Bombay High Court
Classique Associates And Ors vs Kamlakar Motiram Satve And Anr on 9 April, 2021
Author: G. S. Kulkarni
Bench: Chief Justice, G. S. Kulkarni
This Order is modified/corrected by Speaking to Minutes Order dated 02/06/2021
907-IA-ST-98058-2020.docx
pvr
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION STAMP NO. 98058 OF 2020
IN
PUBLIC INTEREST LITIGATION NO. 131 OF 2008
Classique Associates & Anr. .. Applicants
In the matter between:
Kamlakar Motiram Satve & Anr. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
---
Dr. Milind Sathe, Senior Advocate with Mr. Chetan Kapadia & Ms.
Falguni Thakkar i/by DSK Legal for applicants.
Mr. P. P. Kakade, Government Pleader with Smt. R. A. Salunkhe, AGP for
State.
Ms. Kiran Bhagalia with Mr. Mushraf Shaikh for MMRDA.
Mr. Vinod Mahadik for respondent No.4 - MCGM.
Mr. Mihir Desai, Senior Advocate with Mr. Mihir Joshi for petitioner in
PIL/21/2020.
---
C0RAM : DIPANKAR DATTA, CJ &
G. S. KULKARNI, J.
DATE : APRIL 09, 2021
PC :
1. The proceedings of the above public interest litigation are
more than a decade old, with a chequered history. There are number of
issues raised by the PIL petitioners. Such issues pertain to the
1
::: Uploaded on - 10/05/2021 ::: Downloaded on - 06/09/2021 01:58:32 :::
This Order is modified/corrected by Speaking to Minutes Order dated 02/06/2021
907-IA-ST-98058-2020.docx
development of vast lands at Powai in Mumbai, known as the "Powai
Area Development Scheme" (for short 'PADS'). By the present interim
application the applicants who are the developers involved with the
PADS, are before the Court, seeking diverse reliefs inter alia for
extension of the time lines as set down by this Court and as undertaken
by the applicants to complete the construction of the different buildings,
which were to be utilized for public housing.
2. We note some antecedents:-
A batch of Public Interest Litigations [PIL No.131 of 2008
(Kamlakar Motiram Satve & Anr. Vs. State of Mahrashtra & Ors.; PIL
No.91 of 2008 (Rajendra Thacker Vs. State of Maharashtra & Ors.); PIL
no.21 of 2010 (Medha Patkar Vs. The State of Maharashtra ), came to be
moved before this Court, challenging the construction put up by the
applicants on 230 acres of Villages Powai and Tirandaz, under the
PADS. The reliefs prayed for, in such PILs were interalia of an inquiry to
be ordered with regard to the tripartite agreement dated November 19,
1986 executed between the State of Maharashtra, Mumbai Metropolitan
Regional Development Authority (MMRDA) and the developers. The
grant of land (State largesse) was made for the planning and
development of the said two villages for which the MMRDA was
designated as the planning authority. The major element of the project
was to make available affordable housing. There were six lease
agreements all dated November 19, 1986 executed between the
MMRDA and the developers (being the constituted attorney's of the
land owners). There were also exemption orders under Section 20 of
the Urban Land (Ceiling and Regulations) Act (for short 'ULC Act')
dated February 12, 1987 qua the lands in question.
2
::: Uploaded on - 10/05/2021 ::: Downloaded on - 06/09/2021 01:58:32 :::
This Order is modified/corrected by Speaking to Minutes Order dated 02/06/2021
907-IA-ST-98058-2020.docx
3. The contention of the PIL petitioners, was that of the
tripartite agreement, being grossly breached by the developers. The PIL
petitioners also prayed that exemptions granted under the ULC Act be
ordered to be revoked and the lands be resumed by the MMRDA. There
was also a prayer for appropriate civil and criminal action to be taken
against the officers and employees of MMRDA, alleging collusion with
the developers.
