owner and Planning Authority."
30. A bare reading of Section 51 of the MRTP Act makes it explicit
that the planning authority is required to be satisfied on the following
requirements to invoke the powers under Section 51 to revoke the
Occupancy Certificate:-
i. If it appears to the Planning Authority that it is expedient, having
regard to the "Development Plan" prepared or under preparation that any
permission to develop land granted [or deemed to be granted] under the
MRTP Act is required to be revoked or modified,
Page 33 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
34 wp [email protected]
ii. Necessarily such a decision of the Planning Authority is required to
be taken in the context of an existing development plan prepared or
under preparation, that such a permission to develop is likely to affect
such development plans.
iii. A Planning Authority in taking such action is under an obligation
to grant an opportunity of being heard to the person concerned against
such revocation or modification, before an order is passed to revoke or
modify the permission.
31. The proviso below sub-section (1) also has a bearing in as much as
where the development relates to the carrying out of any building or other
operation, no such order shall affect such of the operations as have been
previously carried out; or shall be passed after these operations have
substantially progressed or have been completed. Further where the
development relates to a change of use of land, no such order shall be
passed at any time after a change has taken place.
32. The question is whether the requirements of Section 51 are
satisfied in the present case, so as to empower the municipal corporation
Page 34 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
35 wp [email protected]
to invoke the provisions of Section 51. On a plain reading of the
impugned order, it is clear that the Occupancy Certificate has been
revoked for breach of condition no.4 of the letter dated 09 February, 2012
issued by the municipal corporation namely that Satra Properties did not
produce NOC from CIDCO within one year of the issuance of the
Occupancy Certificate. It is clear that the breach of condition no.4 of the
Occupancy Certificate, is no ground as Section 51(1) of the MRTP Act
would contemplate, so as to authorise or empower the municipal
corporation to cancel the Occupancy Certificate. Such reason as assigned
by the Municipal Commissioner is nothing to do with development plan
or any proposed development plan and hence, on the clear implication of
the provisions of Section 51(1), the impugned order cancelling
Occupancy Certificate is rendered illegal.
33. This apart, there is a direct breach of provision of sub-section (1) of
Section 51 in the Municipal Commissioner passing the impugned order in
as much as the petitioner certainly was concerned and in fact seriously
prejudiced by any action to be taken by the Municipal Commissioner to
revoke the Occupancy Certificate in exercise of the powers under Section
Page 35 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
36 wp [email protected]
51(1) of the MRTP Act. The Municipal Commissioner proceeded
completely on an erroneous premise that it would be Satra Properties
alone who was the concerned person who would be required to be given a
personal hearing. This was an arbitrary approach of the Municipal
Commissioner. He could not have taken a superficial view of the matter,
deviating from the requirements of law.
34. As stated by us in the foregoing paragraphs, the grant of the
Occupancy Certificate brings about several other legal consequences,
concerning third parties who would be adversely affected, if the
Occupancy Certificate is to be revoked. The petitioner, who would be
directly affected by such decision, was admittedly not heard. Hence the
impugned order passed without hearing the petitioner not only falls foul
of sub-section (1) of Section 51, but would be required to be held to be
non-est and illegal being in breach of the principles of natural justice qua
the petitioner when it brings about civil consequences.
35. The above discussion would lead us to unhesitatingly observe that
the Municipal Commissioner in passing the impugned order has
Page 36 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
37 wp [email protected]
proceeded on a total misinterpretation of the requirement of sub-section
(1) of Section 51 on all counts, namely that the issue did not involve
anything to do with the development plan or any proposed development
plan and that the reason of non-compliance of condition no.4 of the
Occupancy Certificate could never be of any consideration to revoke the
Occupancy Certificate as granted to the premises of the petitioner.
36. As noted above, the Municipal Commissioner totally overlooked
that the reasons as set out in the impugned order of an alleged non-
compliance of condition no.4 i.e. non obtaining of NOC from the
CIDCO was totally alien and/or extraneous to the applicability of Section
51 in the facts of the present case. In such context, Mr. Rajadhyaksha
would be justified in placing reliance on the decisions in Digambar
Sakharam Tambolkar and another vs. Pune Municipal Corporation and
others (supra) and Mahavir Entraprises and others vs. State of
Maharashtra and others9 when he contends that the impugned order has
been passed on misapplication of the powers vested with the Municipal
Commissioner under Section 51of the MRTP Act.
9 1990 Mh.L.J. 1015
Page 37 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
38 wp [email protected]
37. In Digambar Sakharam Tambolkar and another vs. Pune
Municipal Corporation and others (supra), the Division Bench after
noting the said provision, has held that Section 51 which falls under
Chapter IV of the MRTP Act, which deals with "Control of Development
and Use of Land included in Development Plans". It was observed that
there were several inbuilt safeguards in the said provision. It was observed
that permission already granted can be revoked under S. 51 only if it
appears to the Planning Authority that it is expedient to do so having
regard to the Development plan prepared or under preparation. The
Court observed that there were sufficient guidelines indicated in the
section itself to invoke the said provision. It was also observed that there
is a provision for giving opportunity of being heard to the affected party
before the permission already granted could be revoked or modified and it
is not as if in all cases falling under Section 51 (1) but not falling under
the proviso thereto, the permission granted must be revoked and
accordingly, upheld the constitutional validity of Section 51. The relevant
observations are required to be noted which read thus:-
"This section comes under Chapter IV which deals with "Control of
Page 38 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
39 wp [email protected]
Development and Use of Land included in Development Plans".
