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28. The Respondent Nos. 1 and 2 have opposed the Writ Petition by filing joint Reply. The plea taken by the Respondents in their Reply, reduced to their essence, is to effect that that the Writ Petition involves disputed questions of fact, which cannot be adjudicated in a Writ Petition; that the Writ Petitioners have an alternate, efficacious remedy by way of Civil Suit; that the dispute is purely contractual in nature involving interpretation of the terms and conditions of the contract, which cannot be entertained in a Writ Petition; that this is not a case of infringement of any constitutional, statutory or fundamental right of the Petitioner; that the Demand Notice has issued on account of breach of conditions of the Lease Deed and, therefore, the same does not involved violation of any constitutional right; that Articles 2(a) and 2(d) of the Lease Deed, which require completion of the construction within a period of four years from the date of Lease Deed are binding and mandatory clauses in the Lease Deed. Therefore, those are enforceable under the law; even if the delay in construction has occurred due to interim order of Court or on account of force majeure, even than, in view of Article 2(d), any extension of time could only been granted upon payment of additional premium. Since the MMRDA would not have any power Reliance-oswp-242-2018-J-R.doc to waive such amount, therefore, payment of additional premium/penalty was inevitable in case of delay; that the restraint order of the Court was limited only to the additional area of 31,500 sq.mtrs. of commercial FSI. Therefore, the same did not prevent commencement and completion of construction of the Convention Centre; that allotment of additional built-up area was optional. Since the Petitioners have opted for the additional built- up area, therefore, the allotment of additional built up area cannot be a justifiable ground for the delay in completion of construction; that the Petitioners have issued an unconditional undertaking on 14th December 2016 agreeing to pay the additional premium/penalty for grant of extension of time. Therefore, they would be bound by such undertaking; that the Writ Petitioner has approached this Court by suppressing material facts and particulars pertaining to the undertaking dated 14 th December 2016, therefore, the Writ Petition is liable to be dismissed on such count alone; that the decision of the MMRDA to extend the time period from four years to six years was applicable prospectively, i.e., with effect from August, 2015 and therefore, the same would not cover the case of lessees such as the Petitioner in respect of whom, the Lease Deed was executed prior to August, 2015.

41. The learned Senior Counsel for the Respondents has further argued that the recovery sought by Respondent No.1 is strictly in accordance with the provisions of the MMRDA Act, the MMRDA (Disposal of Land) Regulations, 1977 as well as the terms and conditions of the Lease Deed executed by and between the parties. According to learned counsel, the clauses contained in the Lease Deed are statutory in nature. Therefore, under Article 2(e), extension of time for completion of construction can be granted only upon payment of additional premium at the prescribed rates which cannot be waived even by the MMRDA.

"38. The MMRDA constituted a single member committee of retired Judge of the Supreme Court to decide whether the MMRDA should give concession in recovery of premium considering the time required for plot owner to obtain permissions from various authorities for construction of building thereon. It is contended that one member committee has concluded that the charging of premium for extension of time for completing construction in Bandra-Kurla Complex area, specifically in case where additional built up area has been allotted by the MMRDA, was illegal. In its 138th meeting held on 26th August 2015, the MMRDA had acknowledged the difficulties faced by the lessees and that the condition of completion of construction within 4 years of the execution of the lease was adversely affecting the tendering process. The MMRDA had appointed an expert one man committee of retired Supreme Court Judge in that regard. The single member committee has advised that the period of 6 to 7 years be granted for completion of construction.
39. The lease deed entered into by the MMRDA with the lessees are as per form D, prescribed under the MMRDA (Disposal of Lands) Regulations 1977. Clause 2(a) of the lease deed provides that for building plans to be submitted to country and town planing division for approval within 3 months from the date of lease. Clause 2(c) of the lease deed provides that no work is to be carried out until all plans, elevations, specifications are approved by the concerned authorities. Clause 2(d) provides that within 3 months of the approval of plans, the lessee is to commence construction which is to be completed within four years of the lease. Clause 2(e) provided for extension of time. Clause 2(e) contemplates a situation when the time for completion of construction can be extended, parties to the Reliance-oswp-242-2018-J-R.doc contract contemplated that certain uncertainties or situations may arise which may require more time for completion of the construction. In view of this, time is not essence of the contract between the parties and rightly so since construction of any building in Bandra Kurla Complex, several permissions are required from the various authorities and not only from the MMRDA who is planning authority for the Bandra Kurla area, namely, (1) The environmental clearance under the Environmental Impact Notification from the Ministry of Environment and Forest.