4. A co-ordinate Bench of this Court (Coram: Mohit S.Shah,
C.J. and Mrs.Roshan Dalvi, J.) passed an extensive interim order dated
December 22, 2011 on these PILs, interalia noting Clauses 6, 7(iii), 8(i),
8(ii)(iii), 9(b), 12 & 13, of the tripartite agreement which was stated to
be breached. The Court observed that there was a breach and non-
compliance of the agreement by the developers. It was observed that
there was 'lot of substance' in the petitioners contention, that the
Government officers, in collusion with the developers had turned a
Nelson's eye, to the gross violations of the tripartite agreement by the
developers, which resulted in the aggrandizement of the developer
alone. The Court observed that some actions also smacked acts of
corruption, namely in not heeding to the report of the Metropolitan
Commissioner of the MMRDA dated February 14, 2008 and instead
calling upon the developers to deposit a paltry sum of Rs.3 crores, for
the massive construction put up by them in violation of the terms of the
tripartite agreement. The Court observed that it would rather direct
corrective action in public interest, so that those who are entitled would
get affordable housing, namely flats of the specified size of 40 and 80
sq.meters, rather than to take a punitive action in the PIL petitions,
leaving the petitioners free to take up the issue of corruption in criminal
3
::: Uploaded on - 10/05/2021 ::: Downloaded on - 06/09/2021 01:58:32 :::
This Order is modified/corrected by Speaking to Minutes Order dated 02/06/2021
907-IA-ST-98058-2020.docx
prosecution, against errant public officers and the developer. On such
premise, the Court passed the following order:-
"53. Hence, following order.
(a) The petitioners and the developer as also the
Metropolitan Commissioner of the MMRDA shall prepare a
statement of all the buildings and structures put up by the
developer in the Powai ADS alongside their names and
description and the numbers and area of the units/flats therein
within 4 weeks from today.
(b) The petitioners, the developer and the Metropolitan
Commissioner of the MMRDA shall prepare a plan showing the
vacant areas of the plot under the Powai ADS, where further
buildings may be constructed, within 4 weeks from today.
(c) If the parties are unable to work jointly they would be
entitled to work individually in terms of (a) and (b) above.
(d) The developer shall not put up any further construction
of whatsoever nature on the remainder of the plot under the
Powai ADS before specifying the vacant lands and the buildings
that can be constructed thereupon as per the statement and plan
mentioned in clauses (a) and (b) above and shown to Court.
(e) The developer shall be entitled to commence any further
construction only after obtaining the specific permission of this
Court in that behalf and subject to the sanctioned plans of the
MMC.
(f) Such construction shall be only of 1511 flats of 40 sq.
mtrs 1593 flats of 80 sq. mtrs without any amalgamation,
exception, or further allowance.
(g) No two flats shall be sold to the same person or any
member of her/his family, being her/his spouse and children.
(h) The developer shall sell to the State Government from
such construction such of the flats or units as would represent
15% of the total FSI of the total plot consumed under the
development @ Rs.135/- per sq. ft. and the State Government
shall offer those flats to be purchased by the employees of the
State Government at the aforesaid rate in a transparent manner.
(i) After constructing and showing the Court the total
number of units or flats constructed for residential purpose as
initially required under the Powai ADS and after offering to sell
the flats as directed in clause (h) above, the developer shall
submit a report of such construction and sale to Court with a
copy to the Petitioners in all the above Petitions, the MMRDA,
the State Government and the MMC.
(j) The Developer shall thereafter be entitled to put up any
further construction as per law.
(k) The compensation for the breaches of the tripartite
agreement claimed by the MMRDA shall be determined in the
appropriate forum.
(l) The petitioners may file any private criminal complaint
for any offence committed by the developer or any of the public
4
::: Uploaded on - 10/05/2021 ::: Downloaded on - 06/09/2021 01:58:32 :::
This Order is modified/corrected by Speaking to Minutes Order dated 02/06/2021
907-IA-ST-98058-2020.docx
officers of MMRDA or the State Government in the appropriate
Court.
(m) All the writ petitions shall stand over to 29 th March 2012
for placing on record the statement and plan as directed in
clauses (a) and (b)."
