Bombay High Court
Satyam Shivam Sundaram Co-Operative ... vs The State Of Maharashtra And 4 Ors on 15 March, 2021
Equivalent citations: AIRONLINE 2021 BOM 1523
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
PVR WPL-4626-20.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (LODG) NO.4626 OF 2020
Satyam Shivam Sundaram Co-operative
Housing Society Ltd. ...Petitioner
Versus
1.The State of Maharashtra
2. The Municipal Commissioner of Gr.Mumbai
3. The Deputy Chief Engineer
Building Proposal, R-Central Ward, MCGM.
4. The Chief Fire Officer
5. The Senior Police Inspector
6. The Assistant Commissioner
R/Central Ward. ...Respondents
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Dr.Birendra Saraf, Senior Advocate with Mr.Sanchit Bhogle, Mr.Yogesh
Patki, Mr.Pravin Singh and Ms.Mahi Lalkh i/b. Mr.Ashok Kumar Singh,
for the Petitioner.
Ms.Geeta Shastri, Addl. GP with Mr.Amit Shastri, AGP for the State.
Ms.Kiran Bhagalia with Mr.Musharaf Shaikh & Ms.Oorja Dhond i/b.
Aruna Savla, for MCGM.
Mr.Karl Tamboly i/b. Sagar Rane, for Developer (Nasar Associates)
----
CORAM : DIPANKAR DATTA CJ &
G. S. KULKARNI, J.
DATE: MARCH 15, 2021.
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1
PVR WPL-4626-20.docx
P.C.:-
1. This petition under Article 226 of the
Constitution of India is filed by the petitioner - a co-
operative housing society, raising issues interalia in regard to the access to the refuge area located at the 'B' wing of the petitioner's building. It is the petitioner's case that the developer who is now undertaking construction of the 'D' wing, has also closed the South side gate of the petitioner's building which provided access to the East side of the refuge area. It is contended that such access which was available since 1995 is blocked. The petitioner by its letters addressed to the municipal authorities, complained of such closure of the South gate and the blocking of the refuge area, being a threat to the lives of the residents. The petitioner contends that although there were site visits of the officers of the Municipal Corporation, as also, a report to that effect having being prepared, no action was taken by the municipal authorities to restore the refuge area. In these circumstances, the petitioner has prayed for the following reliefs:-
"a) That this Hon'ble Court be pleased to issue a Writ in the nature of Mandamus or any other Writ directing the Respondents to take appropriate action 2 PVR WPL-4626-20.docx in accordance with law so that the access to the refuge area as per law is restored from both sides -
from the west side (main road) and also the south side gate of the petitioner.
b) The Petitioners submits that in the facts and circumstances of the present case, it is necessary in the interest of justice that this Hon'ble Court be pleased to issue a Writ in the nature of Mandamus or any other Writ directing the Respondents to ensure that the refuge area be restored to the requisite size and direction in accordance with law.
b.1) The Petitioners submit that in the facts and circumstances of the present case, it is necessary in the justice that this Hon'ble Court be pleased to issue a Writ in the nature of Certiorari or any other Writ quashing the Notice dated October 29, 2020 (Exhibit G20) issued under section 53 of the MRTP Act by the Respondent no.6.
c) That pending the hearing and final disposal of the Writ petition, this Hon'ble Court be pleased to direct the Respondents to immediately remove any kind of barricade by which the south side gate of the petitioner has been closed so that access to the east side refuge area from the south side gate is always available, and to stay operation of the notice dated October 29, 2020 issued by the Respondent no.6 (Exhibit G20)."
2. On earlier occasions this petition was heard by a co-ordinate Bench of this Court. An order came to be passed by the co-ordinate Bench on 20 October 2020 whereby the Corporation was directed to verify the correctness of the allegations made by the petitioner. In a subsequent order dated 29 October 2020, the Chief Fire Officer was also directed to inspect the subject premises. M/s.Shetgiri and Associates, an independent architect was also appointed to 3 PVR WPL-4626-20.docx visit the premises of the petitioner-society interalia to ascertain whether the refuge area of the building is accessible; whether the construction in the refuge area was as per the sanctioned plan; whether there is a South gate to the society complex; whether the said gate is required to be opened to fire engines to have access to the society buildings in case of fire. The said report was placed on record. Mr.Shetgiri was also thereafter provided with additional documents. The petition stands at this when we had taken up its hearing on the earlier occasion and today.
3. We have heard Dr.Saraf, learned Senior Advocate appearing for the petitioner and Ms.Kiran Bhagalia, learned Counsel appearing for the Municipal Corporation. We may note that although the developer who had undertaken the construction of 'A', 'B' and 'C' wings of the building, namely M/s.Nasar Associates, and now who is undertaking construction of the 'D' wing is not impleaded as a respondent, the co-ordinate Bench of this Court had permitted the developer to be represented by Mr.Tamboly. The developer has placed on record an affidavit dated 25 4 PVR WPL-4626-20.docx November 2020 of Shri.Sayed Ghazali Nasar, sole proprietor of M/s.Nasar Associates.
4. Having heard learned Counsel for the parties, we find that the petition ought not to be entertained for more than one reason. In our opinion, the petitioner is not bonafide pursuing this petition by invoking the discretionary jurisdiction of this Court under Article 226 of the Constitution. It clearly appears to us that the petitioner- society has an axe to grind against the developer and it is for such real reason, this writ petition has been belatedly filed and that too as an afterthought. This would be clear from the following discussion.
