Shri. Kailash Hari Patil vs The State Of Maharashtra Thr Its ... on 2 August, 2024

[Cites 14, Cited by 0]

Bombay High Court

Shri. Kailash Hari Patil vs The State Of Maharashtra Thr Its ... on 2 August, 2024

1. Both PIL Petitions are being disposed of by this common judgment, despite the petitioners in each petition being different, due to the similarity of the facts giving rise to these Public Interest Litigations (hereinafter referred to as "PIL Petitions") and the commonality of the subject matter.

2. The factual matrix giving rise to the first PIL Petition (PIL Petition No.43 of 2014) is as follows:

Respondent No.2, on 22nd September 2006, issued public notices in the Newspapers inviting co-operative societies to apply for allotment of plots of land situated at Virar Bolinj, Taluka Vasai, District Thane. Based on such public notices, respondent No.2 allotted plot No.13 to respondent Nos.5, 6 and 7 on 24 October 2006. On 6 January 2006, respondent No.1 executed the lease deed of plot No.13 in favour of respondent No.5. On 23 July 2009, respondent No.1 executed a sale deed of plot No.11 in favour of respondent No.6. On 24 September 2009, respondent No.1 executed lease deed of plot No.12 in favour of respondent No.7 and on 1 August 2009 6 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 ::: pil-43-2014 with connected-Final.doc the architect of respondent No.5 submitted a plan to respondent No.4 seeking permission to construct proposed residential-cum-commercial/shop building. On 28 August 2009, respondent No.4 issued an assessment order qua plot No.13 and issued a commencement certificate. On 5 November 2009, respondent No.4 issued a stop work notice to respondent No.5. On 2 February 2010, respondent No.4 withdrew a stop work notice dated 5th November 2009.

3. On 21 December 2010, respondent No.1, along with two others, filed an application under the provisions of the Right to Information Act, 2005, seeking information in relation to development carried on by respondents Nos.5 to 7. On 19 January 2011, respondent No.2 furnished information to the petitioners which revealed that:

(a) The land was allotted exclusively for residential purposes and not for non-residential use;

(b) The land could not be transferred to any other person for a period of five years;

(c) The land was allotted with F.S.I.-1.

4. The respondent Nos.1 and 2, therefore, on 27 January 2011, along with two others, sent a communication to the 7 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 ::: pil-43-2014 with connected-Final.doc Chief Minister of Maharashtra, respondent No.2, the Collector and respondent No.3, pointing out that the plot allotted to respondent No.5 consisted of 22 members. However, respondent No.5 got a plan sanctioned for 27 flats and 11 shops. It was stated that the lease clearly provided that the land was allotted only for the bona fide use of members without residential land use. Therefore, the sanctioned plan of commencement certificate did not violate the lease deed and scheme of allotment of plots to the cooperative housing societies.

5. On 10 February 2011, respondent No.1 executed supplementary deeds in favour of respondent Nos.5 to 7, granting additional area of FSI measuring 920.59 square meters, 971.92 square meters, and 910.66 square meters, respectively. On 22 February 2011, respondent No.2 issued a communication to respondent No.5 contending that the plot was allotted to the co-operative housing society consisting of 22 members only for residential purposes. However, society obtained approval for a plan for 22 flats and 11 shops, which breaches the terms and conditions of the lease deed. On 16 March 2011, the Deputy Engineer, Konkan Division of 8 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 ::: pil-43-2014 with connected-Final.doc respondent No.1, submitted a note to the Executive Engineer communicating that the construction was up to ground plus four floors was completed, and respondent No.5 construction work was in progress. It is stated that prima facie construction was not in accordance with the layout plan.

6. Accordingly, respondent No.3, by its letter dated 19 April 2011, issued a notice to respondent No.5 under Sections 52, 53 and 54 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as "MRTP") alleging unauthorized development.