5. The applicants/developers accepted their obligations to
undertake the development. The obligations primarily were three fold:
firstly to hand over aggregate area of 17,146.05 sq.mtrs. to the State
Government; secondly to construct 887 flats of 80 sq.mtrs. each; and
thirdly to construct 1511 flats of 40 sq.mtrs. each in the PADS.
6. Further to the above orders passed by this Court, Civil
Application no.36 of 2017 came to be filed by M/s.Lake View
Developers and others on the ground that 666 flats admeasuring about
80 sq.meters which were amalgamated flats of 40 sq.meters, were also
in existence, however, none of these 666 flats were included either in
40 sq.meters flats or the 80 sq.meters flats. By an order passed by a co-
ordinate Bench of this Court (Coram Dr.Manjula Chellur, CJ. &
N.M.Jamdar, J.) on August 22, 2017 a Committee came to be
appointed, to undertake physical verification of the units admeasuring
80 sq.metres, to verify and ascertain the availability of the requisite
number of flats as noted in the Court's order dated February 22, 2012.
In such proceedings on behalf of the developers, an affidavit of one
Mr.Niranjan Hiranandani dated September 24, 2017 was placed on
record on behalf of the developers, interalia stating that the developers
proposed to complete the construction of the requisite number of 40
sq.meters and 80 sq.meters flats, as directed by this Court, in its order
dated February 22, 2012, in a phased manner starting from December,
2017 as set out in the `Chart' annexed to the said affidavit as Exhibit-A.
The developers furnished an undertaking to the Court as recorded in
paragraph 7 of the affidavit, to complete the construction of the desired
5
::: Uploaded on - 10/05/2021 ::: Downloaded on - 06/09/2021 01:58:32 :::
This Order is modified/corrected by Speaking to Minutes Order dated 02/06/2021
907-IA-ST-98058-2020.docx
number of 40 and 80 sq.meters flats. It was urged in paragraph 8 of the
affidavit that a grace period of six months be provided, in order to
address unknown contingencies. The relevant details qua the
completion of construction of the specific buildings as undertaken to
the Court, as contained in the chart (Exhibit A' to such affidavit) are as
follows:
A B C D E F G
Sr.n Building 2012-2013 2014 2015 2016 2017 Posse Estima
o. Name ssio/ ted
OC Amou
expe nt
cted require
Date d for
comple
ting
the
constr
uction
work
(Rs. In
Cr.)***
*
Tenements* Tenements** Tenements Tenements Tenements
40 80 Total 40 80 Total 40 80 Total 40 80 Total 40 80 Total
Sq. Sq.m Sq.m Sq.mt Sq.m
mtrs trs trs rs trs
... .. .. .. .. . .. .. .. . . . . . . . . . .
6 ATLANTI 298 269 298 2698 337 2954 448 39202 448 3923 A&B
S 82.3 2.36 9.55 .12 4.05 Wing
6 -294
flats-
Dec.
2017
&C
wing
-154
flats-
June
2018
7 HILLGRA 174 171 236 174 171 2361 174 171 2361 172 172 23039 172 172 2303 July-
NGE 11.1 1.11 1.11 .08 9.08 2018
1
8 MAPLE 192 855 192 8553 192 8553 231 10252 231 1025 Sep-
3.75 .75 .75 .47 2.47 2018
9 CASTLE 288 23448 507 4139 Dec-
ROCK .47 7.79 2020
TOTAL - 366 469 591 366 469 5914 366 608 6171 403 908 95942 403 1127 1139
B 47.2 7.22 4.41 .14 23.3
2 9
10 **SORR 61 2440 Dec-
ENTO 2020
11 ***REGE 104 4188 Dec-
NT HILL 7 0 2021
6
::: Uploaded on - 10/05/2021 ::: Downloaded on - 06/09/2021 01:58:32 :::
This Order is modified/corrected by Speaking to Minutes Order dated 02/06/2021
907-IA-ST-98058-2020.docx
7. In a subsequent order dated October 3, 2017 this Court
(Coram: Dr. Manjula Chellur, CJ. & N. M. Jamdar,J.) observed that the
Committee appointed by the Court had submitted its report on
September 16, 2016 followed by another report on September 18,
2017, which interalia recorded the details qua the flats of the different
categories and the amalgamated flats having area of 80 sq.meters. The
Court also recorded a statement as made on behalf of the developers
that out of 2200 flats of 40 sq.meters, 689 flats were constructed, as
per the directions of the Court in its order dated February 22, 2012,
whereas balance 1511 flats were yet to be constructed. It was observed
