Bombay High Court
Pankaj Shankarlal Bhanushali And Ors vs The Municipal Commissioner, Municipal ... on 29 January, 2020
Author: B. P. Colabawalla
Bench: S. J. Kathawalla, B. P. Colabawalla
18.wpl.251.20.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION(ST.) NO. 251 OF 2020
Pankaj Shankarlal Bhanushali & Others ..Petitioners
Vs.
The Municipal Commissioner,
Municipal Corporation of City of Panvel
& Others ..Respondents
Mr.Chetan Shah a/w. Ms.Zill Shahanand i/b. J. Nishar and Company, for the
Petitioners.
Mr. Milind Sathe, Senior Advocate i/b. Mr. J. G. Aradwad (Reddy), Mr. Arvind
Aswani, for Respondent Nos. 1 and 2.
None for Respondent No. 3 CIDCO.
Mrs.M.P.Thakur, AGP, for Respondent No.4 State.
CORAM : S. J. KATHAWALLA &
B. P. COLABAWALLA, JJ.
DATE : JANUARY 29, 2020 P. C. :
The present Petition has been fled under Article 226 of the Constitution of India seeking a Writ of Mandamus directing Respondent Nos.1 and 2 to grant the Occupation Certifcate for a building consisting of stilt plus 7 upper foors comprising of 35 residential units situate at plot No.70/1 + 71, Sector 4A, Asudgaon admeasuring 650 sq.mts. area, Taluka -Panvel, District- Raigad.
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18.wpl.251.20.doc 2 According to the Petitioners they have been constrained to fle the present Petition invoking this Court's extra ordinary jurisdiction due to the total inaction on the part of Respondent Nos.1 and 2 by not issuing the Occupation Certifcate which was applied for pursuant to the Petitioners' application dated 19th March, 2019. It is due to this inaction that the Petitioners have approached this Court under Article 226 of the Constitution of India. 3 The facts in the present case are undisputed. Under a Tripartite Agreement dated 14th May, 2015 executed between Respondent No.3 (CIDCO), the persons mentioned in paragraph 5 of the Petition (the Original Licensees) and Petitioner Nos. 1 to 3, the rights in plot No.70/1 + 71, Sector 4A, Asudgaon admeasuring 650 sq.mts. area, Taluka- Panvel, District- Raigad (the said plot) were assigned by the Original Licensees in favour of Petitioner Nos.1 to 3. Thereafter, Petitioner Nos.1 to 3 formed a partnership frm in the name and style of "Ashapura Realty" (Petitioner No.4).
4 Since the Petitioners were desirous of carrying on construction on the said plot, on 7th July, 2016, the Petitioners paid to Respondent No.3 (the then Planning Authority) towards (i) balcony enclosure charges (ii) development charges (iii) infrastructure development charges and (iv) premium Aswale - Final 2/10 ::: Uploaded on - 11/02/2020 ::: Downloaded on - 12/06/2020 03:28:13 :::
18.wpl.251.20.doc towards fower bed etc. In lieu thereof, on 28th July, 2016, Respondent No.3 (CIDCO) issued a development permission /commencement certifcate to the Petitioners for construction of a building on the said plot. The commencement certifcate inter alia granted permission to the Petitioners to construct stilt + 7 upper foors comprising of 35 residential units on the said plot. After the aforesaid permission was granted by Respondent No.3 (CIDCO), pursuant to a Notifcation dated 29th September, 2016 issued by Respondent No.4 (Urban Development Department, State of Maharashtra), Respondent Nos.1 and 2 (Panvel Municipal Corporation) assumed the role of the Planning Authority inter alia in respect of the said plot in place of Respondent No.3. 5 It is the case of the Petitioners that after receiving the commencement certifcate, they have completed the construction of the building comprising of stilt + 7 upper foors comprising of 35 residential units. They have also registered their project with the Maharashtra Real Estate Regulatory Authority on 1st August, 2017 wherein completion date of the project has been estimated to be 30th September, 2019. 6 It is the case of the Petitioners that since the building was complete in all respects, they, through their Architect M/s.D.G.Shah and Associates, applied for the Occupation Certifcate on 19 th March, 2019. Aswale - Final 3/10 ::: Uploaded on - 11/02/2020 ::: Downloaded on - 12/06/2020 03:28:13 :::
18.wpl.251.20.doc Thereafter, the Petitioners have visited the ofce of Respondent Nos.1 and 2 on several occasions but to no avail and they have been unable to obtain the Occupation Certifcate for the said building. It is in these circumstances that the present Petition has been fled.