7. On 21 April 2011, respondent No.3 amalgamated plots Nos.11, 12 and 13 and granted composite development permission to respondent Nos.5, 6 and 7. According to the petitioners, permission indicates that respondent Nos.5 to 7 were constructing 21 flats, 12 shops and 36 offices in the wing constructed on plot No.11; 17 flats, 10 shops and 4 offices in the wing on plot No.12 and 19 flats, 12 shops and 36 offices in the wing of plot No.13. According to the petitioners, on 21 April 2011 respondent No.3 granted development permission over all three plots to construct 27 flats, 34 shops and 112 offices.

9 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 :::

pil-43-2014 with connected-Final.doc

8. On 27 April 2011, the Assistant Town Planner of respondent No.2 sought an explanation from the Estate Manager, Konkan Division of respondent No.1, as to whether it was legally possible to allow 50% of the F.S.I. to be used for commercial purposes on plot Nos.11, 12, and 13 allotted to respondent Nos.5 to 7. On 16 February 2011, respondent No.2 informed respondent No.3 that the land was allotted only for residential use.

9. On 24 October 2011, respondent No.2 communicated to respondent No.5 that 50% of the plot area could be permitted to be used for commercial purposes. On 20 December 2011, respondent No.3 granted revised development permission for amalgamated plot Nos.11 to 13. On 31 January 2012, petitioners issued notice through an advocate to the respondents setting out the facts mentioned in the PIL petition contending that the granting additional F.S.I. for the use of commercial purposes and issuance of commencement and revised certificate are in contravention of MRTP and Maharashtra Housing and Area Development (Disposal of Lands) Rules 1981 and the Development Control Regulations, 2001 for Vasai-Virar Sub-Region (MHADA). The issue was 10 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 ::: pil-43-2014 with connected-Final.doc raised by the local MLA thereafter. The concerned Tehsildar submitted a status report on 24 June 2013 indicating that plot Nos.11 to 13 were allotted to the private developer for residential-cum-commercial land use and two buildings of ground plus six floors to be constructed.

10. According to the petitioners, the information they received under the Right to Information Act, 2005 revealed that the built-up area, which was the subject matter of the development permission by order dated 21 April 2011 and 28 October 2011, was the same. Therefore, the petitioners on 7 January 2014 filed the first PIL Petition No.43 of 2014 seeking prayer for cancellation of grant of additional F.S.I. by order dated 10 February 2011 and further urging that development permission dated 21 April 2011, 28 December 2011 and 3 January 2013; order of amalgamation of plot Nos.11, 12 and 13 to respondent Nos.5 to 7 and part occupancy certificate on 9 April 2013 are liable to be quashed and set aside.

11. In pursuance to the notice issued by this Court, the respondents filed their affidavit-in-reply and contested the petition, contending that the grant of additional F.S.I to respondent Nos.5 to 7 was in consonance with policy 11 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 ::: pil-43-2014 with connected-Final.doc Resolution No.5988, which empowered respondent No.1 to issue no objection certificate (NOC) for construction of tenements by the co-operative societies on the plots owned by respondent No.1. Clause No.13 of said Resolution empowers respondent No.1 to distribute extra F.S.I. to the co- operative societies or other allottees who have their flats in the layout if such F.S.I. cannot be consumed by MHADA all tenements subject to payment of minimum 25% premium.

12. Respondent No.3 filed an affidavit-in-reply and contested the petition by contending that based on NOC granted by respondent Nos.1 and 2 to respondent No.3, it was within its power to sanction the plan and to grant part OC as the use of additional F.S.I. by respondent Nos.5 to 7 was in consonance with Development Control Regulations (DCR) of respondent No.3. It is submitted that use of premises for commercial purpose in residential area is as per the provisions of DCR and development plan. It is stated that plots Nos.11 to 13 are part of the entire larger layout prepared by respondent No.1.