that also qua the 80 sq.metres flats, balance 887 flats had remained to
be constructed. In paragraph 12 of the order, the Court observed that
the buildings 'Atlantis', 'Hill Grange', 'Maple', 'Castle Rock', 'Sorranto'
and 'Regent Hill', flats/units both admeasuring 40 sq.meters and 80
sq.meters had remained to be completed. A tabular statement
submitted on behalf of the developers specifying the period within
which the construction of the balance flats of 40 sq.meters and 80
sq.meteres shall be completed, was taken on record. The Court
recorded that the developer would be required to comply, with not only
the terms of a tripartite agreement, but also the directions of the Court
as made in its orders dated February 22, 2012. In paragraph 18 of the
order, the Court issued directions, that all necessary compliances and
obligations for approval of plans and permissions in consonance with
Development Control Regulations, shall be submitted by the developers
with the respondent-Municipal Corporation on or before November 30,
2017. In paragraph 20 of the said order, it was observed that the
developer shall complete the construction of the balance 887 flats of 80
sq.meters each, within three years from June 1, 2018 that is upto May
7
::: Uploaded on - 10/05/2021 ::: Downloaded on - 06/09/2021 01:58:32 :::
This Order is modified/corrected by Speaking to Minutes Order dated 02/06/2021
907-IA-ST-98058-2020.docx
30, 2021. Considering the prayers as made in the present Interim
Application, it would be necessary to note the directions of the Division
Bench in paragraphs 20 to 23 which read thus:-
"20 We make it clear that the applicants shall complete the
construction of the balance 887 flats admeasuring 80 sq.m
within three years from 1st June 2018. In other words, the
applicants are bound by undertaking given in respect of the
building at Serial Nos.6, 7, 8, 9 and 10 as indicated in the
statement at Exhibit-A, both in respect of 40 sq.m and 80 sq.m.
So far as building at Serial No.11 known as "Regent Hill" we
cannot extend the time till December 2021 since we are of the
opinion that within three years from 1 st June 2018, all the
remaining construction of units/flats either 40 sq.m or 80 sq.m
must be completed.
21. Similarly, the undertaking in respect of the Government
Quota so far as the compliance with regard to the flats to be sold
in terms of judgment dated 22 nd February 2012 as clarified by
our order dated 22nd August 2017, we make it clear that apart
from the constructed area already handed over to the
Government, remaining obligation, the possession of required
balance area to be sold to the State Government has to be
completed, in terms of the undertaking on or before 31 st
December 2018.
22. We make it clear that if the applicants fail to comply with
any of the terms and conditions stated above, they shall
construct additional 10% of the remaining flats to be
constructed which remain incomplete as on 1st June 2021.
23. The very same committee which is already constituted
shall inspect the completion of the buildings in terms of our
directions and also the statement filed at Exhibit-A. The
Committee shall report to the Court once in six months
regarding the progress.
24. So far as prayer in Civil Application No.37 of 2017, for
the time being, we are of the opinion the sale of 207 flats can be
permitted through one-man committee headed by Justice S.
Radhakrishnan (Former Judge of this Court), it would be just
and proper to direct the applicants to open a Joint Account in
the name of the applicants viz. (1) M/s Classique Associates, (2)
M/s HGP Community Pvt.Ltd, and so also the Prothonotary and
Senior Master of the High Court. Whenever sale proceeds in
8
::: Uploaded on - 10/05/2021 ::: Downloaded on - 06/09/2021 01:58:32 :::
This Order is modified/corrected by Speaking to Minutes Order dated 02/06/2021
907-IA-ST-98058-2020.docx
respect of 207 flats is received, the same shall be deposited in
the above joint account.