7 In this factual background, Mr. Shah, the learned counsel appearing on behalf of the Petitioners submitted that the Petitioners have constructed the building for which an Occupation Certifcate is sought as per the Development Permission granted by Respondent No.3. He submitted that after the building was complete, the Petitioners applied for the Occupation Certifcate which has not been granted till date. He submitted that it is nobody's case that the construction of the building is in violation of any of the permissions granted by Respondent No.3 or Respondent Nos.1 and 2. This being the position, he submitted that there was absolutely no reason whatsoever why Respondent Nos.1 and 2 ought not to have processed their application for the grant of an Occupation Certifcate.
8 Mr. Shah submitted that not granting the Occupation Certifcate is causing grave prejudice to the Petitioners in as much as the project of the Petitioners is registered with the Maharashtra Real Estate Regulatory Authority wherein the estimated completion date is shown as 30 th September, 2019. He Aswale - Final 4/10 ::: Uploaded on - 11/02/2020 ::: Downloaded on - 12/06/2020 03:28:13 :::
18.wpl.251.20.doc submitted that the Petitioners have sold all the residential units in the said building and are now facing constant pressure from the fat purchasers to hand over their respective independent units which the Petitioners are unable to do for the want of an Occupation Certifcate. He, therefore, submitted that this Petition be allowed and Respondent Nos.1 and 2 be directed to grant the Occupation Certifcate for the aforesaid building in a time bound manner. 9 On the other hand, Mr.Sathe, the learned Senior Counsel appearing on behalf of Respondent Nos.1 and 2 submitted that it is true that the construction of the aforesaid building has been done as per the Development Permission and sanction granted by Respondent No.3 (CIDCO). He submitted that in 1991, the CIDCO authorities had taken a decision that the foor area of the balcony to the extent of 15% of the built up area of the respective foors be permitted free of FSI as per the provisions of the General Development Control Regulations for Navi Mumbai, 1975 (hereinafter called as "GDCR"). It is on the basis of the said decision of CIDCO that it has issued all Development Permissions since 1991. Thereafter, in 1991 the Government of Maharashtra vide a Notifcation dated 24th September, 1991, incorporated a new provision in the GDCR under Regulation 16.3.5 by inserting clause (b) as per which the foor area of balcony to the extent of 15% of the built up area of the respective foors was permitted free of FSI.
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18.wpl.251.20.doc 10 Thereafter, Mr.Sathe submitted that in the year 2005, CIDCO moved a proposal for a separate mention of cupboard, fower beds etc in the GDCR and also proposed certain modifcations for levy of premium and even the CIDCO board approved the said proposal on 2 nd December, 2005. This proposal for including the cupboard, fower beds etc in the GDCR, was done after following the due procedure of inviting suggestions and objections thereto and thereafter CIDCO decided to submit the said proposal for approval of the State Government for sanction in the year 2006. Though the sanction is still awaited, CIDCO authorities granted permission as if the provisions of Regulation 16.3.5 stood amended as per their proposal permitting the balcony, fower beds, cupboard etc as free of FSI and this practice has been followed by CIDCO since the year 2006.