13. Respondent No.7 filed its reply and prayed for the dismissal of the petition on the grounds that the petition was not a bona fide PIL, that it suffers from the vice of delay and 12 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 ::: pil-43-2014 with connected-Final.doc laches and non-joinder of the necessary party, and on the alternative remedy as well petition can not be maintained. It was stated that petitioner Nos.1 and 2 are politically active, having connections with political parties. The petition is filed with an object to gain political mileage and to seek publicity. On the point of delay and laches, it was stated that development permission dated 21 April 2011 has been challenged by a petition filed in the year 2014 after the construction of the building was almost complete. It is submitted that without explanation of delay and laches, the petition deserves to be dismissed. It is submitted that the averments made in the petition make it clear that on the date of construction, the ground plus three floors of the building was completed. The developer has already created third-party rights in respect of tenement constructed over all the amalgamated plots. It is also submitted that persons other than members of co-operative society in whose favour third party interest was created and possession had been delivered, many of whom had a mortgaged their properties to different financial institutions, have not been joined as a party to the PIL petition. Furthermore, it is submitted that petitioners have alternative statutory remedies to challenge the grant of 13 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 ::: pil-43-2014 with connected-Final.doc additional F.S.I., order of amalgamation of plots and grant of part occupancy certificate. Therefore, the present PIL petition is not maintainable.

14. On 11th April 2022, this Court noted the preliminary objection raised on behalf of respondent No.7 as to the maintainability of a petition challenging the bona fide of petitioners along with inordinate delay and latches as well as non-joinder of necessary parties. This Court granted the last opportunity to the petitioners to file a rejoinder in order to persuade this Court to hold that the petition is maintainable, overruling objections raised by respondent No.7.

15. On 16 June 2012, the petitioner in PIL No.104 of 2022 filed the present petition challenging NOC issued by respondent No.3, granting 15% commercial use and 0.75 F.S.I. to respondent No.5 to 14 therein; revised development permission granted respondent No.4 in favour of respondent Nos.5 to 14; and the letters of allotment issued by respondent Nos.2 to 3 in favour of respondent Nos.5 to 15.

16. The respondents contested PIL Petition No.104 of 2022 by filing their reply. The private respondent Nos.6 and 7 (Housing Societies) again raised the plea of absence of bona 14 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 ::: pil-43-2014 with connected-Final.doc fide intention in filing PIL by alleging that one of the petitioners in PIL No.43 of 2014 is the legal advisor and member of Agri Sena of which the petitioner in PIL No.104 of 2022 is the president. It is contended that the petition is politically motivated. This Court, by order dated 20 June 2022, directed the petitioners in PIL No.43 of 2014 to deposit Rs.1 lakh to show their bona fide based on an objection raised by respondents on the point of delay and laches. It was stated that the petitioner, on his own, showed that he was aware of the allotment process and allotment in 2011, therefore, the PIL Petition filed in 2022 after the completion of construction and receipt of the part occupancy certificate, in the absence of sufficient explanation, is barred by the principle of unexplained delay and laches. The objection of non-joinder of necessary party was again raised, contending that societies have already created third-party rights and interests in respect of the constructed portion, and such third parties have mortgaged their properties to various financial institutions. All such persons have not been joined as parties to the present proceedings. It is stated that earlier PIL Petition No.43 of 2014 was pending; therefore, fresh PIL Petition seeking similar reliefs on similar grounds deserves to be dismissed. 15 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 :::

pil-43-2014 with connected-Final.doc

17. The private respondent Nos.12 to 14 (Housing Societies) filed their reply raising similar objections raised on behalf of respondent Nos.5 to 7. It is stated that PIL Petition No.104 of 2022 has been filed after the completion of pleadings in all respects in PIL Petition No.43 of 2014, taking a clue from the contention raised by respondents. It is stated that the advocate for the petitioners in PIL Petition No.43 of 2014 shares the same office as the advocate appearing for the petitioner in PIL No.104 of 2022. It is stated that the eligibility of members of the housing society was scrutinized by respondent No.2, and thereafter, plots were allotted to the respective societies. It is further submitted that the conversion of 15% of residential F.S.I. into commercial F.S.I. was in exercise of power under clause 17(B) of Resolution No.5998 dated 9th January 2004, for which the Chief Officer of respondent No.2 empowered, subject to payment of premium.