25. From the sale proceeds deposited in the joint account as
stated above, the Income tax payable on the sale of 207 flats has
to be paid to the Department of Income tax. The charges payable
to the Corporation for the sanction of the plan and permission
for the construction of balance 40 - 80 sq.m flats shall be paid
from the sale proceeds."
8. On the above conspectus, the applicant-developer is before
the Court interalia praying that the delay in undertaking constructions
of the 'A' and 'B' Wings and the 'C' Wing of Atlantis building be
condoned, and with further prayers that the timelines for completing
the construction of 'A", 'B', 'C' and 'D' wings of the building 'Castle Rock',
'A' to 'E' wings of 'Regent Hill' and of the building 'Sorrento' be
extended. The prayers as made in the present interim application read
thus:-
"(a) that this Hon'ble Court be pleased to condone the delay
by extending time for completing the construction of 'A' & 'B'
wings and 'C' wing of Atlantis building comprising of 448
number of flats of 80 sq.mtrs. to March 2018 and February 2019
respectively;
(b) that this Hon'ble Court be pleased to extend the
timelines for completing the construction of:
i. 'C' & 'D' wings of Building Castle Rock till 30 th
June,2021 and 'A' & 'B' Wings of Building Castle Rock till
30th January,2022 (instead of December,2020);
ii. the Building Regent Hill, Wings A & B, C, D & E
till 30 January,2023 (instead of 31st May 2021);
th
iii. The Building Sorrento till 15th June, 2023
(instead of December,2020);
(c) for interim and ad-interim relief in terms of prayers (a)
and (b) above.;
9
::: Uploaded on - 10/05/2021 ::: Downloaded on - 06/09/2021 01:58:32 :::
This Order is modified/corrected by Speaking to Minutes Order dated 02/06/2021
907-IA-ST-98058-2020.docx
(d) for such other and consequential reliefs as this Hon'ble
Court may deem fit; and
(e) that the costs of this Application may be provided for."
9. This interim application was heard on some earlier
occasions. At the hearing of this application on March 3, 2021, Dr.Sathe,
learned Senior Counsel for the applicants tendered across the bar a
fresh statement setting out the different timelines within which the
applicants intend to complete the balance construction. Such Statement
was taken on record and marked "X" for identification. The time lines as
set out in the said statement read thus:-
PADS - Relevant dates
Buildings Completion No. of flats OC Extension Prayer
/OC Received Prayed for Clause
estimated
40 sq.mtrs. 80 sq.mtrs.
date as per
the
Affidavit
dated
24.9.2017
filed in this
Hon'ble
Court
Atlantis - A December 294 28.03.2018 - (a)
& B Wings 2017
Atlantis-C June 2018 154 13.02.2019 - (a)
Wing
Hill Grange July 2018 172 172 19.06.2018 - -
Maple September 231 - 24.07.2018 - -
2018
Castle December - 224 26.11.2020 - -
Rock-C & D 2020
Wings
Castle December - 284 - 30.01.2022 (b)(i)
Rock-A&B 2020
Wings
Regent May 2021 1021 - - 30.01.2023 (b)(ii)
Hill- A, B., (as per the
C, D & E Order
10
::: Uploaded on - 10/05/2021 ::: Downloaded on - 06/09/2021 01:58:32 :::
This Order is modified/corrected by Speaking to Minutes Order dated 02/06/2021
907-IA-ST-98058-2020.docx
wings dated
03.10.2017
)
Sorrento December 88 - - 15.06.2023 (b)(iii)
2020
Total 1512 1128
10. In our order passed on March 3, 2021, we reconstituted the
`three member inspection committee' (one of the members of the
committee Mr.C.Y.Khandare had retired), so that the committee re-
inspects the flats and verify as to the compliance of the undertaking of
the applicants as made to the Court, and the compliance of the terms
and conditions of the tripartite agreement. We directed the Committee
to place its report on record within two weeks of the said order, when
we would consider the prayers as made by the applicants. In paragraph
7 of our order, we recorded a statement as made by Dr.Sathe, learned
senior counsel for the applicants that the applicants are ready and
willing to undertake additional construction to the extent of 10% of
incomplete flats as on June 1, 2021, in terms of the order dated October
3, 2017, should the prayers for extension as made in the application are
granted by this Court.