There are several inbuilt safeguards in the section as is evident from
its plain reading. Permission already granted can be revoked under
Section 51 only if it appears to the Planning Authority that it is
expedient to do so having regard to the Development plan prepared
or under preparation. It is therefore, difficult to accept that no guide-
lines are indicated in the section. There is provision for giving
opportunity of being heard to the affected party before the permission
already granted can be revoked or modified. There again it is not as if
in all cases falling under Section 51 (1) but not falling under the
proviso thereto, the permission granted must be revoked. It can be
modified in appropriate cases. Thus, the Planning Authority is vested
with the discretion. It can revoke or modify the permission
depending upon the circumstances of each case. Sub-section (2) on
the other hand provides for compensation in cases where the affected
party has to suffer loss for no fault of it. In case the affected party is
not satisfied with the amount of compensation granted, there is
provision for reference of the disputes for the adjudication of the
Court."
38. In Mahavir Entraprises and others vs. State of Maharashtra and
others (supra), the Court was concerned with the action of the respondent
of passing the order impugned in the said proceedings without hearing
the petitioners. The Court observed that such action was in breach of the
principles of natural justice, which were explicitly recognized by the
provisions of sub-section (1) of Section 51. Applying the well - settled
principles of law that if the statute provides that the power vested in the
authority should be exercised in a particular manner, it cannot be
exercised in any other manner (as held in Hukum Chand Shyam Lal vs.
Page 39 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
40 wp [email protected]
Union of India and others, AIR 1976 SC 789) the Court held that the
exercise of power by the Planning Authority under section 51 of the Act
was subject to the observance of the principles of natural justice being a
condition precedent for the exercise of such power and an order which
was passed without due observance of the principles of natural justice was
an order without jurisdiction and accordingly, the order impugned therein
was quashed and set aside.
39. In Shree Ambica Developers v. State of Maharashtra and others
(supra) a Division Bench of this Court has held that the power conferred
by Section 51, can be exercised if the planning authority is of the opinion
that the permission must be revoked or modified having regard to a
development plan and when no such ground was stated in the order
impugned before the Court, an order under Section 51 revoking
occupation certificate would be rendered illegal.
40. In Kohinoor CTNL Infrastructure Company Pvt. Ltd. and another
vs. Municipal Corporation of Greater Mumbai 10, a Division Bench of this
10 2013(1) Mh.L.J. 88
Page 40 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
41 wp [email protected]
Court considering Section 51(1) of the MRTP Act, observed that this is a
provision made in the interest of preserving the sanctity of a development
plan and the intent of the provision is to ensure that a development which
would impede or be detrimental to the realisation of the purposes of a
development plan that is already prepared, or even one that is under
preparation should be regulated and this is how sub-section (1)
empowered the planning authority to modify or revoke planning
permission already granted to develop land. It was observed that the
legislature was cognizant of the fact even before a permission is revoked or
modified, planning permissions may have been acted upon and works
may have commenced and to deal with such cases, the legislature has
drawn a balance through the proviso.
41. In our opinion, the position in law empowering the planning
authority to invoke Section 51 is absolutely clear as seen from the
provisions of sub-section (1) of Section 51. It is only when the objected
development is in some manner affecting the development plan invoked
or being prepared, which is likely to frustrate the object of the
development plan, it is only on such circumstances, the authority and
Page 41 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
42 wp [email protected]
power under sub-section (1) of Section 51 can be invoked to take steps to
revoke the occupation certificate. It is only in these circumstances, the
planning authority would assume jurisdiction to initiate such action by
following the procedure in law to revoke the occupation certificate and
not for any other reason which is alien and not recognised under Section
51 of the MRTP Act. The facts of the present case clearly demonstrate
that none of the requirements as sub-section (1) of Section 51 were
attracted so as to invoke such powers to cancel the Occupancy Certificate
granted to the petitioner's premises. In these circumstances, the
impugned order is patently illegal.
42. There is yet another question as to whether it was permissible for
the municipal corporation to issue a Conditional Occupancy Certificate in
respect of the petitioner's premises. In our opinion, the municipal
corporation was not in a position to justify anything either under the
MRTP Act or under the DCR framed by CIDCO that it was permissible
for the CIDCO to issue a conditional Occupancy Certificate of the nature
as issued in the present case. Thus, issuance of a conditional occupancy
certificate itself was unjustified.
Page 42 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
43 wp [email protected]
43. In the light of the above discussion, the petition needs to succeed.
It is accordingly allowed in terms of the following order:-
ORDER
i. The impugned order dated 27 December, 2016 passed by the Municipal Commissioner of the respondent - Navi Mumbai Municipal Corporation cancelling the Occupancy Certificate and the revised Commencement Certificate is quashed and set aside. ii. It is declared that condition no.4 as incorporated in the Occupancy Certificate dated 09 February, 2012 issued in respect of the petitioner's premises is illegal and was incorporated without any authority in law. iii. As a consequence of the above orders, the Municipal Corporation is prohibited from initiating any coercive action under the impugned order dated 27 December, 2016 under notices issued under Section 53(1) of the MRTP Act.
iii. Rule is made absolute in the above terms.
iv. No costs.
Order in Writ Petition No. 1184 of 2017
44. In view of the above judgment and order passed by us on Writ Page 43 of 44
-------------------------
::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::
44 wp [email protected] Petition No. 1374 of 2017, this petition also needs to succeed. It is allowed in terms of judgment and order passed on the said petition. No costs.
[KAMAL KHATA, J.] [G. S. KULKARNI, J.] Page 44 of 44 ------------------------- ::: Uploaded on - 04/05/2023 ::: Downloaded on - 05/05/2023 15:02:27 :::