18. Mr. Warunjikar, learned advocate for the petitioners, urged that MHADA introduced the scheme in the year 2006 for the benefit of the middle-income group who have income between Rs.10,000/- to 15,000/- per month and only one plot bearing Plot No.1 was allotted for higher income group having 16 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 ::: pil-43-2014 with connected-Final.doc income above Rs.15,000/-. However, allotments were made in favour of those who do not fall under the middle-income or higher-income groups category. Reservation prescribed under Rule 13 of the Maharashtra Housing and Area Development (Disposal of Lands) Rules 1981 has not been complied with while allotting plots in favour of respondents-housing societies. The housing scheme sanctioned by the MHADA was meant only for residential purposes; however, subsequently, land user has been permitted for commercial purposes without following due process of law. Many individuals who were allotted premises possess houses in the same area. Therefore, no objection certificates for commercial use granted by respondent No.3 in favour of respondent Nos.5 to 14 deserve to be quashed and set aside as such certificates are contrary to provisions of the Maharashtra Housing and Area Development Act, 1976 (hereafter referred to as "MHADA Act").

19. Per contra, Mr. Patil, learned advocate appearing for allottee housing societies urged that the allotments made in favour of housing societies are of the year 2008 to 2009, however, first petition has been filed in the year 2014 and 17 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 ::: pil-43-2014 with connected-Final.doc second petition is filed in the year 2022 without explaining delay/laches. Inviting our attention to the dates and events enumerated in the affidavit-in-reply filed by the housing societies, he submitted that both petitions deserve to be dismissed only on the grounds of delay/laches. He submitted the Resolution No.5998 dated 9 January 2014, Resolution No. 6260 dated 4 June 2007 and Resolution No.6422 dated 7 August 2009 authorized MHADA to permit allottee societies to utilize F.S.I. up to 15% for commercial use. He submitted that no objection certificates granted by the MHADA have been merged with sale deeds. Without a challenge to sale deeds, the petitions challenging no objection certificates are not maintainable. He submitted that after the allotment of the plot in favour of the society, third-party rights are created in favour of individuals who are not members of the society. In the absence of adding such persons as respondents in the petitions, the petitions in their present form are not maintainable on the ground of non-joinder of necessary parties. He submitted that Plot Nos.11 to 13 is already a subject matter of the petition in PIL Petition No.43 of 2014 and, therefore, a fresh petition seeking the same reliefs in 2022 is not maintainable. Moreover, a petition filed in 2022 18 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 ::: pil-43-2014 with connected-Final.doc about Plot Nos.1, 2 and 4 to 8 need not be entertained on the grounds of delay/laches.

20. Mr. Lad, learned advocate for respondent Nos.2 and 3 submitted that respondent No.2 has allotted lands in favour of housing society as per existing policy. The MHADA has already scrutinized the eligibility of members of housing societies, and there is no illegality in the process of allotment.

21. Mr. Gole, learned advocate for respondent No.11, submitted that the allotment of plots in favour of housing societies is as per the Rules under the MHADA Act which was made after taking into consideration relevant provisions of law. Entertaining the petition in relation to allotment made in the year 2008 and 2009, in absence of explanation about delay/laches, would cause injustice to the individuals in whose favour residential and commercial units are allotted by the societies after permission from the MHADA, Municipal Corporation and other authorities. It is submitted that the individual allottees have mortgaged their flats in favour of the banks and have already created third-party rights. He, therefore, prayed for the dismissal of the petitions.