11. In pursuance of our above directions, the Committee
inspected the construction. A report dated March 16, 2021 is filed in
the proceedings. The inspection report needs to be extracted which is
as follows:-
"Subject: To visit project site and conduct survey and inspection to
ascertain chart marked 'X' for identification.
Ref.: Hon'ble High Court direction dated 03/03/2021.
Interim application (st) No.98058 of 2020
11
::: Uploaded on - 10/05/2021 ::: Downloaded on - 06/09/2021 01:58:32 :::
This Order is modified/corrected by Speaking to Minutes Order dated 02/06/2021
907-IA-ST-98058-2020.docx
with
Interim application (st.) No.98072 of 2020
in
Public Interest Litigation No.131 of 2008
As per direction of Hon'ble High Court order dated 03.03.2021,
the following three members Committee reconstituted to visit project
site and conduct survey and inspection to ascertain the figures
indicated in the chart 'X' submitted by applicants. A report to that
effect shall be placed before Hon. Court two weeks.
(1) Executive Engineer, Building proposal Department, Eastern
Suburbs, 'S' Ward.
(2) Deputy Secretary, Urban Development, Mantralaya.
(3) Senior planner, Town and Country Planning Division, MMRDA.
Due to ongoing Maharashtra Assembly Budget session 2021,
Deputy Secretary, UD are not available during working days.
Therefore, joint site visit was arranged on 14th March 2021, Sunday at
10.00 a.m.
Initially, matter was discussed in brief in the office of
Ex.Engineer (Building proposal) E.S. 'S' Ward, at 10.00 a.m.
Thereafter, joint site visit carried out at Powai Area Development
Scheme from 11.30 a.m. to 4.30 p.m.
Since Hon. Court directed to ascertain the information
submitted by Applicant in terms of no. of flats, therefore, we all relied
on approved plans issued by MCGM Planning Authority. Accordingly,
the said last approved OC/amended plans of all buildings mentioned
in Chart 'X' were ascertained by inspecting randomly no. of flats on
each floor through Staircase/Lift lobby.
Accordingly inspection report is prepared in tabular form as
enclosed herewith as Annexure 'Y' which is summarised as under,
a) For buildings i.e. Atlantis (Wings A, B, C), Hill Grange, Maple,
Castle Rock (wings C&D) - In this case, Occupation Certificate are
already issued, flats were ascertained as mentioned above as reported
in Annexure 'Y' The building Hill Grange is presently occupied by
Covid Institutional Quarantine Centre.
b) For buildings Castle Rock (wings A & B), it is observed that
Castle Rock (Wings A & B) is almost in completion stage. Plumbing,
electric work is found in progress.
c) In building, Regent Hill (Wing A, B, C, D, & E). It is observed
that in Regent Hill- Wings A, B.C, D & E, the RCC works is 100%
completed, Internal plaster in flats is at completion stage. For wings A
& B Overhead Water Tanks work completed, Wings C, D & E Overhead
12
::: Uploaded on - 10/05/2021 ::: Downloaded on - 06/09/2021 01:58:32 :::
This Order is modified/corrected by Speaking to Minutes Order dated 02/06/2021
907-IA-ST-98058-2020.docx
Water Tank work in progress. No. of flats shown in Chart 'X'
ascertained and reported I Annexure 'Y'.
d) As regards, building Sorrento, plinth work is found in progress.
It is concluded from site that information submitted by
Applicant in the form of Chart Marked 'X' (Annexure-'X') is found
correct, which is summarised as under:-
Building No.of flats as per No. of flats to No. of flats, which Plinth works of
sanctioned plan which occupation are structurally building under
issued certificate issued completed, pending progress
plumbing, electrical,
construction of OWT
etc.
(1) (2) (3) (4) (5)
40 sq.m 80 sq.m 40 sq.m 80 sq.m 40 sq.m 80 sq.m 40 sq.m 80 sq.m
Atlantis 294 294
Wings A&B
Atlantis Wing 154 154
Hill Grange 172 172 172 172
Maple 231 231
Castle Rock 284 284
Wings A&B
Castle Rock 224 224
Wings C&D
Regent Hill 1021 1021
wings A,
B,C,D & E
Sorrento 88 88 (as
per
approve
d plan)
Total 1512 1128 403 844 1021 284 88 -
Submitted please.
