Bombay High Court
Dev Engineers vs The State Of Maharashtra on 12 October, 2023
Author: G.S. Patel
Bench: G.S. Patel
910-OSWP-782-2023.DOC
Wadhwa
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 782 OF 2023
Dev Engineers ...Petitioner
Versus
The State of Maharashtra & Ors ...Respondents
Mr Mukesh Vashi, Senior Advocate, with Amrendra Mishra, for the
Petitioner.
Mr Hemant Haryan, AGP, for the Respondent-State.
Ms Stefy Dias, i/b Umesh Mankapure, for Respondent No. 2-SRA.
Mr Anoop Patil, with Kunal Waghmare, i/b Sunil K Sonawane, for
Respondent No. 3-BMC.
CORAM G.S. Patel &
Kamal Khata, JJ.
DATED: 12th October 2023 PC:-
1. Rule. The Slum Rehabilitation Authority ("SRA") and Municipal Corporation of Greater Mumbai ("MCGM") waive service.
2. All affidavits to be filed in the Registry.
3. The developer was one of the bidders for a project that involved slum rehabilitation, i.e., the construction of rehab units Page 1 of 3 12th October 2023 ::: Uploaded on - 13/10/2023 ::: Downloaded on - 14/10/2023 02:37:04 ::: 910-OSWP-782-2023.DOC and, as an incentive, free sale units and in composition TDR. The project is complete. Possession of the rehab buildings has been delivered. Certificates of satisfactory completion are issued. It is at this stage that between the two planning authorities in question, the MCGM on the one hand which issued the tender, and the SRA which issued the Letters of Intent ("LoI"), there comes a third entity, namely an accounting agency, which queries at this late stage how the SRA could have issued the LoI that it did at page 50. At page 51 this LoI contains a statement of what is the maximum built up area permissible on the plot, what is the rehab built up area for FSI purposes, and what is the rehab component and what is the sale component ("TDR").
4. This is now sought to be queried and in fact is taken to the somewhat fantastic extent of suggesting that the initial Intimation of Disapproval ("IoD") for the entire project needs to be issued all over again although the project is over and is certified as complete. The claim now based on this accounting exercise is that the Petitioner has allegedly obtained FSI and therefore, TDR benefit, on components of construction that are said to be "free from FSI" such as stairwells, lift-wells and lobbies, etc. This is the allegation that is made and is to be found at page 86.
5. As a matter of administrative law, we do not know how the terms of a tender can be changed after the tender is complete and executed in all respects including the award of a tender and the certification of completion of the tendered project. Prima facie it is difficult to understand how such an order of retrospective correction Page 2 of 3 12th October 2023 ::: Uploaded on - 13/10/2023 ::: Downloaded on - 14/10/2023 02:37:04 ::: 910-OSWP-782-2023.DOC or corrigendum could be done or how any public authority can now be heard to say that there was "a mistake". Projects of the scale and size are not done furtively. The progress is constantly monitored including as to the consumption of FSI and whether construction is proceeding according to sanctioned plans.
6. Consequently, and for these brief reasons, while keeping all contentions open, we issue Rule. There will also need to be an interim order in terms of prayer clause (d) of the Petition at page 22 which reads thus:
"(d) Pending the hearing and final disposal of the present Petition, the effect and implementation of the Impugned Revised LOI dated 09.06.2022 bearing No. R-C/MCGM/0022/20171101/LOI be stayed forthwith."
7. Rule is expedited and is peremptorily returnable on 15th December 2023.
(Kamal Khata, J) (G. S. Patel, J) Page 3 of 3 12th October 2023 ::: Uploaded on - 13/10/2023 ::: Downloaded on - 14/10/2023 02:37:04 :::