11 Mr. Sathe submitted that this practice of CIDCO was challenged in the year 2016, by one Sanjay Kumar Damodar Surve by fling Public Interest Litigation No. 154 of 2016, wherein a relief was sought that the policy of CIDCO in granting Development Permission and/or sanctioning of building plans as per their proposed amendment to the GDCR approved by it vide Resolution dated 2nd December, 2005 be declared as illegal and bad in law, as the said proposal had not yet got sanction from the Government as required by law. Aswale - Final 6/10 ::: Uploaded on - 11/02/2020 ::: Downloaded on - 12/06/2020 03:28:13 :::
18.wpl.251.20.doc The said Mr. Surve also made various complaints to CIDCO as well as the State Government. Since the Urban Development Department of the Government of Maharashtra (Respondent No.4) vide its letter dated 3rd August, 2017 pointed out that CIDCO had committed certain illegalities / irregularities while sanctioning Building Permissions on the basis of the proposed amended GDCR, the State Government directed CIDCO to take necessary action against the concerned ofcers for the said irregularities/illegalities. 12 Mr. Sathe submitted that since no restraint orders were passed by this Court in Public Interest Litigation No. 154 of 2016, Respondent Nos.1 and 2 issued Occupation Certifcates to two other projects which are similarly situated to that of the Petitioners. Even those Occupation Certifcates are under challenge before this Court in Public Interest Litigation Nos. 121 of 2019 and 122 of 2019 fled by Mr. Surve on the same grounds as raised in the earlier Public Interest Litigation No. 154 of 2016. The aforesaid three Public Interest Litigations are pending in this Court for hearing and fnal disposal. Mr. Sathe submitted that it is only for this reason that Respondent Nos.1 and 2 have not granted the Occupation Certifcate to the Petitioners as sought for in the above Writ Petition.
13 We have heard the learned counsel for the parties at length and Aswale - Final 7/10 ::: Uploaded on - 11/02/2020 ::: Downloaded on - 12/06/2020 03:28:13 :::
18.wpl.251.20.doc have perused the papers and proceedings in the present Writ Petition. At the out set, we may note that Respondent No.3 (CIDCO) has admittedly granted Development Permission to the Petitioners. The construction that has been carried out by the Petitioners is also admittedly as per the permissions granted by CIDCO and there is no violation of the said permissions. CIDCO proceeded to grant development permission to the Petitioners on the basis that Regulation 16.3.5 stood amended as proposed by them even though there was no sanction given by the State Government. It is on this basis that permissions were granted to the Petitioners for constructing the aforesaid building. On going through the entire record and on the basis of what was canvassed before us, we do not fnd that the Petitioners can be blamed for any of the actions of CIDCO. The Petitioners have constructed their building and have completed the same in all respects strictly complying with the permissions granted by CIDCO. This being the case, we do not think that it would be fair to the Petitioners to deny them the grant of the Occupation Certifcate.
14 This being said, we are also mindful of the fact that CIDCO has granted these permissions proceeding on the wrong premise. In fact, as stated earlier, the State Government has also directed CIDCO to conduct an enquiry against its ofcers who have committed the illegalities of granting permissions on the basis that GDCR 16.3.5 stood amended/modifed as proposed by them. Aswale - Final 8/10 ::: Uploaded on - 11/02/2020 ::: Downloaded on - 12/06/2020 03:28:13 :::
18.wpl.251.20.doc Those issues are all pending in the three PILs mentioned earlier. In these circumstances, and to balance the equities between the parties, we think it would be in the interest of justice if Respondent Nos.1 and 2 are directed to grant the Occupation Certifcate to the Petitioners subject to certain conditions. In view thereof, the following order is passed :
(a) Respondent Nos.1 and 2 shall grant the Occupation Certifcate to the Petitioners in respect of the building consisting of stilt plus 7 upper foors comprising of 35 residential units situate at plot No.70/1 + 71, Sector 4A, Asudgaon admeasuring 650 sq.mts. area, Taluka -Panvel, District- Raigad, if they are satisfed that the construction of the Petitioners' building is otherwise complying with all the requirements as per the permissions granted by CIDCO. This exercise shall be done within a period of four weeks from today;
(b) the Occupation Certifcate granted in favour of the Petitioners shall be subject to the fnal outcome of PIL No.154 of 2016 and PIL Nos. 121 and 122 of 2019. Aswale - Final 9/10 ::: Uploaded on - 11/02/2020 ::: Downloaded on - 12/06/2020 03:28:13 :::
18.wpl.251.20.doc 15 It is made clear that by virtue of this order, the Petitioners herein or any of the fat purchasers shall not be entitled to claim any equities whatsoever in the event the decisions in PIL No. 154 of 2016 and/or PIL Nos. 121 and 122 of 2019 are adverse to the interest of the Petitioners herein or to that of the fat purchasers.
16 We have passed this order only to balance the equities between parties and this order should not be construed to mean that we have, in any way opined one way or another on the issues that are pending in the aforesaid three Public Interest Litigations.
17 The Writ Petition is accordingly disposed of. There shall be no order as to costs.
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