5. Indisputedly there are three existing wings of the petitioner-society. Wings 'A' and 'C' have stilt plus seven floors for which an occupation certificate was issued on 15 February 2001. The 'B' wing comprises of stilt plus 14 floors for which an occupation certificate was granted on 26 September 2016. The dispute as raised in the petition concerns the refuge area which is located on the 8 th floor of 'B' wing. There is another wing namely 'D' wing of which 5 PVR WPL-4626-20.docx construction is stated to be in progress and for which a commencement permission was granted some time in March 2015.
6. The case of the petitioner in complaining about the access to the refuge area of 'B' wing is averred in paragraph 3 of the petition, to contend that the access to the refuge area from the West side main road, is blocked due to the permission granted by the municipal corporation for construction of Flat B-801, on the West side of the said wing. It is contended that the refuge area is also being blocked due to closure of the South-end gate. In this context, it may be observed that it is an admitted position on record that there are two flats on the eighth floor and leaving aside the areas of Flats B-801 and B-802, there is an adjoining refuge area. Such construction of the flats is as per the sanctioned plans, the location of the refuge area is also as per the sanctioned plans. A construction commencement certificate was issued for the 'B' wing on 8 August 2009 and on completion of the construction, an occupation certificate came to be issued on 26 September 2016. At no point of time, when either the construction of 6 PVR WPL-4626-20.docx 'B' wing was in progress or on receipt of the completion certificate and thereafter when the occupation certificate was issued, the petitioner had any grievance in regard to the construction of the 'B' wing or the location of the refuge area or for that matter construction of the two flats on the eighth floor. It is also not the case of the petitioner that the petitioner at any point of time had objected much less challenged the sanctioned plans when the sanctioned plans had confirmed the existing location of Flat B-801 and B-
802. Almost four years after the grant of the occupation certificate, the petitioner has filed this petition on 29 September 2020. The petition is clearly barred by the principles of delay and laches when the petitioner ostensibly raises an issue on the access to the refuge area and within it the placement/location of Flat No.B-801 and B-802, in contending that location of such flats blocks the access to the refuge area. It appears that the petitioner-society was never diligent in pursuing any such contention. At such belated stage after the construction is over, occupation certificate having being issued by the Corporation and the flats on the 8th floor being already sold, and when the parties have changed their position, to entertain any such 7 PVR WPL-4626-20.docx grievance in the present proceedings, would result in abuse of the process of the Court. However, the reason for the petitioner to resort to litigation by way of present proceedings does not appear to be innocuous, as clear from the surrounding circumstances. The petitioner already has an existing dispute with the developer on conveyance of the land, which is subject matter of a pending writ petition filed in this Court (Writ Petition No.3429 of 2019). The competent authority had rejected the petitioner's claim for a conveyance. It appears that at such juncture the present petition has been filed, seeking reliefs essentially on the actions taken by the developer.
7. Be that as it may, what is more striking as seen from the tenor of the prayers as made in the petition is an intention of the petitioner to dislodge the construction which was undertaken by the developer of Flat B-801 and B-802 and as noted above, sold to third parties. If the prayers as made in the petition are granted, it would certainly affect the rights of the persons who have purchased such flats on the 8th floor and who are not impleaded as parties to the present petition. Such conduct 8 PVR WPL-4626-20.docx on the part of the petitioner, in our opinion, is quite gross. The petitioner has neither impleaded the developer who is undertaking construction of the 'D' Wing and who has put some barricades for the purpose of safety, which according to the petitioner blocks the entry of fire engines, but also the third parties who are purchasers of flat No.B-801 and B-
802. The petitioner has not bothered to care about the legitimate and bonafide rights of the such third parties in making such specious pleas. The petitioner, in our opinion, is required to be non-suited only on the ground of non- joinder of necessary parties to the petition. It is astonishing that in the absence of such necessary parties, the petitioner has claimed reliefs affecting their rights. This reflects not only on the bonafides of the petitioner in pursing the present proceedings but shows the real intention of the petitioner behind the present proceedings. The petition is thus an abuse of the process of the Court.
8. In any event, it is not the case of the petitioner that the developer has undertaken construction beyond the plans. The construction has been undertaken as per the sanctioned plans. The Municipal Corporation is the final 9 PVR WPL-4626-20.docx authority to consider every parameter of the construction including the observance of the conditions of the Development Control Regulations in relation to fire safety. In the facts of the case, we do not interfere in the wisdom of the Corporation qua its expertise as employed in sanctioning the plans and granting of an occupation certificate. We may additionally observe that the questions which are now being belatedly raised by the petitioner are also disputed questions of facts as to whether a particular entry has been blocked or not, which would involve parties to lead evidence on the respective pleas. Such exercise cannot be undertaken by this Court in exercise of its writ jurisdiction.
9. As a sequel to our above discussion, we are quite certain that the petition ought to fail. It is accordingly rejected No costs.
G. S. KULKARNI, J. CHIEF JUSTICE
Digitally
signed by
Prashant
Prashant V. Rane
V. Rane Date:
2021.03.19
11:49:09
+0530
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