22. We have heard the learned counsel for the parties and 19 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 ::: pil-43-2014 with connected-Final.doc considered the rival contentions. At the outset, it is necessary to address the issue of delay and laches, a ground urged by the respondents in opposition to both petitions. The 2014 Petition concerns Plot Nos. 11 to 13, while the 2022 Petition pertains to Plot Nos. 1, 2, 4 to 8, and 11 to 13. In the 2014 Petition, the petitioners have challenged the legality and validity of the grant of additional FSI, development permission, and the amalgamation and allotment of plots in favor of the housing societies. Therefore, in the context of the issue of delay in filing the petitions, the following facts must be mentioned:

a) On 6 March 2009, the allotment letter was issued in favour of respondent No.12 - Society.

b) On 22 October 2009, a lease deed was executed between respondent No.2 and respondent No.12 for Plot No.10.

c) On 2 February 2010, a commencement certificate was granted in favour of respondent No.12 for building construction.

d) On 30 June 2010, respondent No.4 granted respondent 20 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 ::: pil-43-2014 with connected-Final.doc No.12 a plinth certificate for the construction of a building.

e) On 25 October 2010, the owners of plots 11, 12, and 13 amalgamated their plots.

f) On 29 October 2010, respondent No.2 issued a communication allowing excess 0.75 F.S.I. in favour of respondent No.12.

g) On 14 December 2011, a supplementary lease deed was issued in favour of respondent No.12 for 0.75 F.S.I.

h) On 21 April 2011, respondent No.3 granted revised development permission for residential and commercial construction.

i) On 25 October 2011, respondent No.11 granted a no objection certificate (NOC) for utilizing 15% of the plot for commercial use.

j) On 25 April 2012, respondent No.12 executed a registered development agreement favouring M/s. Sai Rydam Realters Pvt. Ltd.

k) On 4 January 2013, the developer forwarded a proposal for revised development permission.

21 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 :::

pil-43-2014 with connected-Final.doc

l) On 13 April 2013, respondent No.2 consented to issuing a part occupation certificate.

m) On 2 August 2013, respondent No.2 issued a no objection certificate for mortgaging flats regarding respondent No.12-Society.

n) On 15 February 2014, MHADA issued a letter to respondent No.12 informing that there was a balance F.S.I. of 3407.5 sq. mtrs. Of these, 2896.44 sq. mtrs. could be used for residential purposes, and 511.14 sq. mtrs. could be used for commercial purposes.

o) On 14 March 2014, respondent No.1 permitted individual owners to obtain loans by mortgaging their units.

23. In light of the aforesaid facts, it is necessary to consider PIL Petition No.43 of 2014, which is concerning Plot Nos.11 to 13, which are amalgamated. Paragraph No.8 of the PIL Petition indicates that the petitioners applied for information under the Right to Information Act, 2005, concerning the subject matter of the petition. The petitioners themselves have stated that respondent No.2, by the letter dated 19 January 2011, furnished information indicating that the land 22 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 ::: pil-43-2014 with connected-Final.doc in question was allotted exclusively for residential purposes and not for non-residential purposes, and land has been allotted with F.S.I.-I. Thereafter, the petitioners made representation to the various authorities. Paragraph No.13 of the PIL Petition indicates that the Executive Engineer of respondent No.3 visited construction in dispute on 16 March 2011, and he found that slab work up to the fourth floor was completed and slab work on the fifth floor was in progress. Therefore, the petitioners in PIL Petition No.43 of 2014 were aware of the allotment of land and the purpose of allotment at lease on 19 January 2011. They were also aware of the progress of the construction in March 2011. However, they filed PIL Petition No.43 of 2014 on 7 January 2014. The petitioners have not explained the delay and laches in filing the present petition. In the absence of any explanation, this Court is not called upon to consider whether the explanation furnished by the petitioners is sufficient to condone the delay and laches in approaching the present PIL Petition.

24. It is well settled that writ jurisdiction under Article 226 of the Constitution of India is discretionary. Therefore, if a petitioner approaches the High Court under Article 226 of the 23 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 ::: pil-43-2014 with connected-Final.doc Constitution of India after unexplained delay, this Court can dismiss the petition without going into the merits of the matter.

