Bombay High Court
High Court On Its Own Motion vs State Of Maharashtra Thru Prin. ... on 4 October, 2023
Author: G.S. Patel
Bench: G.S. Patel
901-ASSMWP-02-2023.DOC
Sumedh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SUO MOTU WRIT PETITION NO. 2 OF 2023
High Court On Its Own Motion ...Petitioner
Versus
State of Maharashtra Through Principal
Secretary & Ors ...Respondents
Mr Sharan Jagtiani, Senior Advocate, as Amicus Curiae, with
Vishal Narichania, Sumeet Nankani, Saurabhi Agrawal and
Akshay Doctor, for the Applicant.
Mr PP Kakade, GP, with MP Thakur, AGP, for Respondent No. 1-
SUMEDH State.
NAMDEO
SONAWANE Mr Tejas Dande, with Bharat Gadhavi, Trushna Shah, Pratik
Digitally signed by
Sabrad, Vikrant Khare, Seema Patil & Mansi Dande, for
SUMEDH NAMDEO
SONAWANE Respondent No.2-NMMC.
Date: 2023.10.05
16:16:55 +0530 Mr Rohit Sakhdeo, for Respondent No.3- CIDCO and Respondent
No.6- PMRDA in WP8803/2021.
Mr Akshay Jadhav, for Respondent Nos. 4 to 6.
Mr Khooshnud Akhtar, i/b Shivaji Nirmale, for Respondent No.7-
Developer.
Ms Ushajee Peri, with Vikas More, Devangi Jagtap i/b Lexcorp
Partners, for Respondent No.8-MSEDCL.
Mr RD Soni, i/b Jayesh Gawde, for Respondent Nos. 9 to 31.
Mr SK Dhekale, Court Receiver present.
CORAM G.S. Patel &
Kamal Khata, JJ.
DATED: 4th October 2023
PC:-
Page 1 of 4
4th October 2023
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901-ASSMWP-02-2023.DOC
1. Respondent No. 8 before us is Maharashtra State Electricity Distribution Company Limited ("MSEDCL"). The information presently available is that MSEDCL has granted approximately 17 metered connections to individual apartments in the buildings as on August 2023. This was done against production of certain documents. We will require an Affidavit with full particulars including copies of the documents sought and obtained by MSEDCL because it is clear that the Builder, Respondent No. 7 had no title to the land and no building permissions whatsoever.
2. Another aspect that MSEDCL must also answer on Affidavit is what power supply it provided and on what basis and documents provided while the construction was going on. It seems to us inconceivable that a construction of this kind could have been undertaken without regular power supply as is usual in all construction.
3. Mr Soni appears for Respondents Nos. 9 to 31. These are the occupants of the flats. We had appointed a Receiver and he has obtained the details of the various occupancies. Mr Soni says that while the developer may not have obtained permissions, the present structure is such that it can be "regularised" or brought into compliance with law given the extent of the construction and the present Development Control Regulations. He submits that Respondents Nos. 9 to 31 are all persons who have taken various loans to purchase these residential units. They are repaying the amount by EMIs and interest. The flats are security for the Page 2 of 4 4th October 2023 ::: Uploaded on - 05/10/2023 ::: Downloaded on - 06/10/2023 05:12:40 ::: 901-ASSMWP-02-2023.DOC repayment of those loans. We are expressing no opinion on these submissions at this stage.
4. Mr Jagtiani learned Senior Counsel appearing as amicus curiae has submissions to make as to whether such pleas to equity can even be entertained in a situation such as this. Both statutory planning authorities, viz., Navi Mumbai Municipal Corporation ("NMMC") and City and Industrial Development Corporation of Maharashtra ("CIDCO") have, and there is really no other word for it, being systematically defrauded or cheated by the developer. That developer may indeed have much to answer for in regard to Respondents Nos. 9 to 31 as well. There are many considerations in law that we will have to assess for this is a peculiar situation where the entire construction is without any permission whatsoever.
5. In addition, there is no disposal of the land by CIDCO in accordance with the applicable land disposal regulations. If the disposal was to a private party that was required to be done in a certain manner either by a tender process or by a public auction tender or in accordance with the Rules. The loss to CIDCO is one that can only be estimated but for that purpose we permit CIDCO to file a further Affidavit showing examples of auction or tender disposals of similar plots in a comparable area so as to give us some measure of the extent of the loss to a public corporation.
6. This is quite apart from the extensive prejudice to the NMMC. Mr Dande has already filed a compilation showing the various steps that the NMMC took over a period of time in an Page 3 of 4 4th October 2023 ::: Uploaded on - 05/10/2023 ::: Downloaded on - 06/10/2023 05:12:40 ::: 901-ASSMWP-02-2023.DOC attempt to stop the corporation. We will need to address that separately, i.e., as a matter of interpretation of the Maharashtra Municipal Corporation Act, 1949 ("the MMC Act") for the purpose of clarifying that Municipal Corporations are not confined to merely issuing notices but there is a procedure prescribed by law for actually taking action to ensure compliance with notices and to bring down offending structures. Indeed, we propose to examine the question of whether it is even sufficient for a Municipal Corporation to only issue a notice and do nothing further thereafter.
7. The Affidavits of the MSEDCL, CIDCO and Respondents Nos. 9 to 31 are to be filed by 20th October 2023.
8. List the matter on 27th October 2023.
9. The previous orders will continue until the next date and in addition MSEDCL will not grant any further electricity connections without an express orders of this Court.
10. Respondent No. 7 is the developer who had no permissions. We permit him to put in whatever Affidavit he is able to put in by the next date.
11. The Additional Written Submissions by Mr Jagtiani are taken on record.
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