Shri.Vijay Chaudhari Shri.Lotan Ahire Shri.Sanmukh Desai
Deputy Secretary Executive Engineer, Senior Planner,
Urban Development, Building Proposal, Eastern Town and Country Planning
Mantralaya Subs, 'S' Ward Division, MMRDA"
13
::: Uploaded on - 10/05/2021 ::: Downloaded on - 06/09/2021 01:58:32 :::
This Order is modified/corrected by Speaking to Minutes Order dated 02/06/2021
907-IA-ST-98058-2020.docx
12. In the memo of the interim application the applicants have
set out the reasons for delay in achieving the completion of the
construction, as per the applicants' undertaking to the Court. The
applicants have set out such reasons qua each of the buildings. In
regard to the building Atlantis, the applicants have stated that
construction of A to C wings was completed. An occupation certificate
for 'A' and 'B' wings was received on March 28, 2018, and for the 'C'
wing it was received on February 13, 2019. In so far as the building Hill
Grange is concerned, the applicants have stated that construction of the
building comprising of 172 flats of 40 sq.meters and 172 of 80
sq.meters in aggregate 344 flats was completed, as also an occupation
certificate was received on June 19, 2018. As regards the building
Maple, the applicants have stated that construction comprising of 231
flats of 40 sq.meters is completed as also an occupation certificate is
received on July 24, 2018. In regard to the building Castle Rock, it is
stated that the applicants are constructing 224 flats in C & D wings and
an occupation certificate qua such construction is expected to be
received by June 30, 2021, and for 284 flats in 'A' and 'B' wings an
occupation certificate is expected to be received by January 30, 2022. In
regard to the building Sorrento, which would house 88 flats of 40
sq.metrs, it is stated that the applicants have obtained an IOD on June
26, 2018. It is stated the applicants have obtained amended IOD on
August 27, 2019, January 14, 2020 and July 21, 2020. Thereafter,
commencement certificate was obtained on October 23, 2018 namely
plinth CC and the last such CC being received in July 27, 2020 [CC is
re-endorsed upto plinth i.e. for work upto top of stilt (i.e. including the
extended basement)]. It is stated that in regard to such building, the
applicants, are taking further steps to undertake construction. However,
the fact remains that the construction admittedly has not progressed
14
::: Uploaded on - 10/05/2021 ::: Downloaded on - 06/09/2021 01:58:32 :::
This Order is modified/corrected by Speaking to Minutes Order dated 02/06/2021
907-IA-ST-98058-2020.docx
and it has come up only upto the plinth level, as stated by Dr.Sathe. In
so far as the building 'Regent Hill' is concerned which would house
1021 flats of 40 sq.meters, it is stated by the applicants that IOD was
issued on June 26, 2018. Also further IODs dated May 8, 2019 and
October 3, 2019 are stated to be issued. A commencement certificate
dated October 23, 2018 upto plinth was granted and further
commencement certificate was issued on April 4, 2019 for Wings A to C,
and last such commencement certificate was issued on November 4,
2019 (full CC granted for Wings D & E, comprising of 3 level basements
+ stilt + 1st to 23rd Upper floors). It is stated that the applicants have
taken steps to undertake construction and complete the same.
13. In paragraphs 4 to 6 of the application, the applicants have
set out the steps taken by them in part compliance of their obligation
under the orders passed by this Court. The applicants accordingly have
prayed for extension of the timelines to complete the construction of
buildings Castle Rock A, B, C & D wings, Sorrento and Regent Hill from
the present timelines of December 2020, December 2020 and May 2021
respectively to January 30, 2022 for Building Castle Rock A & B wings;
June 30, 2021 for building Castle Rock C & D wings, June 15, 2023 for
Building Sorrento; and January 30, 2023, for Wings A, B.C,D & E of the
building Regent Hill.