25. In the case of Raja Jagdambika Pratap Narain Singh vs. Central Board of Direct Taxes & Ors. reported in AIR 1975 SC 1816, the Supreme Court, in paragraph No.13, observed as under:

"13. Even so, the journey of the appellant is beset with insurmountable hurdles. Article 226 is not a blanket power, regardless of temporal and discretionary restraints. If a party is inexplicably insouciant and unduly belated due to laches, the court may ordinarily deny redress. And if the High Court has exercised its discretion to refuse, this Court declines to disturb such exercise unless the ground is too untenable. To awaken this Court's special power gross injustice and grievous departure from well-established criteria in this jurisdiction, have to be made out. In the present case, long years have elapsed not only after the impugned orders but even after the High Court held the taxed income agricultural. The reason for the inaction is stated to be an illusory expectation of suo motu modification of assessment orders on representation by the party. The High Court has examined and dismissed the plea and consequentially refused relief. We do not think that in so refusing relief on ground of laches the High Court exercised its discretion arbitrarily or improperly. And the sorry story must thus close."

26. In the case of Durga Prasad vs. Chief Controller of 24 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 ::: pil-43-2014 with connected-Final.doc Imports and Exports and Ors. reported in AIR 1970 SC 769, the Supreme Court, in paragraph No.3, observed as under:

"3. It is well settled that the relief under Article 226 is discretionary, and one ground for refusing relief under Article 226 is that the petitioner has filed the petition after delay for which there is no satisfactory explanation."

27. Similarly, in the case of Municipal Council, Ahmednagar & Anr. vs. Shah Hyder Beig and Ors. reported in AIR 2000 SC 671, the Supreme Court vide paragraphs 17 and 18 held that in absence of any explanation as to inordinate delay in filing a writ petition, the High Court in its discretionary powers under Article 226 of the Constitution of India, can dismiss the writ petition on that ground alone without going into the merits.

28. In the case of K. V. Rajalakshmiah Setty & Anr.. Vs. State of Mysore & Anr., reported in AIR 1967 SC 993, the Supreme Court (vide paragraph 13), held that the appellants were guilty of laches because after the impugned order was passed in 1950, they should have filed writ petition within reasonable time thereafter. Merely because the Chief Engineer had espoused their cause and was writing letters from time to 25 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 ::: pil-43-2014 with connected-Final.doc time to the State Government to do something for them did not mean that they could sit quiet satisfied about their accomplishments.

29. In the case of Maharashtra State Road Transport Corporation vs. Balwant Regular Motor Service, Amravati & Ors., reported in AIR 1969 SC 329, the Supreme Court observed as under:

"It is well settled that the writ of certiorari will not be granted in a case where there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party. The principle is to a great extent, similar to though not identical with, the exercise of discretion in the Court of Chancery. The principle has been clearly stated by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd, Abram Farewall, and John Kemp , (1874) 5 PC 221 at p. 239 as follows:

"Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these 26 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 ::: pil-43-2014 with connected-Final.doc cases, lapses of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."

30. In the present case, the decision of the Privy Council in Lindsay Petroleum Company (supra), squarely applies.

31. As stated earlier, the petitioners have averred in paragraph No.8 of the PIL Petition that they got information regarding the allotment of land for residential purposes and permissible F.S.I on 19 January 2011. In furtherance of complaint filed by the petitioners, the Deputy Engineer of respondent No.3 visited the construction on Plot No.13 on 16 March 2011 where he found that slab work up to fourth floor was completed and slab work of fifth floor was in progress. However, the PIL Petition was filed only on 7 January 2014. If the petitioners were aggrieved, they should have filed a petition soon after getting knowledge about the purpose of allotment. Respondents Nos.12 to 14 had obviously spent a 27 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 ::: pil-43-2014 with connected-Final.doc lot of money on the construction, and it would be inequitable if a direction is now given for cancellation of allotment and building permission at such a belated stage.

32. In the facts of this case, we are of the opinion that the petitioners have approached this Court by way of PIL Petition No.43 of 2014 after an unexplained inordinate delay. It is pertinent to note that no explanation has been given by the petitioners for delay/laches. The petitioners, by their conduct of approaching this Court after unexplained delay, have put respondents Nos.5 to 7 in a situation where it would be unreasonable, inequitable and unjust to put them back to their original position before the construction of the residential and commercial buildings. Even assuming that the petitioners had a good case on merits, interfering at this late stage would now be inequitable and unjust. For this delay, the petitioners themselves are entirely to be blamed.

33. Whether the relevant standards and requirements have been met by MHADA and the Municipal Corporation is ordinarily for the concerned authorities to look into and not for this Court. This Court has to maintain judicial restraint and need not ordinarily differ from the opinion of administrators 28 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 ::: pil-43-2014 with connected-Final.doc unless there is a clear violation of law or something is shockingly arbitrary. It may be noted that the construction of the project started after the petitioners got knowledge about the purpose of allotment of the construction, and its progress was within the knowledge of the petitioners. Hence, in our opinion, PIL Petition No.43 of 2014 should be dismissed on the grounds of laches without even going into the merits.

34. In so far as PIL Petition No.104 of 2022 is concerned, the PIL Petition pertains to Plot Nos.1, 2, 4 to 8 and 11 to 13. As indicated earlier, PIL Petition No.43 of 2014 is in relation to Plot Nos.11 to 13. In PIL Petition No.104 of 2022, the petitioner is challenging the no-objection certificate granted by the authorities for the commercial use of the plots in question. It is evident that the impugned no-objection certificates are dated 25 October 2011, 26 September 2012, 11 August 2014, 31 March 2015, 15 April 2015 and 27 February 2019.

35. Moreover, the petitioner has challenged revised development permission without challenging original development permissions issued from 2011 to 2013. The revised development permissions are dated 16 January 2018, 29 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 ::: pil-43-2014 with connected-Final.doc 21 July 2018, 15 November 2018, 16 September 2019, 9 June 2021, and 29 October 2021. The letters of allotment in favour of the societies range from 2007 to 2011 and 2014 and 2015.

36. PIL Petition No. 104 of 2022 was filed on 16 June 2012. The explanation furnished in the PIL Petition, attempting to explain the delay, reads as under:

"32. The petitioner submits that there is no delay in filing this petition as the petitioner came to know about this scam in the year 2021 and subsequently, the petitioner has filed various application under RTI for the information of the said scheme and the cause of action for the petitioner has started from the date of receipt of the information sought under the RTI Applications and thereafter making the requisite representation and complaints."

37. As previously noted, construction on the plots proceeded openly. Other petitioners, claiming to be activists, filed an application under the provisions of the Right to Information Act, 2005, in 2011. Therefore, as indicated earlier, we believe the petitioner in the present PIL Petition should have filed it immediately upon the commencement of construction on the plots in question. The reason given in paragraph No. 32 is insufficient to explain the delay of more than ten years after the start and completion of construction.

38. Furthermore, third-party rights have already been 30 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 ::: pil-43-2014 with connected-Final.doc established in favor of allottees by the housing societies, with some of them having mortgaged their flats to financial institutions/banks. Neither the individual allottees nor the banks have been made parties to the petition.

39. Therefore, we are satisfied that it would be absolutely inequitable and unjust to grant relief in favour of the petitioner in PIL Petition No.104 of 2022.

40. The petitions are, therefore, dismissed. The cost of Rs.1,00,000/- deposited in this Court in pursuance of order dated 20 June 2022 shall be transmitted to Kirtikar Law Library, Mumbai.

41. Interim application(s), if any, shall stand disposed of.

(AMIT BORKAR, J.) (CHIEF JUSTICE)

42. After pronouncement of the judgment, learned counsel for the petitioners seek extension of interim relief restraining respondents from creating third party rights over subject matter. Since we have dismissed the PIL Petitions on the point of unexplained inordinate delay in approaching the Court, no 31 ::: Uploaded on - 05/08/2024 ::: Downloaded on - 10/08/2024 14:57:21 ::: pil-43-2014 with connected-Final.doc case for continuation of interim relief is made out. The prayer is, therefore, rejected.

 (AMIT BORKAR, J.)                             (CHIEF JUSTICE)




                               32
::: Uploaded on - 05/08/2024          ::: Downloaded on - 10/08/2024 14:57:21 :::

Unlock Advanced Research with PRISMAI

Bombay High Court