14. We have perused the explanation and the reasons as set out
in the memo of the application, notable amongst them are as set out in
paragraph 17 which are enumerated as, necessity of amending the
plans, delay in receiving the permissions/approvals from the concerned
authorities; changes in the development control rules in view of
introduction of DCPR 2034, which came into effect on November 13,
15
::: Uploaded on - 10/05/2021 ::: Downloaded on - 06/09/2021 01:58:32 :::
This Order is modified/corrected by Speaking to Minutes Order dated 02/06/2021
907-IA-ST-98058-2020.docx
2018. It is stated that in view of the DCPR 2034, the layouts which were
already sanctioned by the municipal corporation were required/directed
to be modified and resubmitted. It is stated that, in fact prior to such
new Development Control Regulations coming into force, the
Corporation had stopped accepting applications for approval of building
plans and had slowed down the procedure for approval of plans and
granting permissions. The detailed reasons on such count, causing a
delay are set out in paragraph 20(a) to (r). The applicants contend that
they have taken all possible steps for timely construction of the
buildings and except for such reasons not fully within their control, the
applicants could not meet the timelines. The applicants have stated that
set back was caused on various counts touching the construction activity
due to the current pandemic arising due to COVID 19.
15. On the above conspectus, we have heard Dr. Milind Sathe,
Mr. P. P. Kakade, learned Government Pleader for the State, Ms. Kiran
Bhagalia, learned Counsel for MMRDA, Mr. Vinod Mahadik, learned
Counsel for respondent No.4 - MCGM and Mr. Mihir Desai, learned
Senior Counsel for the petitioner in PIL/21/2020.
16. Having heard learned Counsel for the parties, at the outset,
we may note that admittedly the applicants had furnished an
undertaking to the Court for completion of such construction and
handing over of 40 and 80 sq.mtr. flats as directed by this Court in the
orders as noted by us above. The applicants are certainly bound by such
undertaking and the orders passed by this Court. Any breach of such
orders and the undertaking so furnished undoubtedly entail serious
consequences, as the law would mandate. However, considering the
circumstances as noted by us in the foregoing paragraphs and on
16
::: Uploaded on - 10/05/2021 ::: Downloaded on - 06/09/2021 01:58:32 :::
This Order is modified/corrected by Speaking to Minutes Order dated 02/06/2021
907-IA-ST-98058-2020.docx
hearing Dr.Sathe, although we are not fully convinced that all the
reasons as set out in the interim application justifying the delay in
complying their obligations should be accepted, however, we consider
it to be appropriate and in the interest of justice that the timelines as set
out by the order October 3, 2017, be extended as a last chance,
considering the fact that, it appears to be not in dispute that the
applicants have partly complied with their obligations as undertaken to
the Court as also some disturbance is caused due to the current
pandemic. We may, however, observe that although we propose to
extend the timelines the applicants shall remain under a mandatory
obligation cast on them in the order dated February 22, 2012 and the
order dated October 3, 2017, passed by this Court, and more
particularly obligations in paragraph 22 of the latter order; namely that
if the applicants fail to comply with any of the terms and conditions as
set out in orders, they shall construct additional 10% of the remaining
flats to be constructed which may remain incomplete. We clarify that
such directions of this Court shall remain undisturbed and shall
continue to operate. We accordingly pass the following order:-
ORDER
I In so far as prayer (a) is concerned, the same stands deferred for consideration at a later stage.
II We allow the prayer clauses (b)(i) and (b)(ii).
III In so far as prayer (b)(iii) is concerned, the applicants shall file a better affidavit explaining the reasons for the delay in commencement of construction.
17 ::: Uploaded on - 10/05/2021 ::: Downloaded on - 06/09/2021 01:58:32 :::This Order is modified/corrected by Speaking to Minutes Order dated 02/06/2021 907-IA-ST-98058-2020.docx IV All other conditions imposed by the earlier orders of this Court shall remain intact.
V. This Interim Application shall be listed once again on 9th June 2021.
(G. S. KULKARNI, J.) (CHIEF JUSTICE) 18 ::: Uploaded on - 10/05/2021 ::: Downloaded on - 06/09/2021 01:58:32 :::